Dorf on Law

Growing Wheat or Weed is Economic Activity, and so is Making Booze

2026-04-15T07:00:00.003-04:00

In 1868, Congress passed a law forbidding home distilleries. That law remains on the books today. It is codified as 26 U.S.C. § 5178(b). Last week, a unanimous 3-judge panel of the U.S. Court of Appeals for the Fifth Circuit held that the law is unconstitutional because it exceeds the powers granted to Congress. As I shall explain, in light of a key concession by the government, that holding is arguably correct. As I shall also explain, the concession was a blunder, and while the outcome of the case is defensible, much of the Fifth Circuit opinion is not.

Let's start with the statute's text. As relevant here, it provides: "No distilled spirits plant for the production of distilled spirits shall be located in any dwelling house, in any shed, yard, or inclosure connected with any dwelling house . . . ."

Although codified in Title 26, which is the Internal Revenue Code, and thus arguably an exercise of the power of Congress to impose taxes (about which more in a moment), the law is most readily sustainable as an exercise of the power of Congress to regulate interstate commerce. Hold on, you say: How is a home distillery used to make spirits that need not ever be sold commercially, much less sold interstate, a proper subject of regulation under the Commerce Clause? The answer to that question will be obvious to anyone who has gone to law school since October 1942, when the Supreme Court decided Wickard v. Filburn.

Farmer Filburn objected to a penalty imposed on him for growing more wheat than he was allotted under a quota pursuant to the Agricultural Adjustment Act of 1938. The mere growing of wheat on his farm, he said, was not in any way a form of interstate commerce. The Court didn't care. The more wheat an individual farmer grows, the more the farmer can sell (either directly or via the products of the animals to whom the wheat is fed); and even if the farmer sells none, growing and consuming wheat and products derived from it reduces market demand for wheat.

As with wheat, so with weed. In 2005, in Gonzales v. Raich, the Court rejected the contention that Congress cannot regulate home-grown and home-consumed marijuana pursuant to the Commerce Clause. As Justice Stevens put the point for the majority, the "production" of a commodity for which there is a market is regulable "economic activity" even if the particular objects of regulation do not end up in that market.

And as with wheat and weed, so with booze. Subject to some limits not relevant here that arise out of the 21st Amendment (repealing prohibition), Congress has the power to regulate the distilling of spirits. Just as it can require, per the Fair Labor Standards Act, that people who work in a distillery be paid fairly, and that per the Occupational Safety and Health Act, the working conditions in a distillery meet various safety and health standards, so it can regulate the site of production. All of that follows from the proposition that distilling spirits is regulable pursuant to the Commerce Clause.

Or at least I would have thought before I read the dubious district court opinion that the Fifth Circuit affirmed last week. There, Judge Pittman (a 2019 Trump appointee) held that for intrastate economic activity to be regulable under the Commerce Clause, it must: 1) substantially affect interstate commerce in the aggregate (citing Wickard); (2) serve a comprehensive statute that regulates commercial activity on its face (citing Raich); AND (3) be necessary to make that broader commercial regulation effective (again citing Raich).

But here's the thing. I put "AND" in all caps to emphasize that Judge Pittman made that bit up. There is no Supreme Court case (and, so far as I'm aware, no federal appeals court case either) that says that those three elements are all required in conjunction. Rather, prior cases suggest that they are to be connected by an "or." Because home-distilling of booze is unquestionably economic activity that, in the aggregate, affects interstate commerce, it is regulable by Congress. Full stop. The provision in question should have been upheld as a regulation of interstate commerce.

Yet inexplicably, the government chose not to appeal the Commerce Clause ruling. At first I thought perhaps the Trump Department of Justice chose not to appeal the Commerce Clause portion of Judge Pittman's ruling on ideological grounds. However, the appellate brief waiving the Commerce Clause as a basis for sustaining the law was filed during the Biden administration. And it plainly waived the argument, as the Fifth Circuit said. The appellate brief argued that the plaintiffs lacked standing and that, even if they had standing, the law should be sustained under Congress's power to lay and collect taxes. There was no appeal on the Commerce Clause. That was the blunder to which I referred above.

Accordingly, after concluding (rightly, in my view) that the plaintiffs have standing, the substantive portion of the Fifth Circuit's opinion concludes that the law cannot be sustained on the basis of the power to tax. Before explaining what I think is defensible and what is not in the Fifth Circuit decision on the merits, it's worth asking how, according to the government, the law implicates the taxing power.

The answer is fairly straightforward. When the law was enacted in 1868, it was relatively easy for distillers to evade the tax by hiding their activity. They did so by operating out of their homes rather than in large and obvious distilleries. By making it a crime to operate a home distillery, Congress increased the cost of doing so--which, in turn, made it easier for federal revenue officers to identify distilleries and collect the revenue due from them. This is a classic example of a law that is not itself an exercise of the relevant power (because a prohibition on home distilling is not a tax on home distilling) but that is necessary and proper to the power (because it facilitates the collection of taxes on distilling that occurs elsewhere).

Anybody who has read the broad language of McCulloch v. Maryland (1819) or, much more recently, United States v. Comstock (2010), will recognize the foregoing as a very standard necessary-and-proper argument. Creation of a national bank (in McCulloch) is not itself taxing, spending, or the regulation of interstate commerce, but it facilitates the exercise of all of those powers. Civilly confining a person who is mentally ill and dangerous (in Comstock) is not itself an exercise of the power to say, create a post office, but it is necessary and proper to that power as applied to someone who committed mail fraud and then, while serving a sentence in a federal prison, developed a mental illness that makes him dangerous, because civil commitment facilitates the initial imprisonment, which facilitates the criminalization of mail fraud, which facilitates the post office doing its job. The argument for validity under the Necessary & Proper Clause is much more direct with respect to the home distilling prohibition than with respect to the law upheld in Comstock. Thus, it follows a fortiori from Comstock that the home distilling prohibition is necessary and proper to the taxing power.

So why do I say that the Fifth Circuit decision is defensible? Because while running a home distillery was a means of evading taxation in 1868, it very likely is not today. Modern distilleries produce tens or even hundreds of thousands of barrels of spirits per year. Hidden untaxed output from basement or garage distilleries is thus inconsequential in its revenue impact. Or at least that argument strikes me as plausible, given what I know (which, admittedly, is essentially nothing) about distilling spirits.

Thus, if defensible, the Fifth Circuit ruling relies on a very modest version of living Constitutionalism of the kind acceptable even to most originalists. A law or practice can be constitutional when enacted and for some considerable period thereafter, given conditions at the time, but unconstitutional when conditions change. Thus, although the search-incident-to-arrest doctrine at one time allowed police to search any item found on a person, the Supreme Court carved out a new exception to that principle for mobile phones in Riley v. California, given the unprecedented ability to look into every aspect of a person's life occasioned by a mobile phone search.

Yet while the conclusion that the home distilling prohibition is no longer necessary and proper to the taxing power is defensible, the Fifth Circuit opinion says some other, quite dubious things that suggest it thinks the law was never necessary and proper. Among those dubious statements is its reliance on the Supreme Court's opinion in United States v. Dewitt (1869). There, the government sought to sustain a prohibition on selling one kind of oil as necessary and proper to collecting revenue on sales of other kinds of oils that were taxed. The idea was that forbidding the untaxed oil would increase demand for, and thus revenue derived from, the taxed oil. The Court rejected this argument but in so doing expressly distinguished the very home distillery ban at issue here:

we have been referred to provisions, supposed to be analogous, regulating the business of distilling liquors, . . . but the analogy appears to fail at the essential point, for the regulations referred to are restricted to the very articles which are the subject of taxation, and are plainly adapted to secure the collection of the tax imposed; while, in the case before us, no tax is imposed on the oils the sale of which is prohibited. If the prohibition, therefore, has any relation to taxation at all, it is merely that of increasing the production and sale of other oils, and, consequently, the revenue derived from them, by excluding from the market the particular kind described.

Dewitt thus not only doesn't support the Fifth Circuit's conclusion; it supports the opposite conclusion. There are other problems with the Fifth Circuit's analysis but I won't dwell on them. I'm reserving most of my criticism here for the Department of Justice lawyers in the Biden/Garland era for waiving the Commerce Clause argument on appeal.

Finally, I should make clear that I take no position on the policy wisdom of the federal prohibition on home distilling. A tiny bit of Internet research reveals that there are some serious risks involved in the activity, including explosion, fire, and toxicity. Whether those risks justify prohibition or mere regulation, and whether that should be accomplished at the federal, state, or local level are questions about which I have no expertise or opinion, but, in any event, they were not at issue in the Fifth Circuit case.

--Michael C. Dorf

How Many Divisions Has The Pope?

2026-04-14T07:00:00.001-04:00

As Winston Churchill tells the story in volume 1 of his history of World War II, The Gathering Storm, in 1935 Stalin was asked by French Foreign Minister Pierre Laval whether he, Stalin, might support Catholicism in Russia. "It would help me so much with the Pope," Laval says. "Oho!" Stalin replies. "The Pope! How many divisions has he got?" (Emphasis in original).

Whether or not true, the tale is more about Stalin's character than it is meant to be instructive in the ways of realpolitik. At the time of Stalin's quip, Pius XI was Pope, and he more forcefully and loudly condemned the rise of Nazism than did his successor Pius XII, whose papacy began in 1939. Had Pius XI lived longer, the Church might have played a more active role in combating Nazism despite having no army--although historical counterfactuals are necessarily purely speculative.

Donald Trump is a funhouse mirror version of a Rennaissance man: he is impressively ignorant about just about everything. Thus, it is doubtful he knows about Stalin's quip, but if he did, he would likely mistake its brutality for wisdom. After Trump's recent social media and in-person accusations against Pope Leo XIV, the Pope said he did not fear Trump. Apparently, neither does Trump fear the Pope. About that, we need not speculate, given Trump's behavior.

Perhaps after being told that sharing an AI-generated image of himself as a Christ-like figure healing the sick by the laying on of hands wasn't playing well with his base, Trump deleted that post, although, as always, he did not take responsibility. He claimed (repeatedly) that he thought the image depicted him "as a doctor." The picture, which shows Trump's hands radiating holy energy so obviously is not of a doctor that one almost wants to applaud the audacity of the lie, except it's also possible that Trump is so unfamiliar with religious imagery and so incurious about the practice of medicine that he sincerely believed the image depicted him as a doctor. I leave it to readers to make up their minds about whether it's worse for Trump (and the rest of us) if he was lying or telling the truth.

Meanwhile, despite deleting the image of himself as Doctor Jesus, Trump pointedly refused to apologize for his social media posts targeting Pope Leo XIV, who, he repeated, is "very weak on crime and other things."

I've been puzzling over the weak-on-crime accusation. Does Trump think the Pope's job is to fight crime? Such are the times in which we live that I actually looked into whether there was some movie Trump might have seen (he certainly wouldn't have read a book) in which a fictional character is Pope by day and crime-fighting superhero by night. I came up empty. I eventually concluded that "weak on crime" must be a reference to the fact that Leo has criticized brutal crackdowns on immigrants. That has nothing to do with crime, of course, but Trump sells his immigration policy as targeting violent criminals. Here too, it's not clear whether it would be worse if Trump were simply lying about that or actually believed it.

It is tempting to think that Trump's blasphemies will prove to be the breaking point for his MAGA base, but past experience breeds caution. One could build an army of scarecrows from the enormous pile of straw amassed out of each ostensible last straw of Trump's outrageous words and deeds. Yet even if Trump's self-inflicted stigmata end up causing few defections from his base of supporters, they are not costless for the United States or, ultimately for Trump's political fortunes. Trump's Stalin-esque dismissal of the Pope is, in microcosm, his approach to everything, eschewing soft power--indeed, denying the very existence of soft power--in favor of bullying.

There is a scene in chapter 8 of George R.R. Martin's A Clash of Kings that is also depicted in episode 3 of Season 2 of the HBO adaptation A Game of Thrones in which Varys poses a riddle for Tyrian:

In a room sit three great men: a king, a priest, and a rich man with his gold. Between them stands a sellsword, a little man of common birth and no great mind. Each of the great ones bids him slay the other two. ‘Do it,’ says the king, ‘for I am your rightful ruler.’ ‘Do it,’ says the priest, ‘for I command you in the names of the gods.’ ‘Do it,’ says the rich man, ‘and all this gold shall be yours.’ So tell me—who lives and who dies?

The riddle has no definitive answer, as Tyrian observes. It depends on what the sellsword values. The initial lesson of the riddle is thus that power does not derive from politics, religion, or wealth but from strength. It is then suggested that the king has the upper hand because even if, in the moment, he does not command the sellsword, he commands an army. But then Varys observes that this merely moves the locus of inquiry from the sellsword to the army. Why is the army loyal to the king rather than to a priest or a rich man? Ultimately, Varys concludes: "Power resides where men believe it resides. No more and no less."

Trump holds power despite having committed numerous high crimes and misdemeanors because Republicans in Congress fear that if they cross him, he will throw his weight behind a primary challenger. He wields power with no opposition from across Capitol Hill for the same reason. It is long past time that everyone gave up their belief in Trump's power.

-- Michael C. Dorf

How the Supreme Court has Helped Destroy Free and Fair Elections

2026-04-13T07:00:00.002-04:00

I highly recommend a new book of essays edited by Geoffrey Stone and Lee Bollinger called "Money, Politics, and the First Amendment." Numerous election law experts contributed to this volume canvassing the Supreme Court's election law decisions dealing with the negative effects of money on free and fair elections. Most of the essays are critical of the Court's decisions and how they have contributed to the sorry state of our democracy. The entire book is well-worth reading.

In this post, I want to highlight one of the essays written by Dean Erwin Chemerinsky and his son Alex called "Getting it Wrong: The Supreme Court and Campaign Finance." This essay is concise, persuasive, accessible, and with pinpoint precision demonstrates the severe harms caused by the Court's use of the First Amendment to limit legislative efforts to offset the distorting effects of the free flow of money on our election system. The authors make clear that they are not arguing that First Amendment concerns are wholly irrelevant to the complex issue of money in politics--just that the Court has improperly and unnecessarily used free speech values to enable the wealthy to take control of and distort our elections.

The authors point to five serious mistakes that the Court has made in its election law decisions. These errors are summarized below but please do not mistake this post for a full discussion of these problems. The entire essay as well as the whole book are well worth your time.

1) Money is not Pure Speech Under the First Amendment

In a series of decisions starting with the landmark case Buckley v. Valeo, the Supreme Court has held that money is speech, and the justices used strict scrutiny to strike down reasonable restrictions on campaign spending. But, of course, money is not speech even if money often facilitates speech. When I spend money to pay for air conditioning or even theater tickets, I am not engaging in speech. When I spend money to pay other people to speak, that is a mixture of conduct and speech that, according to the Chemerinskys, should be reviewed under the Court's traditional intermediate scrutiny test, and that difference could make all the difference in how courts view the issue of legislative restrictions on campaign spending. The essay argues the following:

Spending is a way of expressing support for a candidate, but it is not itself speech.... Conduct which merely facilitates speech should not be treated as if it were itself speech. Education also facilitates speech, yet the Court has rejected the claim that there is a fundamental right to education.... The consequence of [treating spending money as pure speech] is to make it far more difficult for the government to impose restrictions on campaign spending because of the need for the government to meet strict scrutiny. It is the foundation for the law of campaign finance that has developed over the last half-century.

Money is related to speech and at times intermingled with speech, but it is not speech. The Court's false equivalence has done enormous damage to the goal of free and fair elections.

2) Distinguishing Campaign Contributions and Expenditures

The Court in Buckley drew a sharp distinction between direct contributions to candidates which can be regulated and expenditures in favor of candidates or issues which effectively cannot be. The Court's rationale was twofold. First, expenditure limits lessen the quantity and diversity of speech directly whereas contribution caps do not meaningfully restrain political expression. Second, the Court said that contributions pose far greater risks of corruption than expenditure limits.

As the Chemerinskys point out, however, the "distinction between contributions and expenditures makes little sense." I cannot say it better or more succinctly than they do:

Large expenditures risk corruption or the appearance of corruption in the same way as large contributions. If a candidate knows that someone has spent a significant amount of money to get him elected, there will be exactly the same effect as when the money comes through contributions. At the end of the day, the money all goes to roughly the same place; we doubt it matters much to candidates whether they buy their own ads or whether someone else does it for them. Elected officials can be influenced by who spends money on their behalf just as they can be influenced by who directly contributes money to them. The perception of corruption might be generated by large expenditures for a candidate just as it can be caused by large contributions.

Both campaign expenditures and contributions have expressive elements and both entail substantial risks of corruption. The Court's sharp distinction between the two is irrational and has led to much chaos and confusion in post-Buckley cases.

3) Corporations are not People

It is a bit crazy that this needs to be said but in both real life and for constitutional purposes corporations are not people. Under what circumstances corporations should be accorded the same constitutional rights as individuals should be a nuanced and fact-specific question. Exxon has a right under the Fourth Amendment to be free from unreasonable searches and seizures, and the New York Times has full free speech and free press rights to publish op-eds and other opinion pieces. But neither, of course, has the right to vote or many other rights we accord, you know, real people.

Corporations have the ability to pool together large amounts of money and then spend it in support of candidates and causes that don't necessarily reflect the views of their shareholders or employees. Their essential nature means corporations have vast resources to influence local, state, and national elections (as do labor unions). Treating corporate and union spending the same way as individual spending, as the Chemerinskys point out, is a policy choice not compelled by anything in the Constitution and which "is politically advantageous for those with money."

The Court's essential assumption that in the context of campaign finance restrictions corporations have the same rights as people is dangerous and wrong.

4) Leveling the Playing Field Should be Considered a Strong Governmental Purpose

The Court has said that the goal of ensuring that some voices do not drown out all others when legislatures regulate campaign spending is not even a legitimate governmental interest, much less a strong one. There is no reasonable constitutional justification for this value judgment. The Chemerinskys quote Justice Stevens's strong dissent in Citizens United to support their view:

The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

The Court's campaign finance cases since Citizens United have unleashed a torrent of spending by the wealthy that reasonable lawmakers could see as a serious threat to our system of representative government. Yet, the Supreme Court has prohibited all efforts to address this problem, often leading to the drowning out of the voices of people who do not have large accumulations of wealth. Nothing in the text, structure or history of the Constitution supports this aggressive judicial rejection of the strong governmental interests in free and fair elections for the wealthy and the poor alike.

5) The Court Should not Reject Public Financing Reforms that Lead to More Speech

In a major campaign finance case, Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, the conservative justices struck down an Arizona initiative to encourage candidates to accept public money for their campaigns. If they did, they had to agree to a set of conditions regulating how much money they spent themselves and accepted from others. No candidate had to accept the money or the conditions, but if their opponent did, then that opponent could receive, up to a cap, more public money to help her compete with her wealthier opponent.

The Court struck down the law on the basis that it penalized candidates who spent their own money on their own campaigns. But, as Justice Kagan explained in dissent, and the Chemerinskys agree, the Act did not limit speech at all. Instead, it subsidized the speech of less wealthy candidates thereby actually increasing and subsidizing speech.

At the end of their essay, the Chemerinskys argue that the overriding value judgment behind many of the Court's cases is the desire to protect the ability of the wealthy, including corporations, to influence local, state, and federal elections. This ideological position, however, is a policy choice not dictated by the Constitution. It is also one that benefits the Republican Party, which is quite obviously not a coincidence.

There is much more in this essay and in the book worth reading. But the five major points discussed above go a long way in explaining how far away this country has moved from free and fair elections for all.

by Eric Segall

Some Unexpectedly Broad Policy Lessons from the Nitty-Gritty Details of Expatriation

2026-04-10T12:49:00.001-04:00

Would anyone who moved out of the United States before the onset of the current dystopia be so crazy as to move back? In "Emerald Farewell," published here on Dorf on Law two months ago, I revealed that at least one such crazy person exists. It is I. In that column, I mostly limited myself to offering a broad assessment of Dublin, which was my final foreign stop before returning to the US at the end of 2025. I concluded with this somewhat snarky comment about Ireland: "It's a great place to visit. Full stop."

In that column, I also teased a future Verdict column:

In an upcoming column on Verdict (from which I have been on leave), I will explain in some detail the pluses and minuses of expatriation in all of their gory, practical detail. That column will also include my attempt to respond to those who might be saying, "Wait, you were actually out, and you chose to return now?"

That new column, published this morning, is "American Repatriation? Why Would Anyone Move Back, Especially Now?" Verdict's excellent editor wrote this blurb describing the column:

Law professor and economist Neil H. Buchanan recounts his three-year experience emigrating through the Netherlands, Canada, and Ireland before returning to the United States. Professor Buchanan suggests that while the impulse to leave the US is understandable, expatriation is far more logistically grueling, expensive, and isolating than most people anticipate—and explains that these practical realities, rather than any resolution of the political concerns that drove him abroad, were central to his decision to return.

As it happens, I disagree with that summary. Even so, I am not asking the editor to change it, because I can see that it is a fair way to read the piece. Moreover, the distinction between his description and my intention is illuminating.

He is certainly right that the political realities at home offered no enticement to go back, but the practical realities were absolutely not "central to [my] decision to return." Those realities were daily irritants that I am happy no longer to be enduring, but they did not in any way drive my decision. And that difference does matter, because I intended my message in that column to be: "For anyone who has thought about expatriating, here are some unexpected cons to take into account when you think about the pros; and for anyone who is thinking about coming back, I can testify that there is a surprising upside to being where things feel familiar and easy." That, however, is far from a statement those those cons should be dispositive.

I have not, in fact, described why I decided to leave Dublin, and I have no plans to do so. I will say only that my reasons were professional and personal, with no need to state the professional reasons because I see no point in disparaging publicly the people involved, and the personal reasons are simply that: personal.

Frequent readers of my columns are certainly aware that I regularly use personal anecdotes and some self-revelatory comments to spice up and sometimes motivate my columns. While that is true, I always include such tidbits in service of some larger argument or policy point. Readers who continue to the end of this column will find that that is the case again here.

As noted above, one of the larger points in today's Verdict column was to inform people who might be thinking about expatriating about the unforeseeable (but surely surmountable) challenges that they will face. In turn, people who have no intention of moving can learn what their decision has spared them.

Again, however, I was more than willing to deal with all of the expense and nonsense involved in leaving and staying away, especially because (as I noted in the column) a large number of the annoyances were once-and-that's-that matters. Navigating the immigration laws to be able to reside in a country is the most obvious one-time matter, although it is important to point out that the "once" can and does go on for months or years, and it also costs quite a bit of money before getting to "that's that."

Writing today's Verdict column presented the challenge of just how far into the weeds I should go in describing the practical challenges of moving abroad. I focused on some particularly harrowing -- albeit funny, but only in retrospect -- events of my dealings with immigration lawyers and tax advisors. (Because I was focusing on the cautionary tales, I did not happen to mention one big surprise, which was that my realtors in all three places were fantastic. Having had very mixed experiences in the US, that was a relief.) Those immigration and financial matters were unquestionably essential issues, but there were plenty of other things that might seem like nitpicky details that should be left on the cutting room floor.

Instead, the Verdict editor asked me to add some of those small details, which I obliged with a list that included things like financial transaction fees, figuring out where to buy basic pharmaceuticals (and learning the local brands), and even spending a full day trying to find where to buy moving boxes. (I am not kidding about that last one.)

Notably, we are now living in a world where many of the longstanding annoyances and expenses of being outside of the US are no longer salient, especially with the rise of non-cash transactions. Many people barely ever use cash in the US, and it is even easier to be cash-free in other countries. Things like travelers checks and even ATM compatibility issues and fees are blessedly no longer part of our lives.

Even so, there are still many, many seemingly small things that can become big things. Here, I want to add to the list in my Verdict column, again to make a larger point that ultimately has some serious policy implications. For now, however, prepare for both nittiness and grittiness.

Moving abroad means changing phone numbers, which honestly surprised me, because I thought that I could keep my US cellphone number if I was willing to continue to pay foreign roaming fees. Not true, so after a couple of months in Toronto, I had no choice but to change carriers and get a Canadian number. Leaving aside just how ridiculously bad the customer service is among the major carriers there (incompetence, of course, plus relentless up-selling that is disguised as politeness), it would seem that changing to a new phone line would be a minor matter that might involve only as much time as needed to choose which duopolist to overpay and then to set up service.

If only. Even though Canada uses the same country code as the US (+1) and the same area code and phone number system, some -- but not all -- businesses' systems are incapable of processing transactions based on Canadian phone numbers. Even fewer are able to deal with phone numbers with different country codes (+353 for Ireland, +31 for the Netherlands), different lengths of area codes, or 8-digit versus 7-digit numbers. As a consequence, US-based transactions -- and believe me when I say that every US expat it going to continue to do a LOT of US-based transactions online -- that require entering a phone number will simply not be possible.

This carries over to physical addresses as well. My credit union in the US, for example, has an online change-of-address form, but the dreaded red asterisk (*, indicating a required item) sits next to the fields for not only City but State and Zip Code. A few systems include Canadian provinces on the list of states, and fewer still recognize foreign postal codes (which typically include letters and more than 5 characters). When that becomes a problem, the only alternative is to call customer service. Unfortunately, customer service calls often involve long hold times, and my experience with foreign cellphone carriers put me in many situations in which it turned out that my international roaming plans did not include certain international calls. One month's bill in Ireland included an extra 90 euros ($105) for two calls to US banks, totaling 30 minutes.

Are your eyes glazing over yet? Try living with that level of unknowability for nearly every transaction that one might need to make. Another unexpected, seemingly trivial example: I wanted to continue to make contributions to my grandkids' college savings plans, but the online system for the company that processes such payments requires that donors outside the US send paper checks to an address in Virginia. So one of the least reliable services in the world -- international postal delivery -- now has to be involved, and at a premium cost.

Even the largest institutions are sometimes incapable of dealing with the nit and the grit of non-US transactions. It otherwise made sense for me to continue to use the credit card that I have been using for decades, which is provided by one of the largest US banks. Although most transactions went through, the bank's security protocols sometimes required that I enter one of those six-digit codes that is sent by text. But because that bank's phone system could not recognize non-US numbers, those transactions were impossible. Over the space of a year, I spent at least five hours on the phone -- mostly on hold -- with that bank's customer service office (at least those calls were free), and despite being told again and again that the problem was solved, it never was. Again, this is a global banking behemoth.

Finally, speaking of those two-factor authorization codes, guess what happens when a person's phone number has changed? In some cases, the system allows alternative authorization (such as email), but many systems embody the perfect Catch 22 in allowing a person to change their contact phone number only by receiving a code at their old contact phone number. And this was not only on systems where the interaction was minor (like buying a product online). In fact, the login systems for US government services make it impossible to change one's number from abroad after the existing US-based number has been discontinued. This meant, among other things, that I could not navigate Medicare issues online, which was especially bad when the Trump DOGE teams devastated customer service for Social Security and Medicare. I only was able to do what I needed to do by contacting the US embassy in Dublin, which for some reason was still set up to provide real customer service.

There are countless additional examples, but even I have limited capacity to vent about such things. In any event, this deluge of details is the tip of the iceberg for Americans living abroad. Some are easy to handle, and some go away permanently. Some (even the most trivial), however, can be nearly impossible to fix, and there is always a sense of vague uncertainty looming over daily life, with some new and completely impossible to anticipate mini-hell possibly taking up hours or days of one's time.

Again, however, that was not "central to [my] decision to return." If the professional or the personal sides of life had gone even half as well as I had reason to expect, I would still be over there, and my daily life would simply involve accepting that being outside of the States takes a huge, unanticipated toll in extra expense, lost time, and ongoing frustrations of all sorts.

So one larger lesson here is that international migration is extremely difficult, even for people with adequate funds and training in things like law and finance. No one should imagine -- for themselves moving away or for anyone moving to the US -- that anything about moving to a new country is simple or easy. I shudder to imagine what it is like for people who come to this country and try to comply with everything that they will face, especially people who are here because of threats to their lives back home and who have little or no money.

Another, even larger implication of all of these nasty little details is that hassles are bad for people's lives and for the economy as a whole. In a column last September, I described how the process of filing taxes -- not the taxes themselves -- imposed costs that could make certain economic activities not worth the candle (and which explains a large part of my absence from Verdict over the past year):

Although Irish tax rates are a bit higher than those in the US, they are nowhere near the level that might make even a pro-tax liberal say, "Eh, not worth it." But that level does exist, as the ridiculous persistence of the so-called Laffer Curve makes clear, with its trivially true observation that a government that charges 100 percent tax rates would surely collect no revenue. Not true here [in Ireland]. What is true, however, is that if I were simply to trigger any tax obligation, I would simultaneously trigger a process that would incur filing costs. Those costs would include not only fees paid to tax professionals but time spent finding and providing the documentation that would be required to file my tax return properly. The accountancy fees are not proportional to the amount of income involved, and I figured out that paying an accountant to handle even relatively trivial earnings would create the functional equivalent of a 100 percent tax rate. (As an odd but reasonably close analogy, think of it as the equivalent of paying even a small cover charge to enter a pub, but you’re only planning to order one soft drink.) ...

[T]he non-tax burdens caused me to say, "I can wait." This combination of facts and circumstances "destroyed wealth" in the sense that Justia will not provide a product that it would otherwise have been willing to provide, and I chose not to provide it even though it means ending up somewhat less wealthy.

The breakup of the international order is causing many serious issues, often matters of life and death. Without in any way trying to diminish those tragedies, it is worth emphasizing that anything that makes international coordination more difficult has untold knock-on effects that people might not even realize are happening, all because of some stupid leaders' beliefs that their countries can go it alone. Those politicians are right in the literal sense embodied by North Korea's isolation, but they are quite wrong that it is easy to be discoordinated with the rest of the world.

The US is seeing only the beginnings of those costs now. The UK is still reeling from its insane decision to leave the EU ten years ago. Given my Scottish last name, I have always felt an emotional pull toward favoring the break up of the United Kingdom, to allow my ancestral land finally to be free. If an independent Scotland were allowed to rejoin the EU as a new country, that would be less costly (in the broadest sense of that word) than it would otherwise be, but of course the leaders of Europe have every reason to discourage national breakups and piecemeal new memberships. And the people who are pushing for Alberta's independence from Canada must be smoking something.

Do the logistics of two-factor authorization, cellphone plans, or online address protocols have implications for people's lives? Absolutely. The people who try to move to other countries (and, in many cases, succeed) see those costs up front, while most other people are unaware of how many things are going right behind the scenes in their socially, financially, technically, and politically integrated worlds.

Special note to readers: Thanks very much for sticking around to the end of this column, which was admittedly a bit of a ride.

- Neil H. Buchanan

AI Legal Research and Thoreau's Warning

2026-04-09T07:00:00.014-04:00

During my Federal Courts class earlier this week, a student asked me a question about a point I had made that appeared to contradict a sentence in the casebook I use for the course. I said that I was pretty confident I was right and the casebook was wrong but that I would do some legal research and get back to him after class. The upshot of that research is that I was indeed right but that the relevant sentence in the casebook was ambiguous, not necessarily wrong. It appeared to describe the law in a way that contradicted what I said but read in context it could also be understood to be making a statement about a reform proposal of various scholars. (I subsequently confirmed with one of the casebook editors that the language was indeed intended as the latter; he graciously agreed that the statement was ambiguous.)

How did I determine that I was right? After class, I took to my computer to look into the issue. As I sometimes do these days, I decided to begin my legal research by posing the issue via a simplified hypothetical question to a chatbot, Claude. After a few seconds, it confidently spit out an answer. According to Claude, my view was mistaken. Claude cited five cases and built an argument based on them. I recognized two of the cases and was pretty sure they did not stand for the propositions Claude said they stood for. I read them and the other cases and verified that Claude was completely wrong. I said so. Here's what Claude wrote in response:

"You are absolutely right to push back on that, and I apologize for the sloppiness. You correctly identified the flaw in each of those citations . . . . Honest Answer[:] I am not confident I can identify a Supreme Court case that squarely holds" what the prior answer confidently asserted.

But even that was misleading, because there is authority that pretty squarely holds the opposite of what Claude asserted, i.e., that supports my view that I had communicated to the students. I found that contrary authority by posing the same question to Westlaw AI Deep Research, Gemini, and chatGPT, each of which told me I was right and led me to the correct authority. Of course, I only knew that this was the correct authority because I spent some more time reading the various cases and checking to see whether there was any relevant subsequent negative history (the Westlaw equivalent of Shepardizing).

I've described the interaction in general terms above because the underlying legal issues involve a somewhat subtle point involving the Eleventh Amendment and state sovereign immunity, which is itself a fairly technical subject. For interested readers, I've reproduced the exchange in this Google Doc. The key point here is simply that Claude got it wrong. I want to use that fact as the springboard for a broader discussion of the use of AI in legal research.

Most of the high-profile instances of lawyers screwing up via AI involve hallucination. Damien Charlotin, who teaches legal data analysis in France, maintains a useful global database of reported cases in which filings contained cases that were completely made up, misrepresented, or quoted for language that did not actually appear in them. The database currently has over 850 entries for the United States--and those are only reported cases. Undoubtedly, there have been many others. Most but hardly all of the offenders in the U.S. cases in Charlotin's database are pro se litigants. An alarming number of lawyers seem to be submitting legal documents written by AI without bothering to check whether the material the AI cites is represented accurately, quoted accurately, or even exists.

That is obviously extremely problematic. Perhaps there will come a day when AI is good enough to be trusted to replace lawyers, but it is nowhere near there now. I mentioned above that despite Claude's fumble of my sovereign immunity question, the other chatbots got it right, but even Westlaw--which is the least likely to hallucinate because it operates in a closed universe of legal materials--somewhat overstated the import of several key cases and also devoted about half of its answer to irrelevant material (discussing abrogation, not just waiver, for interested experts).

To be clear, I am not saying that AI can't be used responsibly in legal practice. What I am saying is that, unless and until it becomes more reliable, it might not be worth the investment. To explain why, I want to lean on a point that Henry David Thoreau made in Walden: that when one takes account of all the labor that ostensibly labor-saving devices require, they may end up requiring more labor, not less. Writing in the mid-19th century, of course Thoreau was not discussing AI, but the point generalizes. Here's his argument about the then-relatively-new technology of the passenger railroad:

I have learned that the swiftest traveller is he that goes afoot. I say to my friend, Suppose we try who will get there first. The distance is thirty miles; the fare ninety cents. That is almost a day’s wages. I remember when wages were sixty cents a day for laborers on this very road. Well, I start now on foot, and get there before night; I have travelled at that rate by the week together. You will in the mean while have earned your fare, and arrive there some time to-morrow, or possibly this evening, if you are lucky enough to get a job in season. Instead of going to Fitchburg, you will be working here the greater part of the day. And so, if the railroad reached round the world, I think that I should keep ahead of you; and as for seeing the country and getting experience of that kind, I should have to cut your acquaintance altogether.

Whether Thoreau was right about the railroad even in his day is debatable. Walking thirty miles per day is no mean feat. And while it's true that one can see the country and have interesting experiences while walking, one might meet interesting people or read a good book or take a much-needed nap while riding the train. But whatever Thoreau thought about this particular example, surely there are instances in which his point holds--especially with respect to marginal technological improvements.

I ask readers who work in large organizations (like a corporation, law firm, government agency, or university) to reflect on the last time the organization "upgraded" its accounting software or switched from one platform to another. Think of all the additional time spent learning the new system, waiting to have questions answered, and re-doing whatever submission you made thinking you had finally gotten it right only to have the system reject it for missing something you don't understand. Those hours count on the cost side, as does the time spent by IT professionals learning the system and the money spent by the organization to license the new system. If time is money, Thoreau's point is that equally, money is time. So a full accounting of the time saved could end up being negative. I wouldn't say that such changes are never justified. I would say that there's never a guarantee they will be justified.

Now suppose you've got a brief due and want to turn to generative AI to cut down on the time it takes to write it. It will certainly take less time for the AI to do the relevant legal research and write a first draft of the brief than it would take you. But now let's add up the costs in dollars and time on the other side.

Start with the cost of using the AI. You might use a free general purpose chatbot, but it will be more error-prone than one for which you pay, so you or your firm will probably want to pay for a subscription. Even the free AI chatbots aren't really free. There's the negative externality of their power usage, although that's admittedly not a cost that the individual lawyer will bear, except as a member of the general public. Likewise for the harm AI causes the authors and artists whose work it exploits without compensation.

But even if we put the monetary cost and negative externalities aside, I wonder whether the time one needs to spend checking a chatbot's work and editing its prose doesn't eat up much or even all of the time-savings that turning to it in the first place supposedly afforded. It's true that a competent lawyer would cite-check a brief written without AI assistance too, but that's a shorter process. If you've written a brief, you might have inadvertently gotten some pin cites wrong, but you won't often have gotten the holdings of cases wrong, much less made up cases.

The point isn't that hallucinated cases or quotations are difficult to spot. If you actually look up every citation, hallucinations are incredibly easy to spot. The point is rather that because you can't trust the chatbot to have cited real authority for the actual points that authority supports, you can't trust the argument the chatbot constructs. And that means that you can't trust the brief. So have you really saved any time? Or have you wasted time on a false start?

Walden is sometimes read as prescribing asceticism. It is true that some passages lend themselves to that understanding, but read sympathetically, Thoreau is better understood as advocating deliberation about what constitutes genuine progress and improvement. His promotion of simplicity, frugality, and connection to nature as antidotes to unthinking consumerism is, if anything, more timely now than in his day. So too is his skepticism about new technologies, which, he argued, should be adopted only after an honest and thorough assessment of their costs and benefits.

One need not be an AI doomer to worry that AI's adoption in any field could be more costly than beneficial. That worry strikes me as warranted for at least some of the uses to which it is being put by lawyers. There is no excuse for a lawyer ending up on Charlotin's database, but even much responsible AI use may not be worth the effort--at least not yet.

--Michael C. Dorf

This is the Worst Possible Time to Strengthen Executive Power

2026-04-08T07:00:00.006-04:00

Tonight from 10-11 pm Eastern time, Professor Vik Amar and I will discuss the unitary executive theory (UET) with a special focus on the argued-but-still-pending SCOTUS case of Trump v. Slaughter. The late start time is because the live audience will be in Davis, California at the Schwartz/Levi Inn of Court. (For those unfamiliar with the concept, in the United States an Inn of Court is something in between a bar association and a social club for judges, lawyers, and law students. American Inns of Court are modeled loosely on their older UK predecessors, which also have regulatory functions like those of a state bar in the U.S.) I'll be Zooming in but the event is otherwise only in-person, so there's no remote access. Accordingly, for the benefit of readers of this blog and also to help me organize my remarks, here I'll set out the core of my view.

I'll begin with the observation that although tonight's discussion was planned months ago, it couldn't be more timely. The current occupant of the White House is hellbent on violating federal statutes and the Constitution. Just yesterday, with less than two hours to go before his self-imposed deadline for carrying out his threat to commit war crimes, President Trump announced a two-week ceasefire in the war he started in violation of international law and the Constitution. Craven party loyalty prevents Congress from impeaching and removing him for his multiple high crimes and misdemeanors. Could there possibly be a worse time to contend that the U.S. president should have more power and fewer statutory constraints?

Perhaps during the Q&A, one or more audience members will offer a robust defense of the extreme version of the UET championed by the White House and apparently resonating with the conservative super-majority of the Roberts Court. Professor Amar and I will likely disagree with one another on some points because he is somewhat more sympathetic to the UET than I am, but he is hardly a UET fanatic. For example, long ago (and also more recently), he highlighted the "retrieval" problem: accretions of executive power tend to be a one-way ratchet because presidents can veto bills reducing their powers. Thus, I expect our disagreement to be narrow compared with our areas of agreement.

So, what is my view? Simply that the Constitution is silent on the key questions implicating UET: whether and to what extent Congress may limit the ability of a president to remove an officer? To my mind, UET proponents are unpersuasive in their textual arguments. Yes, Article II vests "the executive power" in the president, but it does not define what that power is nor does it say that for the president to exercise it everyone in the executive branch must serve at his pleasure.

The UET argument that "the Constitution vests the entirety of the executive power in the President," as Chief Justice Roberts asserted in Trump v. United States, proves too much. After all, even officers who serve at the pleasure of the president can exercise executive power without direct supervision by the president--often in ways that cannot be readily undone--until they are fired. If taken seriously, the Trump dictum would mean that the executive branch could consist of only the president and perhaps a handful of valets, in direct contradiction of the Constitution's reference to "heads of departments" and "officers." The Vesting Clause cannot bear the weight that the UET would place on it.

What about the Take Care Clause? Numerous scholars have argued, persuasively in my view, that it imposes a duty on the president but does not grant any power the president would otherwise lack (such as at-will removal). Moreover, it would be especially rich for the Court to rely on the Take Care Clause to enhance presidential removal authority at a time when the president is taking care to ensure that so many of the laws are not faithfully executed.

Which is not to say that the Court won't do exactly that. Based on the oral argument in Slaughter, I fully expect the Court to invalidate the removal restrictions on Federal Trade Commissioners either by frankly overruling Humphrey's Exeuctor v. United States or essentially confining it to its facts. (One might think it impossible to confine Humphrey's to its facts without ruling against Trump in Slaughter, given that both cases involve the FTC. However, the Court might say that today's FTC exercises executive powers that it lacked in 1935.)

I should be clear that while I do not support the Court's effort to eliminate nearly all independent agencies, I also am not a strong proponent of the "quasi" categories in Humphrey's. As I explain in a recently published symposium essay, "in relying on the quasi categories, Humphrey's planted the seeds for its own destruction. It implied that if the [FTC's] task were executive, then the removal restrictions would be unconstitutional. Put differently, Humphrey's itself accepted the UET’s view of the removal power."

What is to be done? One option would be to treat removal restrictions as a matter purely for Congressional discretion, so long as Congress itself doesn't retain a role in removal (because the Constitution provides only impeachment as a means of congressional participation in removal). Such an approach would hardly be disastrous. As Justice Kagan pointed out during the Slaughter oral argument, presidents have signed a great many laws that contain removal restrictions. They presumably did so because they concluded that those restrictions were not unduly intrusive on the powers of the presidency. Meanwhile, it is nearly impossible to imagine that two-thirds of each house of Congress would ever vote to place removal restrictions on federal officials over the veto of a president, so we need not worry about hard cases, such as removal restrictions on the Secretary of Defense or the Secretary of State. Accordingly, and in light of the Constitution's silence on the point, leaving the issue to Congress would make considerable sense.

I recognize, however, that the current Court will not go down that path, which would be even more permissive of removal than Humphrey's itself, and the Court seems intent on junking Humphrey's (in spirit even if not formally) in favor of a rule that further restricts congressional power to impose removal restrictions. In place of Humphrey's, I expect the Roberts Court to give us a rule barring removal restrictions except for the Federal Reserve, based on a bogus historical distinction. As I explain in the symposium essay, if the Court insists on restricting the removal power, a sounder course would be to replace Humphrey's Executor with a functional inquiry into the question whether a risk of executive branch self-dealing warrants insulation from at-will presidential removal.

-- Michael C. Dorf

Birthright Citizenship, Tariffs, Blah Blah Blah: Would One More Ridiculous Supreme Court Error Matter?

2026-04-07T16:48:00.003-04:00

The Trump Administration should lose the birthright citizenship case that the Supreme Court heard last Wednesday. Full stop. Professor Dorf's analysis last Thursday of the oral argument in that case made it very clear why the government should lose, and he did so even while giving the other side every benefit of every doubt. Moreover, he is hardly alone in that conclusion. Again, this is not a close call.

This is very much like the Court's recent decision in the tariff case, on which both Professor Dorf and I weighed in a bit more than a month ago. The Trump side's argument was so ridiculous that the 6-3 decision against him was merely evidence that there are at least three Republican appointees on the Supreme Court who are willing to toss logic, law, and evidence aside to enable their political leader's worst instincts.

But what are the non-legalistic stakes in those cases? That is, what if two of the six votes had switched in the tariffs case, and what if somehow five votes materialize to rewrite the Fourteenth Amendment in the birthright citizenship case? When I refer non-legalistic stakes, I mean to ask about the impact on real people as a result of such terrible decisions, which is different from the impact on the Court's already quite tattered reputation. When I asked in the title of this column whether one more ridiculous error by the Court in the birthright citizenship case would matter, I am not saying that the Court's reputation could not go lower. It could, and that would be bad.

Setting aside the cumulative impact of this Court's self-immolation, however, I am interested in the damage -- both the type of damage and the quantitative weight of the damage -- that mistaken court decisions would cause. After discussing why neither the tariff case nor the birthright citizenship case would cause fundamental harm if wrongly decided, I will offer examples of the Court's decisions that truly are terrible in every sense.

So, tariffs. Trump was illegally using the relevant statute (IEEPA, or the International Emergency Economic Powers Act) to extort and punish countries, completely at his whim. I have long argued that tariffs can be used strategically and carefully for good policy reasons, which means that I never bought into the "tariffs are bad because ... free trade!" nonsense from orthodox economists. But of course Trump is incapable of doing anything strategically or carefully, making it an easy call to oppose his abuse of IEEPA.

We need to ask, however, what would happen if Congress had -- inadvertently or otherwise -- written IEEPA in a way that delegated power to Presidents to impose tariffs selectively and without limit. That would be bad, but in that world the Supreme Court would never have heard a challenge to Trump's tariff insanity. It would be bad policy, but it would be bad policy that was duly legislated and thus available for a president's (ab)use. We have a lot of bad policies that Congress has created: at-will employment, wholly inadequate environmental regulations, a disastrous health-care financing system, and on and on. This would join that list.

The point is that we can find ourselves with terrible policy outcomes that result from legally unproblematic processes. If we had a legal regime in which Trump could have continued to do what he was doing (until the Court stopped him in February), that would have created more economic uncertainty and thus reduced business activity, higher unemployment, and so on. That, however, is in the same category as wishing that we had a Congress that would, say, pass a living wage law, or one that would fund better public transportation.

I am therefore not necessarily saying that the damage would be quantitatively insignificant. That is beyond the scope of this column. I am saying that imagining a world with Trump's version of IEEPA and comparing it to one with the actual version of IEEPA is a matter of assessing two policy regimes that any given Congress might have chosen.

This is even more true when we turn our attention to birthright citizenship. I happen to think that birthright citizenship is a very good policy regime, for reasons that I will explicate momentarily. Even so, imagine that the framers of the Reconstruction Amendments had written the citizenship clause in a narrower way that clearly and exclusively dealt with the newly freed people who had been cruelly and unjustly enslaved? In other words, what if the US had adopted a citizenship regime that more closely resembled those in the European countries from which the American power elite (or their parents or grandparents) had moved?

As I stipulated above, I would view that as a bad policy choice. And to be clear, I do not mean to say that "mere" policy choices are somehow unimportant. I agree with Moira Donegan, a columnist for The Guardian, who wrote last week that "[e]nding birthright citizenship would change the meaning of America." In particular, she argued movingly that abandoning birthright citizenship

would change what it means to be an American, and in so doing it would change what America means. Ending birthright citizenship would effectively end the United States’ experiment in striving to be a creedal nation that delivers democracy to a vast and diverse population of equals. It would make us instead something more vulgar, more common, and less special: a nation defined by ethnicity and heredity, those banal accidents that carry no righteous vision or moral aspiration, but only meaningless inheritance; a nation defined not by the hopes for its people’s future but by the unchangeable facts of their past.

That is a very big deal. On the other hand, the US has done many things that have made the country "more vulgar, more common, and less special." That in no way means that we should simply make additional bad decisions merely because we have already blown it in so many other ways, but the point is that the country would go on, in a form that I would regret to see but that would simply be different from what it could be.

Similarly, Professor Jacob Hamburger's guest column here on Dorf on Law early last year pointed out how much pure waste would be caused by a non-birthright citizenship regime:

[I]mplementing Trump’s order will impose an unnecessary amount of additional paperwork—ironic for an administration that claims to believe in “governmental efficiency.” A further irony is that naturalized citizens and permanent residents, who receive documentation through the immigration process, would likely have a much easier time proving their status than many native-born U.S. citizens who may only have a birth certificate.

That would also be bad. If the Court gets this case wrong, then, it will not only allow Trump to "change the meaning of America" for the worse but to do so by creating wholly unnecessary chaos in people's lives. We should hope that the betting odds are correct that the good guys will win that case.

But if I am not saying that these bad outcomes are quantitatively somehow not too bad, what am I saying? The idea here is that some outcomes are transformative of the country in a way that goes beyond allowing or disallowing certain policy choices. The truly bad outcomes are plenty bad in a policy sense, but they are super-bad in a way that makes the country less of a democracy and less able to resist authoritarian takeover.

When the Supreme Court cut the heart out of the Voting Rights Act of 1965 with 2013's Shelby County v. Holder, that was not only an arrogant assertion of power and a judicial negation of a nearly unanimous act of Congress. It set in motion the devolution of the country's political system, making it possible once again for Republican-run states to bring back Jim Crow-style laws that have made the country less of a democracy. In Rucho v. Common Cause, the Court's conservatives blithely said that there was nothing they could do about gerrymandering, saying (as I have put it many times) that the courts should defer to the political branches even when the issue is fundamentally whether the political branches deserve the deference that presumptively comes with being the representatives of the people.

An inexplicably unanimous Supreme Court in 2024 decided to write the Insurrection Clause out of the Fourteenth Amendment, and that court later in the year issued a non-unanimous opinion giving presidents immunity from some (perhaps all, although the Court's majority was coy about that question) criminal prosecutions, even after leaving office.

The latter decision was ridiculous as a matter of jurisprudence, but its vile real-world impact was entirely a matter of letting Trump buy time and thus escape prosecution before that year's election. The immunity question itself, however, was rather unimportant in the sense that it would have little or no impact on the world. In our nightmares, we worried that Trump might use that as an excuse literally to shoot someone on Fifth Avenue, but the bigger worry is that he will never leave office and thus might never even need to rely on the immunity decision (given that everyone seems to accept that sitting presidents cannot be prosecuted).

The former decision (regarding the insurrection clause), on the other hand, was absolutely devastating to the Constitution, the country, and the world. The Court could and should have said that, although it is possible to imagine difficult line-drawing questions about what constitutes insurrection, there is no reason to require Congress to have passed a law defining it in advance of January 6, 2021. As a direct result of that complete abdication of responsibility by nine presumably sentient adults, we are at this moment waiting to find out whether Trump will indeed decide that "[a] whole civilization will die tonight, never to be brought back again."

So would it be bad if the Court's conservatives (sometimes joined by its liberals) continue to make indefensible decisions? Of course it would. Every bad decision should be condemned. But some things are existential, and some are not. Birthright citizenship is a good idea, but the country and the world could survive without it. That is not true of the decisions that brought us to the brink of disaster.

- Neil H. Buchanan

Is the Rooney Rule Illegal?

2026-04-06T07:00:00.034-04:00

Last week Florida Attorney General James Uthmeier sent a letter to the NFL claiming that the League’s Rooney Rule, aimed at increasing diversity in the top ranks of NFL teams, is “blatant race and sex discrimination.” Concurrently, Uthmeier posted a video to X contending that the Rooney Rule violates Florida law.

The Rooney Rule, named for the former owner of the Pittsburgh Steelers Dan Rooney, requires among other things that a team “interview at least two external minority candidates in person for open head coach and GM positions and at least two external minority candidates — in person or virtual — for a coordinator job.” “Minority” is defined to include ethnic minorities and women.

Uthmeier’s challenge is ostensibly to the NFL’s efforts to increase minority representation in its management ranks, but in reality it goes so much further. This kind of interview set-aside to promote diversity is common. For example, law firms have also implemented similar types of rules—e.g., Mansfield rules. Thus, if this domino were to fall, we may have further challenges to all sorts of efforts to promote diversity.

Florida’s antidiscrimination law, Title XLIV Section 760.10, largely replicates the language of the federal employment discrimination statute, Title VII of the Civil Rights Act of 1964. So, in the interest of generality, I’ll consider how Title VII may bear on the Rooney Rule. In relevant part, Title VII states:

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Now the Rooney Rule is about interviewing, and thus not directly about hiring, discharging, or about “compensation, terms, conditions, or privileges of employment.” Consequently, subsection (1) seems inapplicable.

However, subsection (2), which applies to “classifying [] employees or applicants . . . because of such individual’s race [or] sex,” is putatively relevant. Indeed, the Rooney Rule undoubtedly classifies applicants to coaching positions as “minorities” or not, which in turn is defined with respect to their race and sex. Importantly though, classification alone is not enough to constitute a violation of Title VII. In order for the classification to violate Title VII, it must “deprive or tend to deprive [an] individual of employment opportunities.”

On my review of the case law, I did not find any case that squarely considered whether these kinds of set-asides for interviews violate Title VII. Thinking about how the statute would apply and whether anyone is deprived of an employment opportunity will depend on how a team manages its hiring process in light of the Rooney Rule. To see this, consider some examples:

(1) Suppose a team has a “merit” ranking of 15 candidates for its open coaching position. To be clear, it’s dubious whether there is such a thing as a purely merit ranking, but we accept the assumption arguendo. Suppose further the third and sixth candidates are qualifying Rooney Rule candidates. The team understands the requirement of the Rooney Rule and thus decides to interview the top six candidates from its merit ranking.

Under this decision, it is unclear who might be deprived of anything. Consider the seventh candidate—who we’ll assume is not a Rooney Rule candidate. Why are they deprived? Even if the Rooney Rule was not in effect, there is no reason to believe the seventh candidate would be interviewed.

(2) Suppose a team has decided it wants to hire Junior Lombardi, and it decides that they’ll interview some additional people to satisfy the Rooney Rule and also satisfy other social obligations (like promises to friends to interview their friend). Here again, it does not seem anyone is deprived of anything. The Rooney Rule candidates may have been misled and had their time wasted, but there may also be some advantages to interviewing, like for example it puts one’s name out there for future searches.

(3) What if a team interviews all of the candidates it wishes to interview, of which one is a Rooney Rule candidate. The team then decides to add one more Rooney Rule candidate to satisfy its obligation. And we can assume the additional candidate is actually low on the merit ranking for the team. Even here, no individual is deprived of anything—because in the absence of the Rooney Rule, no other candidate would have been interviewed, even if they were jumped on the so-called “merit” queue, because they didn’t make the team’s initial list of preferred interview candidates.

(4) Now suppose a team interviews all the candidates it wants to and that includes two Rooney Rule candidates. Again, no one is deprived of anything and the Rooney Rule did not change any decision making of the team.

(5) Finally, consider a team that decides to limit its number of interviews to six candidates because of time limitations. On their so-called merits ranking, the first candidate is a Rooney Rule candidate, and the next qualifying Rooney Rule candidate is ranked eight. The team decides to interview the first five candidates on their merit ranking, and then decides to interview the eighth candidate to round out the set of six.

Here, the candidate ranked sixth on merit has been deprived of an interview opportunity because the Rooney Rule led the team to interview a candidate of lesser perceived merit to satisfy the Rule’s requirements. In the absence of the classification of the Rooney Rule, candidate #6 on the merit ranking would have been interviewed. Thus, in this kind of scenario, there is a potential Title VII violation.

Now there is one possible argument to consider, if a team interviews someone because of the Rooney Rule and then goes on to hire them. In this situation, another candidate may claim to have been deprived of the job due to the classification. That is, without the Rooney Rule, the hired candidate would not even have been interviewed and thus not hired. Therefore, the complaining candidate would argue, but for the Rooney Rule they may have gotten the job instead. Indeed, even if the complaining candidate cannot show that they definitively would have been hired, they may claim to have been deprived of a greater chance of getting the job.

My intuition is that these arguments fail, because after the candidates are interviewed, the team’s hiring decision based on those interviews is causally distinct and separate from the Rooney Rule’s classification. Put another way, a candidate does not have a legally cognizable interest that others should not be considered for a job, and so if a classification promotes another’s consideration, that does not deprive the candidate of anything. And I would contend that this is true even under the Supreme Court’s broader understanding of causation, post-Bostock.

However, the issue is complex and nuanced. In Connecticut v. Teal, Black plaintiffs showed that an initial step in the hiring process, a test administered by the employer, had a racially disparate impact. The defendant state employer argued that the plaintiffs could not complain about that initial step, because the subsequent steps of the screening process eliminated any racially disparate impact. The Court held that doesn’t matter—if any step in the hiring process has a racially disparate impact, that can be challenged. Now, I think Teal is distinguishable: the plaintiffs there were deprived of an employment opportunity at the initial step—they were kicked out by the racially discriminatory test. In our Rooney Rule scenarios, I have argued nobody suffers a deprivation, because the imagined complainant gets an interview—it’s just that they have to endure more competition from others getting interviews. But it would not take much to imagine a court—especially the Roberts Court—seeing Teal as prohibiting any classification based on a protected trait at any stage of hiring, seeing even more competition in a job as some kind of deprivation.

One further point, raised to me by Professor Dorf, is whether this is properly understood as an issue of the Rooney Rule’s legality under Title VII or whether this is about when someone would have standing to challenge the Rooney Rule. Based on the text of subsection (2), it seems that there is not a statutory violation in the event that no individual is “deprive[d]” of an employment opportunity. Put another way, the EEOC (or other state authority operating under the state analogue) would have standing to sue to enforce Title VII, but without showing that the classification does not deprive (or tend to deprive) some individual of something, there simply is no violation.

So, what can we learn from all this? First, there are some plausible ways to proceed in open searches for candidates that utilize the Rooney Rule and that likely do not run afoul of the plain textual meaning of Title VII. Second, there are some ways to structure a search in light of the Rooney Rule that would seemingly violate Title VII—principally, where a team fixes the number of interviews and demotes a candidate for a Rooney Rule candidate. This suggests then that the Rooney Rule can survive legal challenge with good guidance on how to structure open searches in light of the law.

-Guha Krishnamurthi

Onesideism and Bad Faith Arguments from the Right in US Politics

2026-04-03T14:58:00.000-04:00

I hope that this Friday is good for everyone. Or should I say Good? Anyway, pleasantries aside, this will be a relatively short column to end the week, focusing on what has come to be called bothsidesism, sometimes also known as false equivalence, a topic on which I have written frequently on this blog (most recently here).

More accurately, because the term bothsidesism was coined specifically to highlight a fundamentally dishonest political move -- "I'm bad for wanting to end democracy? Well, you once tried to get a parking ticket fixed by a friend at City Hall. Samesies!" -- I want to explore what we might call onesideism. The number of possible examples is enormous, but I will focus on only two here, one quite simple and the other slightly more complicated.

Have Democrats as a group, or even a large subset thereof, ever glommed onto anything similar to the "Obama is a Muslim" move by Republicans? It is true that John McCain, in the late stages of his losing presidential campaign against Barack Obama in 2008, did the right thing by pushing back against a supporter at a town hall who called Obama "an Arab" (which, to be clear, is the same as calling someone a Muslim only to people who have no idea how to keep their bigotries sorted into nationalist and religious lanes), McCain's answer was less than ideal: "No ma'am, he's a decent family man, citizen, that I just happen to have disagreements with on fundamental issues, and that's what this campaign is all about."

As an ABC affiliate put it (perhaps too) gently ten years later: "Though some have criticized McCain's response as furthering anti-Arab and anti-Muslim sentiments, the exchange came to be viewed as a defining moment in the senator's decadeslong political career." Consider me among the critics who think that "No, I know he's not an Arab because Arabs aren't decent family men or citizens" is less than ideal. Even so, it was a defense of sorts, and because McCain's running mate had been pushing the line about Obama "pallin' around with terrorists," it was notable.

But the point is that there is no equivalent on the Democratic side when it comes to creating a lie and absolutely refusing to let it go. The closest I could come to an example is the ongoing joke about J.D. Vance having sex with -- with, not on -- furniture. But that is something that no one (including the person who started it all as a joke) believes, and it is not intended as a statement of fact. Conspiracy theories about Obama, however, never seem to go away and are fervently believed by large numbers of people on the American right.

The larger onesideist point occurred to me the other day. I happened to be having lunch with a friend in Hyde Park (the one in Chicago), which of course made me think of all of the Chicago School-infused political, legal, and economic arguments that have done so much damage to policy in the US and the world at large for something going on a full century now. This happened to be the day after I wrote these words in my column on Tuesday of this week: "When I say, for example, that although I reject trickle-down economics, I would believe in it if the evidence ever were to show that it works the way conservatives say it works, I mean it. It is difficult to imagine being any other way."

The context of that statement was important, because I chose that as an example of something that I firmly believe -- trickle-down economic policies are terrible -- but that I could be convinced not to believe if the evidence supported changing my mind. Thinking about those people who believe (or claim to believe) in trickle-down economics notwithstanding the complete lack of supporting evidence, I had a snarky thought (and certainly not for the first time): "Well, isn't it convenient that a person who doesn't give a damn about non-rich people can hide behind trickle-down economics as a way to claim not to be elitist, cruel, or racist!"

The point is that someone can hold truly horrific views about the people who are less advantaged in society, blaming them for being lazy or morally defective and undeserving of anything better than their current lots in life, all the while hiding behind the claim that in fact giving tax cuts to rich people will eventually help everyone. "I don't hate poor people. I just know a better way to help them."

And when those stroke-the-rich policies fail to deliver for the umpteenth time, what then? "Oh, I thought it would work this time. I truly care. Bummer." I suppose one could imagine a person being sincere but ignorant (although that would have to be some seriously motivated ignorance), but certainly trickle-down mythology provides a convenient cover for people who view the harms to the non-rich of regressive redistributionist policies as a feature rather than a bug.

So that is one side. What would the equivalent accusation be against people like me? That is, how would a critic from the right frame a snarky response? "You say I'm secretly happy that my favored policies help the rich and hurt the rest, but you're secretly happy that your redistributive policies actually do something that you don't want to admit out loud." What would that something be?

The closest that I have ever heard to a counter-insult in that context is that people like me are "just jealous," which is to say that we care only about taking down successful people even if it did not help the non-rich. Put another way, "You hate rich people so much that you'd support Robin Hood even if he only stole from the rich and never gave it to the poor."

What is the source of our/my supposed hatred? Envy! Envy that other people are more successful, talented, or whatever. The problems with that claim are obvious, but the most basic error is that the supposed haters include large numbers (I daresay even a majority) who could have made large amounts of money but were simply not motivated by that goal. Nearly every liberal law professor I know could have gone the BigLaw route and made serious coin. Economists who are liberal could have gone to business school and cleaned up, and certainly large numbers of economists have monetized their Ph.D.'s in a big way. These are not people who envy other people's superior talents, to say the least.

More importantly, the accusation is off the mark because there are in fact reasons to favor the "half Robin Hood strategy" that I described above. Especially in the last decade, it has become clear that the social, political, and economic damage caused by rich people derives not only from hoarding and withholding "their" money but of rigging the system to make it impossible for them ever to be dislodged. If someone were to accuse a person like me of "being a tax-and-spend liberal because you want to hurt the rich, full stop," my response would be, "Well no, but that is hardly the zinger that you seem to think it is."

Am I saying that non-conservatives are morally perfect and as pure as the driven snow? Of course not. I am saying, however, that there appears to be no equivalent on the left of dodgy trickle-down nonsense, in which at best we know that the rich will get theirs up front while we cross our fingers and hope (or claim to hope) that everyone else will soon feel the warming trickle on their heads that has been promised so many times.

What makes the Trump era different, I suppose, is that we now see many people on the right who have become comfortable -- make that gleeful -- in no longer bothering even to hide their contempt for the "losers." Does that count as progress?

- Neil H. Buchanan

Is "Subject to the Jurisdiction Thereof" a General Principle or a Term of Art? Does It Matter?

2026-04-02T09:44:00.001-04:00

There was a curious apparent methodological reversal during yesterday's oral argument in Trump v. Barbara. At one point, Justice Alito asked ACLU National Legal Director Cecillia Wang, arguing for the plaintiffs/respondents, the following question:

When particular problems pop up, lawmakers may enact a general rule. When they do that, is the application of that general rule limited only to the situations that they had in mind when they adopted the general rule, or do we say they adopted a general rule, they meant for that to apply to later applications that might come up?

Later, Justice Barrett asked a version of the same question, and Justice Kavanaugh referred to it. I think Justices Barrett and Kavanaugh are unlikely to side with the Trump administration in this case but that Justice Alito is very likely to do so. The rest of his questioning made clear that he thinks that, at least when it comes to the meaning of "subject to the jurisdiction thereof" in the Fourteenth Amendment's Citizenship Clause, the answer is that the general rule applies also to later applications that might come up. Under this view, the Wong Kim Ark Court's list of people to whom the exception applies--the common law exceptions to jus soli for foreign sovereigns, ambassadors, warships, and occupying armies, plus children born into Native American Tribes--would be non-exhaustive. If we today face a new situation that falls within the general language of the exception, it too falls within that exception.

As Justice Kagan pointed out during the argument, this move can be at most partially successful. Although illegal immigration as we now understand it did not exist in the 19th century, the phenomenon of children being born to non-citizens who were transient visitors certainly did. I'm going to bracket that concern, however, for two reasons. First, the Trump administration has a different argument with respect to transient visitors: SG John Sauer contends that Wong Kim Ark was long understood as not conferring citizenship on them. I think he's wrong about that, but never mind for now, because second, I want to focus on the jurisprudential issue that is broader than this case.

My initial point is that we see in the dynamics of Justice Alito's question at least a superficial reversal of what we ordinarily expect as an ideological matter. Typically it is the conservatives who say that some constitutional phrase should be confined to what the framers and ratifiers understood it to cover, while liberals say that it should be construed to cover new circumstances as well.

However, that is a superficial reversal. In his initial question, Justice Alito invoked Justice Scalia for the proposition that conservatives can be good textualists/originalists while still giving effect to language in circumstances beyond those originally envisioned. He gave the example of a statute forbidding theft enacted long before the invention of microwave ovens. Nonetheless, Justice Alito said (that Justice Scalia said), obviously the statute applies to the theft of a microwave oven. So maybe there's no ideological reversal here after all. Maybe everyone believes that general language can encompass examples beyond those envisioned by the enactors.

Maybe, but also maybe not. After all, when Justice Gorsuch, writing for the Court in Bostock v. Clayton County, ruled that discrimination "based on . . . sex" as used in Title VII of the 1964 Civil Rights Act encompasses discrimination based on sexual orientation and transgender status, Justice Alito dissented, going so far as to accuse the majority of flying the flag of textualism even while committing the cardinal textualist sin of "'updat[ing]' [an] old statute[] so that [it] better reflect[s] the current values of society." So maybe Justice Alito is a hypocrite after all.

If so, are the liberals also hypocrites for their mirroring reversal? Why do they think that in just this one case a general phrase--"subject to the jurisdiction thereof"--is limited to what it meant at the time of the language's adoption?

I want to offer two means of resolving the puzzle.

First, I'll grant that it is often true that general constitutional language properly encompasses examples beyond those contemplated by its drafters and ratifiers. "Freedom of speech" includes emails and text messages. "Unreasonable searches" includes thermal imaging. Etc. However, not all seemingly general language is best understood as timeless general language. In some circumstances, what looks like timeless general language may be a term of art.

Consider the provision of Article III, Section 2, describing cases falling within the Supreme Court's original jurisdiction to include "all cases affecting ambassadors [and] other public ministers and consuls . . . ." The phrase "other public ministers and consuls" naturally covers U.S. government officials. However, as the Supreme Court tersely held a century ago in Ex Parte Gruber, the phrase applies only to foreign officials.

Or consider the view expressed by the majority in United States v. Stevens about the categories of unprotected speech such as fighting words, obscenity, and so forth. The Court described these as historically rooted exceptions. The theory seems to be that when the framers and ratifiers of the First Amendment decided to protect "the freedom of speech," they meant to protect speech subject to the exceptions then widely known and accepted but subject only to those categorical exceptions. Thus, new justifications for treating a category as unprotected are out of bounds.

To be clear, I don't think that's an accurate account of the prior cases involving unprotected categories. My point isn't that Stevens is right in this respect, but that the notion of constitutional language incorporating (either expressly or implicitly) known applications and exceptions but not future ones is a conceptual possibility that has been recognized in the Supreme Court's cases.

Accordingly, it is entirely possible that the original public meaning of the Fourteenth Amendment's phrase "subject to the jurisdiction thereof" covers exactly the exceptions known at the time and nothing else.

But second, even if that's not so--even if Justice Alito is correct that the phrase "subject to the jurisdiction thereof" could give rise to examples unknown in 1868 or 1898 (when Wong Kim Ark was decided)--the language should be unavailing to the Trump administration. That's because, as the respondents argue, the theory of all of the exceptions is that they refer to people and places that are conceptualized as extraterritorial even when they are physically present within the territory of the United States. The point is made very effectively in the amicus brief of Professor Akhil Amar.

Thus, even if there can be new applications of a principle embodied in the general language of "subject to the jurisdiction thereof," that principle would not encompass children born to undocumented immigrants or transient visitors because they do not implicate a principle of foreign sovereign bubbles within the territory of the United States. Justice Alito's question, though interesting as a general jurisprudential matter, is irrelevant to the outcome of this case.

-- Michael C. Dorf

RFK Jr. and Dr. Oz Double Down on Raccoon Penis

2026-04-01T07:00:00.403-04:00

Many legal scholars and others interested in the law, including me, will undoubtedly be paying attention this morning to the oral argument in Trump v. Barbara, the SCOTUS birthright citizenship case. You can find my latest Verdict column on the case. In the column, I defend birthright citizenship as a matter of fundamental principle, not just as a matter of the Fourteenth Amendment's meaning. I'll almost certainly weigh in on the case again after the oral argument (probably on Friday), but at this point it feels like everything worth saying by way of preview has been said. Accordingly, I thought I'd start the day off with a less weighty, but more bizarre foray into the latest news.

A forthcoming book about HHS Secretary RFK Jr. makes use of previously unknown private diaries to reveal all sorts of interesting tidbits, such as this gem: "In his diary, [RFK Jr.] writes about cutting off the penis of a road-killed raccoon in 2001, while his 'kids waited patiently in the car,' so that he could examine it later." The story just linked provides no further details about what RFK Jr. discovered upon examining the deceased procyonid's phallus, but it does helpfully add that "Google says raccoon penile bones are also known as 'mountain man toothpicks.'" Clicking on the link provided therein reveals additional intriguing facts, including this from a website called World Wildlife Products on a page advertising the sale of a raccoon baculum (a word I learned means raccoon penis bone): in 2004 "Sarah Jessica Parker and Vanessa Williams were both seen wearing raccoon baculum earrings."

There the RFK Jr. raccoon penis trail (as it were) runs dry--or at least it did until Monday, when an intrepid reporter asked Dr. Mehmet Oz, the Administrator for the Centers for Medicare & Medicaid Services, whether he knew what his boss learned from his raccoon penis inspection a quarter of a century ago. Dr. Oz answered:

Raccoon penis has been used in Chinese medicine for millennia. Together with tiger bones, bear bile, pangolin scales, and rhino horn, ground up raccoon penis, even when taken in microdoses, holds considerable promise in treating everything from kidney disease to macular degeneration to erectile dysfunction.

Within hours, Wei Hui, the current president of the American Traditional Chinese Medicine Association (ATCMA), released a statement expressing disagreement:

Raccoon penis has not in fact been used in traditional Chinese medicine. Raccoons are not even native to China. (Raccoon dogs are, but they are unrelated.) Although Dr. Oz is correct about the other products, they have not been part of traditional Chinese medicine for decades. ATCMA members are at the forefront of protecting endangered species, and many are against all use of animal products.

There the matter seemed to have come to rest, except that yesterday morning HHS Secretary Kennedy posted a thread on X announcing a new initiative to "leverage alternative and traditional cures [that] do not rely on hopelessly conflicted big pharmaceutical companies and insurance companies." Among the "therapies" that RFK Jr. said would be "studied, promoted, and funded" was "raccoon baculum powder as a therapeutic in combination with a carnivore diet and ferments." The tweet did not say what this therapy would aim to treat. Later that day, and bypassing all required procedures, Dr. Oz announced on X that "effective immediately" Medicare Part D plans would be required to cover "raccoon baculum" if prescribed for "moderate macular degeneration" or "idiopathic erectile dysfunction."

Needless to say, Dr. Oz's statement is legally problematic, and not just procedurally or because there is no scientific evidence to support the use of raccoon baculum for any medical purpose. As Professor Lewis Grossman told the NY Times, "Medicare Part D can only cover FDA-approved drugs. Needless to say--and I can't believe I'm saying this out loud--raccoon baculum is not FDA-approved." Animal rights and animal protection groups are also opposed to the program. Animal Legal Defense Fund (ALDF) Executive Director Chris Green announced that his organization is "looking into litigation options to prevent this cruel and wholly unnecessary program."

Despite all of those issues, however, blocking Medicare coverage for raccoon baculum could be challenging. Swinging into action almost immediately, Professor Josh Blackman took to the Volokh Conspiracy to write "Rocky: Watch Out" (a title that appears to be a reference to the Beatles song Rocky Raccoon). There he argues that "neither raccoons nor animal rights organizations have standing to challenge" decisions regarding Medicare Part D coverage.

Professor Blackman does not discuss the possibility that a health insurance company that offers a Medicare Part D plan and does not wish to include raccoon baculum in its formulary would have standing. Perhaps he's right not to discuss that possibility: major insurers might be willing to absorb the cost of paying for raccoon baculum to avoid incurring the president's wrath with respect to other matters of greater financial importance. That seems especially likely if, as Dr. Oz suggests, microdoses are at stake.

I couldn't find any information on the Internet about what a regular dose of raccoon baculum would be as treatment for either macular degeneration or erectile dysfunction, but MAHA-inflected social influencer Vani Hari (the self-proclaimed "Food Babe") wrote on her blog that "you can literally derive at least 20,000 microdoses of medicine from a single raccoon penis." From my perspective, that's one raccoon too many to sacrifice for dubious benefit, but I do understand why health insurance companies would not choose raccoon penis as the hill to die on.

Meanwhile, in addition to the regulatory issues, there is a lurking Free Exercise question, at least according to a very short but punchy essay that Professors Stephanie Barclay and Richard Garnett posted late last night on SSRN. While "bracket[ing] the question whether raccoon baculum is an effective modality for any medical purpose," they argue that pursuant to "the most-favored nation rule of Tandon v. Newsom, Dr. Oz was obligated to approve it for medical uses condoned by traditional Chinese medicine--which is rooted in Taoism, a religion for First Amendment purposes--so long as the government allows any secular uses of raccoons, including as pets or for meat." Anticipating an objection along the lines articulated by the ATCMA, they add that "it doesn't matter whether raccoon baculum is part of actual traditional Chinese medicine; free exercise protects idiosyncratic as well as orthodox beliefs."

I would like to say that Professors Barclay and Garnett are mistaken, but their analysis strikes me as in line with recent free exercise precedents. If that proves to be true, then you'll have not only RFK Jr. and Dr. Oz but also the Supreme Court to thank, or more likely to blame, when your ophthalmologist or urologist prescribes raccoon penis.

-- Michael C. Dorf

"Will Self-Criticism Save Colleges?" Is This a Joke?

2026-03-31T15:19:00.224-04:00

Imagine that you regularly receive notification after notification asking you to upgrade from an unpaid subscription to "premium" or some such thing on an app, a streaming service, or some other joyful convenience of modern life. Yes, I know that this strains credulity, and perhaps I am the only person who receives such persistent messages. No one ever complains about such things, right? But please stay with me.

After receiving a flood of such messages trying to get them to pay for supposedly superior service, a person might think: "Gee, I'm tired of these messages, but they won't go away. But wait! Maybe if I finally give in and buy it, this will all stop happening, right?" If you are a person who would harbor such a hope, you might be a Democrat. You also might be an academic. Allow me to explain.

Giving in and buying the product will obviously not stop the onslaught. In fact, it will make matters worse, because you have now revealed yourself as someone who falls for an upsell. There is also a decent chance that your name will be added to a list that other marketers will use to target suckers -- er, "suggestible" people. The marketers do not say, "Oh, that's nice. They said yes, and I'll leave them alone from now on." They salivate while saying, "Wow, that idiot paid for our crappy Premium package! Time to offer them super-premium, then super-duper-premium, then diamond premium, then elite ultra-premium with a cherry on top. Let's bleed 'em dry."

Why am I analogizing this to Democrats and professors? Because both (and of course there is meaningful overlap of the two groups) have demonstrated over time that they think that giving an inch means giving an inch, full stop, which means believing that the party that has taken an inch will say, "Oh, that was reasonable of them. How lovely! We can all get along now."

This was, after all, the fundamental idea behind the self-devouring Democrats who first created the Democratic Leadership Council in the 1980's, then took over the Clinton Administration (getting the new president to drop any pretense of being an actual Democrat), and then spent the ensuing decades telling everyone that the best strategy is always to give more ground. The mantra of the Clintonian "triangulators" was, in essence, "Republicans say we suck, and to be fair, we do. Maybe they'll be nice to us if we act more like them."

How did that go? The Democrats-shouldn't-dare-acting-like-Democrats crowd soon created multiple conservative groups (masquerading as non-conservatives) with names like Third Way. Get it? Because heaven forbid that we align with one of the two existing ways. Democrats? Ick! By the time of the 2020 election cycle, they had pushed the party so far to the right that it was easy for many Democrats to say, "Well, Ronald Reagan had it right when [fill in the blank]," and mean it. Only three weeks ago, The American Prospect (very much not a triangulation magazine) ran a piece with the brilliant headline: "Centrists: Better Things Aren’t Possible," with the telling sub-headline: "Third Way’s strategy session for Democratic moderates lacked any vision other than a hatred for progressives."

And did Republicans reward Democrats for moving their way? No, they simply kept moving further to the right, becoming more openly bigoted and authoritarian, and going from calling Democrats "pathetic" to accusing them of being "groomers." One can almost hear the Biden types thinking to themselves: "But I was so reasonable and told them that they had a point! I never imagined that they would then move on to accusing my side of being child sexual abusers. Why did my accommodating and fair-minded demeanor not win them over?"

The answer is, as it has always been, that Republicans are bullies who not only smell weakness but revel in exploiting it. Both Clintons, Obama, and Biden -- along with the other Democratic nominees whom the triangulators deemed acceptable, like John Kerry and Kamala Harris -- said over and over again that they were reasonable Democrats, by which they meant that they would ignore their own voters in pursuit of some mythical swing voter somewhere. Did Republicans respond by treating the Clintons, Obama, or Biden with respect during their years in office? No. No, they did not.

On the academic side of things, it is a deeply ingrained belief among professors that every accusation should be taken seriously. Years ago, I started dating a woman who was not a professor, and after a few weeks of getting to know each other, she said something like this:

You know, every time I ask you a question about yourself, you first tell me why it might be reasonable to think five bad things about you, only to finally get around to saying that none of those things are true -- probably. The answer to, say, "Are you going to tell me the truth?" should be "Yes," not "Well, I have to admit that there are circumstances in which even honest people might not tell the truth, and although I hope you'll believe me that I'm honest with you, it would be entirely understandable if you thought otherwise." Just stop it!

In general, I think academics' default move toward saying, "Well, to be fair ...," should be a good thing. If I thought otherwise, I would not be so ready to go there in almost every situation. Self-reflection is not only a productive habit, but the alternative to self-reflection is in the extreme being unwilling to brook criticism or ever change. When I say, for example, that although I reject trickle-down economics, I would believe in it if the evidence ever were to show that it works the way conservatives say it works, I mean it. It is difficult to imagine being any other way.

But what happens when this "to be fair" default goes meta? That is, what happens when academics say about academia, as the triangulators do about liberal Democrats, "Well, it's true that we suck"? Do we see a meeting of the minds? No, we see a feeding frenzy on the right as they destroy the very people who hand them the tools to criticize academia.

I was thus not surprised, but still depressed, when I saw the headline that I reproduced in the title of this column -- "Will Self-Criticism Save Colleges?" -- on the March 9 Newsletter of the Chronicle of Higher Education. The first article in the newsletter was: "The Self-Flagellating President: Higher ed finds new critics — in the mirror," with this sub-headline: "More campus leaders are openly agreeing with some right-wing complaints about the sector, and making the case that change will help restore public trust."

Again, this muscle-memory reaction springs from a good place. Being open to criticism is indeed healthy. The problem is that the criticism to which the self-flagellators are agreeing is some combination of utter nonsense and hyped-up anecdotes repeated on a loop. The same people who claimed that "cancel culture" was destroying campuses are now lining up to say, "And look, even those liberals admit that it's true." That will not "restore public trust." It will give critics ammunition to tell the public, "See we told ya so!"

Has self-criticism led to a meeting of the minds? Of course not. It merely creates more momentum in the wrong direction, to the point where Maya Krishnan, a philosophy professor at the University of Chicago, felt the need to write: "Why It’s So Hard for Professors to Say Anything Good About Academe: Against the cheap fashion of denigrating our institutions."

Yet it is not people like Krishnan who are being given the biggest megaphone. Even though The Chronicle did publish that piece, that magazine is in the midst of a veritable orgy of negative coverage of its own subject, to the point where the magazine is now touting Harvard's Danielle Allen as "Academe's most interesting reformer," gushing that Allen "is far stranger than the label ‘moderate’ might suggest. She seems irresistibly drawn to difference, disagreement, competing ways of representing the world." And then: "If you read one thing about higher education this week, make it 'Can Danielle Allen Save Academe From Itself?'"

I did read it, and it is drivel, but it is precisely the kind of self-flagellating drivel that lights up the eyes of people who like to congratulate themselves by saying, "Well surely some self-criticism can only be a good thing, right?" To be useful, criticism has to have substance, and other than the constant repetition of how academia is too something, there is nothing there. Academia does not have to be saved from itself but from hucksters who give ground until there is no ground left to defend.

Are there real-world consequences to this? Of course there are. This is why the American right is gleefully shredding the country's higher education system, which had long been one of the US's most valuable assets. The self-criticism is not taken as the intellectually honest exercise that it is presumably intended to be. It is used as ammunition.

For example, on March 20, the Trump Department of Justice sued Harvard, trying to claw back about a billion dollars of grant money and to cancel all legally required payments of future grants that have been memorialized in existing contracts. As Professor Dorf's column here last Wednesday explains, the complaint asserts that Harvard falsely assured the government it was complying with Title VI when in fact (according to the complaint), Harvard was indifferent to and actively engaged in antisemitism.

I cannot add to Professor Dorf's analysis (or if I could, I see no need to gild that lily), but the point is that the Trump lawsuit against Harvard is an outstanding example of the perils of self-criticism. In fact, most of the alleged evidence of antisemitism cited in the complaint is drawn from a self-critical report that Harvard itself created.

Obviously, people and institutions should be open to new ideas and the possibility of change. Even so, the atmosphere within which higher education now finds itself is about as predatory as one could imagine. One side is saying, "Yeah, we suck, so we'll try to do better," and the other side is saying, "No, everything you could ever do sucks, because you just admitted that you suck. Our goal has always been to destroy you, so thanks for making that easier for us, losers."

And now, I will respond to an upgrade request from a streaming service. That will solve everything.

- Neil H. Buchanan

Broccoli, Birthright Citzenship, and How to Confront Terrible Constitutional Arguments

2026-03-30T07:00:00.009-04:00

In the Spring of 2012, the most publicly discussed constitutional law question of the day was whether the Supreme Court would strike down the Affordable Care Act. The justices had scheduled three days of oral argument--an unprecedented event in modern times. There were numerous issues in the case but almost all the attention was focused on whether Congress had the power to require Americans to buy health insurance under its Article I authority to regulate “commerce among the states.”

Virtually every liberal law professor to discuss the issue publicly thought the answer was easy: health care and health insurance were trillion-dollar industries affecting the commerce of every state and among the states. Moreover, there is not a syllable in the Constitution prohibiting Congress from using economic mandates to regulate commerce. Most pundits agreed. The wonderful Dahlia Lithwick told me that she would publicly eat my book Supreme Myths if the Court said the law was beyond Congress’ commerce clause authority and struck down the law.

I was a lone voice arguing that, unless the Obama Administration dramatically changed its prior litigation strategy, the Court would likely accept the absurd argument floated by conservatives that if Congress had the power to require us to buy health insurance, it could also mandate that we buy broccoli. It turns out that I was right about that prediction even if I failed to see that Chief Justice Roberts would change his mind at the last minute and uphold the mandate as a valid tax even though he joined the other four conservatives to conclude that the commerce clause could not justify the mandate (an impossibly wrong decision based on text, history, and precedent).

My prediction had nothing to do with law, and law had nothing to do with the Court’s ultimate decision. Whatever drove Chief Justice Roberts to save the statute (though an important part was invalidated), and whatever drove the conservatives to invent out of nothing a “no mandate” limitation on Congress’ commerce clause authority, law played at best a minimal role.

I have speculated that one of the reasons Roberts voted to uphold the law as a tax was that up to that point in time he had never voted with the liberals in a 5-4 constitutional law case, and at the time the Court was considered by most commentators to be the “Kennedy Court,” not the Roberts Court. That trope changed dramatically after the case was decided. Whether my lay psychology explanation is valid is not the point. What is important is that predictions before-the-fact and explanations after-the-fact need to go well beyond legalisms.

Last week, JD/PhD student Pranjal Drall and Professor Samuel Moyn of Yale Law School co-authored a three-part blog post on Balkinization comparing the lead-up to the absurdly stupid broccoli argument and this week’s birthright citizenship case, which the Court will hear on Wednesday (I am going to talk about only Moyn because I am not familiar with Drall's prior work. You can find parts 1, 2, and 3 of their blog post here, here, and here, respectively.).

There is much to discuss about these posts but I want to focus on what I think is Moyn’s central concern: liberal scholars when faced with absurdly bad legal arguments in important constitutional law cases should seriously consider not engaging with those arguments because these kinds of decisions are much more about the politics and personal values of the justices than law. Moreover, by engaging with these frivolous arguments on the playing field of legalism, liberal scholars may actually move those contentions, in Jack Balkin’s words, from off-the-wall to on-the-wall. Moyn wrote the following:

The NFIB experience might have taught liberals that ridicule and disbelief are not winning strategies. The individual mandate challenge did not succeed or fail based on the quality of legal argument. It turned on political dynamics that determined which readings of the Commerce Clause were conceivable and credible. If that is also true for the Citizenship Clause, then academics ought to openly discuss whether it makes sense to engage on originalist terms at all, whether to call out the revisionism as a political project rather than a scholarly one, and whether to attack the good faith of the elite legal actors on the other side pretending otherwise.

Those are strategic judgments with difficult tradeoffs. The normalization of your enemy’s argument might happen anyway…and perhaps this mode of engagement is strategically necessary because current judges ultimately need to be supplied “originalist” arguments for birthright citizenship. But treating routine engagement on the merits as the only option, without even acknowledging the choice, is the mistake liberals made in NFIB and are making it again here, even if this particular mainstreaming effort is likely to fail. Doing so requires collusion on interpretive method, which moves our jurisprudence to the right, and may be extremely ill-advised if it obscures other options that are far less costly or more viable or both.

Moyn named numerous law professors in the piece, including my colleague Anthony Kreis as well as Jed Shugerman, Paul Gowder, and Evan Bernick. All four, among many more (like Yale’s Akhil Amar, also discussed in the post), have written publicly about the obvious weaknesses of those arguing that Trump’s Birthright Citizenship Executive Order is or even might be constitutional (it is not under the law). Bernick responded on social media wondering what Moyn actually wanted them to do in the face of such misleading accounts of text, history, and precedent:

The notion that it is somehow inconsistent to 1) claim that the anti-birthright arguments are meritless and then 2) refute them on the merits, is just wrong. “I can’t believe I’m here. These arguments suck. Here’s why” is entirely consistent. The idea that [the defenders of the Executive Order) needed my help to get their arguments taken seriously is also wrong. I engaged precisely because I saw that they were being taken seriously and I did not want them to march unopposed to the Supreme Court.

This debate is about a fundamental question raised by an overly aggressive and obviously political Supreme Court. What is the best way to fight objectively weak legal arguments which may well be accepted by the justices for political or ideological reasons? Moyn’s central thesis is that liberals should seriously consider refusing to play on the field of text, history, and precedent because those factors will not deter the justices from making decisions based on other factors. Bernick counters that leaving that playing field altogether will undoubtedly make it easier for the Court to adopt bad legal arguments. I suspect he, as well as most other legal academics, also believe that their job is to “set the record straight,” as part of their job descriptions and in the scholarly pursuit of clarity and truth. After all, when the Court embraces inaccurate history, more damage is done than just a bad result in a single case. That faulty history lies there to be misused in the future. This disconnect from reality, for example, has been a serious problem for lower court judges and others in the Second Amendment context.

Similar issues have arisen among anti-originalist liberal scholars over whether they should play the “originalism game” in amicus briefs and legal scholarship. It is well-accepted on the left that the justices only use originalism when doing so is consistent with their prior beliefs about how a case should be decided. Will pretending originalism really matters help move the Court away from bad decisions or should we just refuse to play the game because, as the broccoli fiasco demonstrated (and there are many other examples such as presidential immunity and voting rights), the justices will do what they want to do regardless of the merits of legal arguments. Why tacitly accept a mode of reasoning that is both absurd and likely irrelevant to how the Court ultimately decides cases?

These are important questions to discuss. One does not have to be a core legal realist to accept the idea that politics and values matter a lot to the Supreme Court (and obviously not just to the conservatives). But it is also true that presenting nakedly non-legal political arguments to the justices might alienate them even more, as will telling them that originalism is stupid and hopelessly biased against women, people of color, and religious minorities. Moyn would likely respond that it is better not to engage at all with the justices and try to use other political means to further desired outcomes.

But Supreme Court litigation and constitutional law scholarship do not have to be zero-sum games. There is space to make both kinds of arguments. There is room for litigators and scholars to suggest that the Court is using the wrong metric (originalism) to resolve constitutional questions while at the same time marshalling the best arguments using the tools the Court prefers. When doing either, however, it is imperative to also understand who the justices are as people and appeal to them in any way that is ethical, even if that appeal is not framed in traditional legal terms.

In the end, I agree with both Moyn and Bernick, and there may be more common ground between them than might appear at first blush. Manipulating text, history, and precedent, combined with an understanding that those factors rarely carry the day in important constitutional cases, is the landscape legal scholars have to navigate if they want their arguments to be both taken seriously and have maximum impact. Balancing which approach should be emphasized will depend on the particular case and the issues and facts presented.

It is likely that Moyn would respond that the suggested approach will not lead to serious change and serious change in how the Court operates is desperately needed to help return us to a functioning democracy (a lot more would have to happen of course). He may not be wrong. But Bernick and others would likely say that in responding to hopelessly bad legal arguments, scholars should not forget their appropriate role, which is seeking the truth, not bringing the entire system down.

I wrestle with that conflict regularly as someone who thinks the Supreme Court is a terrible institution no matter the politics of the justices who happen to be in power at any given moment. My tentative answer, which Moyn probably won’t like, is to chip away at the artificial structures of constitutional law that hide the true reasons for the Court’s decisions while at the same time doing whatever is possible to minimize the likelihood of bad Court decisions which have terrible consequences. That is often a hard line to discern, but reforming a government institution housing life-tenured officials with almost unreviewable power is no easy task. Maybe those who (like Moyn and me) want to bring it all down, and those who want to stave off or at least minimize bad decisions, should work together instead of against each other and continue this difficult and important debate. That would be at least a good place to start.

Eric Segall

President Trump’s Birthright Citizenship Executive Order: Too Much Detail, Too Little Authority -- Guest Post by Scott Titshaw and Stephen Yale-Loehr

2026-03-27T07:00:00.001-04:00

There are three categories of birthright citizenship recognized around the world. Two of these, citizenship based on place of birth and citizenship inherited from parents at birth, have roots dating back hundreds of years. The third category, hybrid citizenship rules, evolved in the twentieth century.

The United States recognizes inherited citizenship for children born abroad to U.S. citizens, but it has always relied primarily on birthplace citizenship. For over a century, the Fourteenth Amendment of the U.S. Constitution has, with limited exceptions, granted citizenship to everyone born in the United States. Congress assumed this simple birthright citizenship rule when it enacted and later amended the Immigration and Nationality Act (INA). That assumption now permeates our immigration and citizenship statutes.

This reliance on birthplace citizenship is now being questioned. On the first day of his second term, President Trump issued an Executive Order that would overturn this simple rule and replace it with a complex hybrid citizenship scheme. On April 1, the Supreme Court will hear arguments in Trump v. Barbara about whether the Executive Order is legal.

Because the Executive Order is such a bold departure from a national consensus dating back to the nineteenth century, courts and scholars have focused on the text and original meaning of the Citizenship Clause and the INA provision codifying it. But the Executive Order itself would face overwhelming problems even if the Citizenship Clause and the INA were less clear.

Too Much Complexity

Our traditional birthplace citizenship rule focuses on a simple answer to a single question: Was a person born in the United States? If the answer is yes, the child is a citizen. If the answer is no, the child is not a citizen.

The Executive Order eliminates this simple rule to invent a new hybrid citizenship regime, focusing on the parents of “persons born in the United States” and raising a slew of additional questions: What citizenship or immigration status must parents have for their children to qualify? Who counts as a parent in this context? Does it matter if children were born in or out of wedlock? Is there a distinction between the required status of mothers and fathers? What status(es) do U.S.-born noncitizens have?

The Executive Order recognizes the “privilege” of citizenship for U.S.-born children only if their father is a citizen or has lawful permanent residence (a “green card”) or their mother is not “unlawfully present” or in a “presence” that is “lawful but temporary.” The Department of Homeland Security and State Department have tried to explain what this language means, but the technical line-drawing is all based on modern immigration law classifications beyond anything the framers of the Fourteenth Amendment contemplated in 1868.

Among other things, the Executive Order would disqualify children whose parents are in lawful immigration status as students, investors, or temporary workers. For instance, Indian engineers or scientists with approved green card petitions may work legally in the United States for many years while waiting in the line of massive green card backlogs for applicants born in India. Yet their U.S.-born children would not be citizens.

Complicating things further, the Executive Order and agency implementation plans discriminate in the status they require for fathers as opposed to mothers. The children of noncitizen mothers who are asylees or refugees, for example, would be citizens, but the children of asylee or refugee fathers would not. This raises equal protection problems.

Because of its focus on the parents of persons born in the United States, the Executive Order was compelled to decide who counts as a parent. It could have used state definitions of family relationships. Or it might have adopted the federal definitions used for children born abroad who inherit their parents’ U.S. citizenship. But it ignored both.

Instead, the Executive Order reinvents family relationships. It ignores whether the child was born in or out of wedlock and defines the child’s “mother” as “the immediate female biological progenitor” and the “father” as “the immediate male biological progenitor.” Only genetic parents appear to count. These new definitions ignore age-old marital presumptions of parentage that are still generally recognized under state family law. They also ignore parents who use modern reproductive techniques involving donated sperm or eggs. Even if their non-genetic but legal parents are citizens, U.S.-born children may not be. Even if both parents are U.S. citizens, if neither is the child’s genetic parent, the child born on American soil would not be an American. Perversely, the same child born to the same parents abroad could qualify for citizenship under existing law.

Too Little Authority

Taken as a whole, the Executive Order creates a complex modern hybrid citizenship rule similar to those adopted in the United Kingdom, Australia, and Ireland since the 1980s.

There are valid arguments for reconsidering U.S. birthright citizenship rules like lawmakers and voters did in the United Kingdom, Australia, and Ireland. But that national conversation should not be short-circuited by an Executive Order.

Our Constitution delegated enumerated powers to Congress, the President, and the courts. Citizenship is so important that the Constitution defines it in the Fourteenth Amendment. Article I of the Constitution delegates to Congress the power to create other citizenship rules. No one has delegated such power to the President.

The United Kingdom and Australia followed the legal requirements for changing their citizenship rules through proper legislation. Because the Irish Constitution, like ours, mandated birthplace citizenship, the Irish held a referendum and amended it.

The Irish did it the right way. If Americans want to change our birthright citizenship law, we must amend our Constitution as well.

--- Scott Titshaw is a professor of law at Mercer University School of Law. Stephen Yale-Loehr is a retired professor of immigration law practice at Cornell Law School.

Examining the Urge Among Insecure Men (and Some Women) to Inflict Pain on the Weak and Defenseless

2026-03-26T17:08:00.002-04:00

In recent months, I have again become obsessed with (and depressed by) the phenomenon of self-styled manly men exulting in acts of cruelty. As the Trump immigration crackdowns spiraled out of control, one of the most notable aspects of right-wing propagandists' response was their vulgar desire to ridicule and dehumanize their victims, all the while delighting in the spectacle of the ugly meanness of it all.

Kristi Noem (aka "ICE Barbie") may be gone, but the image of Noem standing in front of caged prisoners in El Salvador -- prisoners who had received no due process, meaning that she (and we) could not possibly know whether they were guilty even of immigration violations (which are civil, not criminal, absent additional facts) -- is permanently etched into my mind as an example of how toxic masculinity can metastasize and be embraced even by non-men. Worse still, rather than claiming that what was happening in that photo was somehow not terrible, Noem's social media accounts luxuriated in the cruelty.

There is more than a passing visual resemblance between the Trump Administration's "Look at how we're kicking these weak people's butts!!" posturing and the photo of Trump's eldest son on a safari holding up the tail of an elephant he had killed. It turns out that someone at Forbes in 2012 wrote a piece defending Junior that crossed the line into hagiography ("And Donald Jr. certainly has the good looks Hollywood would cast as the careless son of an American magnate. However, his reputation is clean. He’s a hardworking family man."), which is high comedy in its own right, but this line stands out in the context of what I am discussing here: "Donald Jr. points out, the leopard they hunted in Zimbabwe was not endangered, and they didn’t hunt any of the animals in an unethical way." (Yes, leopard. The elephant was not the only animal he killed.)

To be clear, there is a spirited argument among vegans and animal rights philosophers about whether outrage against hunting is the best use of anyone's energy. After all, the sheer numbers of animals being tortured and killed in factory farms is many orders of magnitude greater than the numbers of animals killed by hunters on any given day. I begin with a "Why not oppose both?" attitude that I concede is not fully responsive, but that discussion is not relevant here. My point is that it is revolting that people think that killing animals in big-game hunts is an enjoyable sport. In that 2012 piece, Trump fils mouths platitudes about hunting as environmental stewardship and even says this:

[H]unting isn’t about killing. Nature actually humbles you. Hunting forces a person to endure, to master themselves, even to truly get to know the wild environment. Actually, along the way, hunting and fishing makes you fall in love with the natural world. This is why hunters so often give back by contributing to conservation. ...

[W]hen I was growing up and other people I knew were getting into trouble, I was somewhere in a deer stand or going to bed early so I could be up before dawn to hunt turkeys. My love of the outdoors kept me solid.

So that explains why Donald Trump, Jr. is such a solid citizen today? Because he got up early, killed turkeys (even though "hunting isn't about killing"), and loved the outdoors? Sure thing. And if one is worried (as Trump Jr. also claimed to be) about the destructive overpopulation of certain animals, the question is why we should respond to that problem by having a bunch of amateurs run off to prove how tough they are by using high-powered rifles to "best" terrified animals.

It is notable that the Wikipedia page for "canned hunts" -- the horrific practice of putting animals in constricted areas, often drugged so that they will put up minimal resistance to the "sportsmen" who pay to kill them -- begins with this: "A canned hunt is a trophy hunt which is not 'fair chase.'" So the non-canned hunters feel that they are morally superior because they only give fair chase, meaning that they can use modern technology to run animals into exhaustion and then kill them, if their expensive high-tech rifles cannot do the job first?

Why would an environmentalist who is merely helping local populations in Africa control their animal populations then stop to pose for photos? Why hunt for trophies, for chrissakes? Again, how different is what Noem was doing last March from all of that, as she smirked in front of her prey after a ridiculously unfair hunt? Or what of Pete Hegseth sneering about the killing of scores of people on the open sea, including people who were clinging to wreckage and were then murdered in cold blood?

"No quarter" is a war crime for obvious reasons, but Hegseth was not fired, admonished, or even challenged by Trump Sr. or anyone in his orbit after saying that "[w]e will keep pushing, keep advancing, no quarter, no mercy for our enemies." Like Noem, Hegseth flaunts his thirst for carnage rather than hiding it. As Democratic Senator Mark Kelly put it:

“No quarter” isn’t some wanna be tough guy line - it means something. An order to give no quarter would mean to take no prisoners and kill them instead. That would violate the law of armed conflict. It would be an illegal order. It would also put American service members at greater risk.

Notably, Senator Kelly and some of his congressional colleagues drew Trump's ire after committing the horrible sin of reminding US military personnel that they should not violate the law: "This administration is pitting our uniformed military and intelligence community professionals against American citizens. Like us, you all swore an oath to protect and defend this Constitution. ... Our laws are clear. You can refuse illegal orders." Of course, Trump and his team want to prosecute those military and intelligence veterans for "sedition." Of course.

But my main interest here is in the enjoyment and celebration of unfair fights by these overgrown bullies. As I reluctantly conceded in a column last week, I experienced in my (early) adult life a moment in which I willfully exploited a physical advantage over a child while playing pickup basketball. To be clear, I did not in any way harm the boy, but I did in that moment get a jolt from blocking the shot of someone who was at least a foot shorter than I was. So I have felt it -- whatever "it" is -- but I also felt shame and then went about the business of becoming a better, more fully mature adult.

At some point, "running up the score" says worse things about the victors than it does about their over-matched opponents. In last year's Wimbledon final match, Iga Świątek defeated Amanda Anisimova in a historic 6–0, 6–0 rout. It was an astonishing thing to watch, but as Anisimova crumbled, Świątek did not gloat or preen. She was gracious in victory, finishing the match as quickly as possible (against an opponent who was not obviously inferior prior to the beginning of play that day) while showing that she was not enjoying someone else's pain. Why do I find it difficult to imagine anyone in Trump's world even being able to conceive of such a thing?

Again, I do know that there is something visceral that might be sitting inside even people who are not Hegseth-like in their day-to-day lives. But when I wrote above that I "gratuitously" exercised my advantage in that basketball game, I could have added "and pointlessly." What exactly does one get, after all, out of proving what anyone with eyes would already know? A 6-foot-1 adult man can block a 5-foot boy's basketball shot. A man with an expensive enough rifle and the right kind of ammo can kill any animal. A team of ICE agents can rappel from helicopters and smash into an apartment building filled with unarmed innocents. People who look or sound Hispanic can be rounded up and put in a gulag. War machines can kill people in boats.

Also, men have the ability to physically abuse their wives and children. Rich and powerful men have the ability to go to the island of a sex trafficker and force children to do things that children should never be forced to do. Stronger people can physically dominate weaker people for their own (twisted) pleasure.

What does any of that prove -- or more pointedly, why does it seem to make the people who are doing it feel like manly men? It is no accident that they reserve especially cruel treatment for trans people, who are among the most powerless people in our society. That these bigots then piously claim that it is the trans people who are the true abusers of innocent children (which deliberately conflates being trans with being a sexual predator, which is a vicious lie) is especially rich in a world where the bigots do nothing about people who have in fact abused innocent children. They themselves are sometimes the ones who have inflicted the abuse.

In a column discussing toxic masculinity a few years ago, I referred to "(the needlessly gendered) [aphorism that] 'a man never stands so tall as when he stoops to help a child,'" adding: "The idea is that growing up and being good involve learning to be part of something larger and caring about -- or at least noticing and minimally respecting -- the humanity of others."

But as I noted in a column that I re-posted here two days ago, the cruelty brigade that is currently laughing about its ability to engage in wanton cruelty toward the weak now seems to reject the very notion that "being good" is a real thing. They mock non-cruel people and accuse us of being performative, that is, of "virtue signaling." It is not possible in their minds, it seems, to imagine that some people are not inhuman monsters. Trumpists take pleasure in harming innocents, so they insist that the people who are not sociopaths are faking it. Rather than trying to learn how to live in a civilized world, they insist that civilized attitudes are a lie.

They are wrong. No matter how much they might want to believe that they are not uniquely awful, they are. Other people are not saints, but at least we try to protect the weak from the predations of emotionally damaged barbarians.

- Neil H. Buchanan

What's Wrong With The Trump Administration's Lawsuit Against Harvard

2026-03-25T07:00:00.023-04:00

Last week, the Department of Justice filed suit against Harvard University, alleging that Harvard is violating Title VI by failing adequately to respond to antisemitism and by itself intentionally discriminating against Jews and Israelis on the basis of race and national origin, respectively. The complaint alleges, in addition to the claims under Title VI, that Harvard is in breach of the contracts for its federal grants because, as part of those contracts, Harvard provided assurances that it was in compliance with Title VI. The government seeks declaratory and injunctive relief, including a declaration that Harvard is not entitled to future payments on existing grants and must repay past grant awards for the period of alleged violation.

The lawsuit is problematic in multiple respects. This story in the Harvard Crimson (in which I'm quoted a number of times) does a nice job of explaining some of them. I'll focus attention on three of the issues here.

(1) As readers may recall, this is not the first legal battle between the second Trump administration and Harvard. In September of last year, Federal District Judge Allison Burroughs granted Harvard's motion for summary judgment, finding that the Trump administration's withholding and cancellation of various federal grants to Harvard based on alleged Title VI violations were unlawful in two main respects: (a) the federal government failed to follow any of the key steps required by statute (42 U.S.C. § 2000d-1) to withhold funds; and (b) the government's actions violated the First Amendment as retaliation, coercion of Harvard's own speech, and an effort to coerce Harvard to violate the free speech rights of students and other third parties.

That ruling is currently pending on appeal before the First Circuit. It is possible it could be reversed in part or in whole, but unless and until that happens, the government's latest lawsuit looks quite a bit like an effort to re-litigate issues that were already decided against it.

(2) The government will likely argue that this new lawsuit is not precluded by the earlier summary judgment because it comes after an investigation and a determination that, in the words of 42 U.S.C. § 2000d-1, "compliance cannot be secured by voluntary means." However, it appears that the government still has not conducted an investigation in accordance with the statutory requirements.

To be sure, the complaint claims that the administration followed a few of its statutory obligations. Paragraphs 8 and 9 respectively state that the Department of Health and Human Services (which makes and administers substantial grants) provided Harvard with notice that it had opened an investigation on February 3, 2025, and with notice of its findings on June 30, 2025. Conveniently omitted from that timeline is the fact that in between, and without adhering to the statutorily mandated procedures, on April 11, 2025, the Trump administration sent Harvard a letter demanding federal control over admissions, hiring, governance, and more.

That omission severely undercuts the new complaint’s assertion that it is authorized by the fact that the Trump administration “has determined that compliance cannot be secured by voluntary means,” as required by 42 U.S.C. § 2000d-1before resort is made to funding cutoffs. For one thing, the administration initially cut funds long before any determination that compliance could not be secured by voluntary means. For another, it is noteworthy that most of the allegations in the government’s new complaint are taken from a report by a task force Harvard itself convened to assess its response to antisemitism and anti-Israeli bias. The production of that report and the follow-up measures Harvard has taken are hardly consistent with the Trump administration’s portrayal of Harvard as indifferent to antisemitism and anti-Israel bias. Moreover, the fact that the government relies so heavily on Harvard's own report strongly indicates that it did not conduct any kind of thorough investigation of its own.

(3) Nor can the Trump administration be taken at its word that voluntary compliance cannot be secured. Negotiations have apparently stalled, but that hardly means that Harvard is unwilling to comply voluntarily with Title VI. Rather, it mostly indicates that Harvard is unwilling to accede to all of the additional conditions that the Trump administration is demanding—including the payment of tribute or ransom wholly unauthorized by any statute and the sacrifice of institutional autonomy. I would not be surprised to see a judicial conclusion that the government has been negotiating in bad faith and thus that its determination that voluntary compliance cannot be obtained is legally invalid.

* * *

Some of the foregoing is adapted from a portion of a statement I submitted yesterday to the U.S. Civil Rights Commission. As readers may recall, last month I testified at the Commission's hearing on campus antisemitism and the Trump administration's response. (I published an unfootnoted version of my original written testimony here on the blog; the hearing can be viewed here.) Late last week, the Commission sent me a couple of follow-up questions. The statement I submitted in response answers those questions and also takes the opportunity to supplement my oral response to a question that a Commissioner posed to me and the other panelists: whether Congress should incorporate the International Holocaust Remembrance Alliance definition of antisemitism into federal law.

No Such Thing As Virtue? (a retitled Dorf on Law Classic)

2026-03-24T15:10:00.002-04:00

Note to readers: Due to extenuating circumstances, I’m unable to post a new column today. Because I plan to write again about toxic masculinity at least once in the near future, I am republishing here a column on that sadly timely subject that I first published just short of three years ago. More to come.

- Neil H. Buchanan

Complaints About "Virtue Signaling" Amount to Claims that There Is No Such Thing as Virtue

By Neil H. Buchanan - March 30, 2023

One of the most obvious strategies that Donald Trump uses is to accuse other people of doing or being exactly what he is doing or being. He tries to cheat people, so he accuses everyone of trying to cheat him. He will stop at nothing, so he claims that his opponents will stop at nothing. He is a racist, so he calls Democrats -- even (especially) non-White Democrats -- racists. He peddles hatred of all kinds, so he says that everyone else hates him and his supporters.

As in so much else, however, this too is a matter in which Trump is merely acting like Republicans have always acted -- only more shamelessly. That is, this is yet another way in which Trump is not a break from the Republican Party but merely its most noxious logical next step. He lacks almost all of the restraints and minimal niceties that have characterized the rest of his party in the post-Civil Rights era, because he does not bother with cover stories, whereas Republicans spent decades perfecting their feints, nods, and winks with terms like "urban" and "thugs" and "strapping young buck" (turning "welfare" into code for "giveaway to lazy minorities"), and so on.

Republicans (especially as the former Southern reactionary Democrats moved en masse to become Republicans in the 1980's and 1990's) have very much been in the business of projection as a political strategy. In my Dorf on Law column on Tuesday of this week, I referred to their adolescent tendency to say, in essence, "I know you are, but what am I?!" This is more than merely trying to get ahead of their opponents, however. They seem simply incapable of believing that anyone can be a good person, so rather than trying to be less bad, they puff up their chests and say, "What, you think you're better than me?" Despite its toxic effects, thinking about this can be somewhat amusing.

Tuesday's column included, among other things, a discussion of whether men who decry other men's toxic masculinity are merely being opportunistic and trying to gain social approval by saying, "Look at me, I'm a different kind of man!" One way in which I have heard that accusation made, which did not come up in the course of that column, is some conservative men's suspicion that liberal men have simply landed upon a sneaky strategy for getting women to have sex with them.

I need not repeat the uglier language that one often hears in such conversations, because this "clean" assertion/accusation captures the essence of it: "Man, you guys have it figured out! If I could fake sincerity like you can, I'd be getting it more than ever. Smart move, if you can stomach pretending to believe that sensitive-guy crap." Again, this reflects the toxic male's refusal to change, combined with an insistence that no one else is truly any different from the worst of their ilk. Anyone who is not doing exactly what toxic males do is supposedly engaged in a long con, a dishonest act of the most cynical kind.

Having spent my life as a straight, cis man who identifies as a feminist and who often spends time with people of all identities who espouse similar views, I can say that toxic masculinists are hardly the only people who have noticed that it might be possible to "fake it" for such self-motivated purposes. Certainly, women are plenty aware of that threat. (Some women claim that men cannot truly be feminists at all, but that is a different matter and has nothing to do with the version of sexual predation at issue here.) Indeed, one of my daughters told me that she and her friends in college referred to a specific type of college dude: "the Nice Guy T M" (as in TradeMark), or what my generation referred to more bluntly as the f*ck-me-I'm-so-sensitive type.

So no one is being fooled. If toxic masculinists think that faking sincerity is a uniquely effective path to the bedroom, they are showing yet again that they do not understand any of this. In short, they think that women are simpletons, and they think that every other man thinks that women are simpletons, too. When toxic masculinists' lives do not go as they would prefer, they lash out and say that everyone else is being performative and getting something unfairly -- in this case, casual sex.

Which brings us to the relatively recent pejorative coinage known as "virtue signaling." Like its close cousins "political correctness," "cancel culture," and most recently "woke," this is a vague concept that would only have an identifiable meaning if applied in a nonpartisan, non-ideological fashion. Conservatives send out signals to show that they have the correct views all the time. Think: red baseball hats with white letters emblazoned across the front. When it is no longer possible for Republican senators to disagree with the false claim that regressive tax cuts pay for themselves, we have conservative political correctness driving policy. When extremely conservative politicians are "primaried" for daring to condemn Trump's lawlessness, we have conservative cancel culture. When Republicans tell each other that they have to stop sleeping on their responsibility to stop the "weaponization of the federal government," we have conservative wokeness. Indeed, that particular mindset is much broader, as in: Wake up, sheeple!!

And virtue signaling? As above, liberal men are supposedly merely trying to look good to a target audience by mouthing the right phrases. Meanwhile, every conservative feels the need to say something like, "My pronouns are lab/leak/conspiracy." Nothing being signaled to a target audience there!

But again, there is nothing new here among conservatives. They have been virtue signaling forever, not because they hold objectionable views (or not only because of that) but because social interactions are always a matter of communicating through signals. What makes them different is that they want to convince other people (and themselves) that their views are not objectionable at all -- not because they can claim with a straight face that, say, allowing marital rape is "no less enlightened" than opposing marital rape but by asserting that those who oppose it are simply full of crap.

The difference with Trump is in the timing, with his provocations used in advance to neutralize claims that will surely be leveled against him. Before his opponents are able to say a word, he has degraded their forthcoming criticisms. That is not to say that Republicans and conservatives before Trump's rise had never done anything similar, only that Trump does it nearly constantly. It is a highly effective way to muddy the waters. If Trump calls people radicals, fascists, and so on, what can his opponents do? "No, you'reradical. You're a fascist!" At worst, it becomes a matter of turning the discussion into playground taunts, but at its most effective, it takes away Trump's opponents ability even to level honest charges.

Trump's reactions to the various prosecutions that are bearing down on him provide the most recent examples of this. He calls Manhattan District Attorney Alvin Bragg a radical and a racist. He also, however, calls Bragg an "animal," which is not a matter of anticipating what his opponents might say about him but is instead part of his own racism, where he leans into some of the ugliest efforts to dehumanize Black people. I should hasten to add that Professor Sherry Colb would have been the first to say that Trump should only wish that he (or any other person) is more like a non-human animal, because it is in our differences from other animals that humans are at their worst.

Indeed, Trump would take it as a compliment, but it might be the most profound insult to him to say that he exhibits everything that is wrong with being too little like an animal -- no loyalty, no caring, no selflessness. We sometimes mistakenly conflate "monsters" and "animals," but the best way to think of monsters is as the mythical beings that embody all of the negative traits that we wrongly attribute to non-humans. Except that Trump is non-mythical. As he might say: sad.

For what it might be worth, my prediction is that at some point soon, either an old recording will emerge in which Trump is heard using the n-word, or he will actually say that word live on a hot mic (or maybe even in full voice at a rally). At that point, he will insist that there is nothing wrong with that slur (because he never admits to being wrong about anything), and his supporters will -- after a few days of looking around nervously to see what is happening -- breathe a huge sigh of relief and start saying it (in public) again themselves.

In any event, it is worth remembering that it was long, long before Election Day in 2020 that Trump started to lay the groundwork to steal the election. All the while, he said that his opponents were trying to steal the election. Even if many people did not believe that Trump was innocent, the idea was to get people to say that "they're all the same." What, you think you're better than me? You're no better than me! And when Republicans say, for example, that Democrats are hypocrites who engage in gerrymandering even as they condemn Republicans for gerrymandering, they try to win either way: Democrats can either unilaterally disarm or agree that gerrymandering is not a bad thing. Everything else is empty virtue signaling.

Interestingly, it is American conservatives who have been most exercised over the years about moral relativism, claiming that the left has no moral absolutes and that there truly are standards to determine what is right and wrong. Laws are there to express those views, and they should be enforced. Yet when it comes to laws that they do not like, they claim that the law cannot be used to change what people do. If guns are outlawed, only outlaws will have guns; so one imagines that if murder is outlawed, only murderers will kill people ... which is somehow a reason not to outlaw murder?

But the claims from the right about virtue signaling and the rest are a concession that their own views are unpopular and indefensible. They have nothing to say about solving real problems in people's lives, so they target vulnerable people for even harsher treatment. Then, they call people who oppose Republicans' anti-trans legislation "groomers." When Black people finally started to say out loud that the US seems to treat black lives as expendable and insisted that Black lives do in fact matter, the right responded by saying that all lives matter or that Blue lives matter. It is all a strategy of distractions and claiming that dominant groups are being unfairly treated.

Certainly, the longstanding cries from the right about reverse racism fit this pattern. Any change in White privilege is not a matter of undoing injustice but attacking innocents. A young conservative father, pointing to his toddler son, looked at me recently and said with great sincerity: "He's going to have a tougher time in life than anyone, because he's a White male, and society is making life for us impossible." Any attempt to present simple facts about racial and ethnic differences in the US regarding life expectancy, childhood mortality, access to education, lifetime earnings, and so on is just "woke nonsense." Unearned privilege knows where its power comes from, and it defends itself by pretending that any change in the world is a matter of giving unearned privilege to others.

Question: Why change one's views when it is so much easier to claim that everyone else is just as bad as you are? American conservatives' response to that question is: Why indeed!

- Neil H. Buchanan

Afroman Is The Free Speech Hero We Need

2026-03-23T07:00:00.001-04:00

After Timothée Chalamet's beef with opera and ballet, the best relatively harmless recent story to divert us from more serious news has to be the triumph of Joseph Foreman, better known as Afroman, in his defense against a civil lawsuit. Readers unfamiliar with the tale could do worse than to watch Jordan Klepper's Daily Show segment on the case. For those of you who don't have the time to watch the video just linked, I'll start with a synopsis.

Afroman is best known for his 2000 hit song and music video Because I Got High (featuring Jay and Silent Bob of Clerks fame). In 2022, heavily armed officers in combat fatigues from the Sherriff's office of Adams County, Ohio raided and searched Afroman's home. They didn't find evidence of anything but they caused some damage and were caught on video surveillance in a number of unprofessional positions, including one officer who looked longingly at a lemon pound cake in Afroman's kitchen. Afroman, understandably upset about the invasion of his home, responded with a number of satirical music videos that incorporated his surveillance camera footage of various of the officers.

The videos include Will You Help Me Repair My Door?, Lemon Pound Cake, and Why You Disconnecting My Video Camera, in which Afroman accuses the officers of racism and corruption, while also making an obviously false-and-not-intended-to-be-taken-seriously claim about having had sex with the wife of Sergeant Randy Walters. ("Randy Walters private cop. I used to fuck his wife doggy style." The Daily Show segment includes a snippet of another video, Randy Walters Is a Son of a Bitch, in which Afroman sings "Randy Walters is a son of a bitch. That's why I fucked his wife and got filthy rich.")

Seven officers sued Afroman in state court, alleging that the videos were defamatory, subjected them to false light publicity, and appropriated their images for commercial purposes. The trial judge dismissed the commercial appropriation claim but permitted the other claims to go to trial. Last week, the jury returned a verdict for Afroman--and for freedom of speech--on all claims by all plaintiffs. That verdict is undoubtedly correct, but the case raises two interesting questions.

First, why there was even a trial? Why didn't the judge dismiss all the claims before trial? The Daily Show segment does a good job in a short time of demonstrating the absurdity of the defamation claims. It makes clear that Afroman was not seriously alleging that he had sex with the wife of Sergeant Waters, that Waters himself did not believe the allegation, and that no reasonable person could believe it to be true either. And that's enough to avoid civil liability for defamation. A statement that is clearly intended as a joke, opinion, or hyperbole simply can't be defamatory because a defamatory statement is a false statement that harms reputation, but a statement that is plainly not intended to be expressive of truth is necessarily not false. So far as the law is concerned, it does not have a propositional value.

The trial judge also should have dismissed the false light publicity claims. Consider the Supreme Court's 1988 decision in Hustler v. Falwell. Hustler magazine published a parody ad (of a then-popular series of ads) in which Jerry Falwell was portrayed as having lost his virginity "during a drunken incestuous rendezvous with his mother in an outhouse." Falwell sued Hustler, alleging intentional infliction of emotional distress (IIED). The Supreme Court unanimously disallowed liability. Chief Justice Rehnquist, speaking for the Court, explained that the same First Amendment doctrine that restricts liability for defamation also restricts liability for IIED claims based on speech about public figures.

To be sure, Hustler involved an IIED claim, but the key point of the case is that plaintiffs cannot evade the limits the First Amendment places on defamation liability by pleading other related causes of action. If that's true for IIED, it's equally true for false light publicity--as the Court said much earlier, in Time v. Hill in 1967.

Hustler involved Jerry Falwell, a public figure, whereas (at least prior to this case) Randy Walters was not a public figure. However, Walters was a public official, which makes Afroman's defense all the stronger. The Supreme Court in New York Times v. Sullivan held that the First Amendment imposes limits on defamation claims by public officials. Only later did the Court extend those limits to suits by public figures. The core of the doctrine is its application to public officials because the core of free speech is the right to criticize those who exercise power in the public's name. And Afroman's music videos plainly do just that.

Second, why did the plaintiffs bring this case? On cross-examination, the officer caught coveting the pound cake stated that he had suffered insofar as some people now call him "Pound Cake" and send him pound cakes. Needless to say, that has led to considerable mockery. Other officers appear to have suffered more serious consequences due to online trolls, etc., but even so, the principal impact of the lawsuit was the "Streisand effect," whereby the plaintiffs have called a whole lot more attention to Afroman's music videos than there would have been had they not sued. Perhaps that would have been a price they thought worth paying if they won a verdict and judgment, but given the odds that they would lose, gambling on a victory while ensuring certain widespread ridicule was an odd choice.

* * *

Parties who offer free speech claims or defenses to vindicate constitutional rights are often quite unsavory. Hustler magazine is crudely misogynist. The protagonist in the leading case establishing the limits on incitement liability was a racist and antisemitic Klansman. Civil libertarians nonetheless support their causes because important principles are at stake. Important principles are at stake in Afroman's case as well, but one need not hold one's nose in supporting his cause. As NPR reported:

"I didn't win, America won," Afroman, 51, told reporters outside the court, dressed in his American flag-patterned suit, tie and aviators . . . . "America still has freedom of speech. It's still for the people, by the people."

The people hope you're right, Afroman, and we thank you.

Does Bruen Insanity Violate the Tenth Amendment?

2026-03-20T07:00:00.092-04:00

Since the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen in 2022, I have written numerous blog posts and essays criticizing the opinion’s “insanity.” In Bruen, the Supreme Court invalidated a 1911 New York gun law on history and tradition grounds. More important than the specific result in the case, however, was the Court’s announcement of a brand new test to establish the validity of modern gun laws.

In an opinion written by Justice Clarence Thomas, the Court decided that contemporary gun legislation can only be upheld by judges if the government points to similar laws passed either in 1791 or 1868. The Court rejected the traditional and historically justified balancing approach the Court uses to decide most constitutional law cases, whereby the justices weigh the importance of the asserted right against the government’s justifications for the law. I have described this new framework as follows:

The Court’s decision in Bruen is not steeped in text, history, or precedent. At the founding and in 1868 when the Reconstruction Amendments were ratified, judges in constitutional litigation routinely used a balancing test to determine the validity of state and federal laws. It is likely that one motivating factor for the Bruen text-and-history-only method was the Justices’ fear that the public safety impacts of gun laws will always be relatively easy to see and will often outweigh the asserted gun right in the case. But that is exactly how the interpretation of the Second Amendment should proceed.

We should not be seeking answers from a society hundreds of years removed from today when weapons were much weaker than they are today, urban areas far less populated, and society in general so different. Even assuming that District of Columbia v. Heller correctly found an individual right to own guns separate from militia service, that right, like all constitutional rights, is not absolute and can be limited in the name of an important public good. A bad actor cannot legally yell “fire” in a crowded theater (unless there really is one), and similarly a bad actor should not be allowed to bring a lethal killing tool inside a crowded theater if a town, city, or state so desires. The Bruen decision, however, likely takes that decision out of the hands of elected leaders and places it in the hands of unelected, life-tenured judges. And that method of keeping our country safe is, quite simply, constitutional insanity.

In a provocative new article forthcoming in the University of Chicago Law Review titled “Bruen’s Tenth Amendment Problem,” Professors Jake Charles and Jonah Gelbach put forth a new critique of Bruen that has not been previously articulated by the many scholars who have strongly lamented the Court’s rationale. In their article, the authors suggest that Bruen violates the Tenth Amendment to the United States Constitution because it divests the states of a power that was reserved to them by that Amendment. The authors argue that legislative choice (whether or not to enact a law) is a power reserved to the states and not given to the federal government. Bruen’s holding that contemporary gun laws that do not have analogues either in 1791 or 1868 are invalid violates the states’ reserved power to not address problems in a legislative manner. The authors summarize their arguments as follows:

In Bruen, the Supreme Court applied a novel history-and-tradition framework to Second Amendment claims. That test keys the validity of modern gun laws to their similarity with historical analogues. Although scores of commentators have critiqued that approach, this Article identifies a critical constitutional flaw that has escaped focused attention: if Bruen’s test is not recalibrated, it violates the Tenth Amendment. The Tenth Amendment preserves to States all powers the U.S. Constitution did not divest from them. This Article argues that a crucial reserved power is the power of legislative choice—the States’ second-order power to choose whether to act or not, including whether to change course. Bruen’s requirement that each modern law match a historical precursor infringes on this reserved power, because it impermissibly removes from today’s legislatures a whole vista of choices available to their Founding-era predecessors. It withdraws a reserved State power that was woven into the Constitution when the Second Amendment was ratified: the power to do things differently today than before.

Although I am not completely persuaded by the authors' ultimate Tenth Amendment argument for reasons discussed below, I highly recommend this article for its blistering criticisms of the Bruen test. Whether or not Bruen actually violates the Tenth Amendment as currently applied (the authors put forth helpful suggestions to reduce the current insanity of the test), the authors' federalism concerns are persuasive and should be used by legal scholars to further criticize the history and tradition only test the Court invented in Bruen.

The Tenth Amendment provides the following: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The essential idea is that states retain all powers that are either not given to the federal government by the Constitution or prohibited by the Constitution to the states. The states have no authority to enact laws that violate the Second Amendment, however, so it is a bit difficult to see how the Tenth Amendment is violated if states act in ways that the Court deems to be inconsistent with the Constitution. If the authors are correct, it may be that every time the Supreme Court interprets the Constitution to limit state power in ways that critics think are wrong, the Tenth Amendment is violated. If so, the authors' analysis is just another way of saying that the Court should interpret the Constitution correctly; otherwise the Court is acting improperly.

For example, in Janus v , AFSCME, the Court held that states violate the First Amendment when they require their employees to pay partial union dues whether or not they belong to the union. Many scholars believe this decision erroneously interprets the free speech clause and limits state authority in a manner inconsistent with federalism principles. Does that mean Janus also violates the Tenth Amendment? And, even if it does, what does that conclusion add to the analysis?

But it is also possible that Bruen's history and tradition only approach is unique in how the Court's constitutional interpretations raise Tenth Amendment concerns. The conservative justices are essentially taking away a power the states should have for all time, the authority to enact legislation or not, and converting that power into a "use it or lose it" power that is forfeited unless it was exercised long ago. I do not think the authors believe that every Court decision that erroneously limits state power violates the Tenth Amendment, but I would have liked a bit more discussion of that issue. The states whose powers were wrongfully limited by the Court in Janus, and the states that for decades argued that Roe and Casey were wrongly decided, also likely thought that those decisions were at least inconsistent with, if not violative of, the Tenth Amendment.

Nevertheless, Bruen is an intolerable decision creating mass chaos in the lower courts. It also erroneously interprets the Second Amendment in ways that violate traditional federalism principles. Critics of the opinion should use every reasonable weapon at their disposal to undercut Bruen and end the insanity it has caused. To that end, I highly recommend reading “Bruen’s Tenth Amendment Problem,” by Professors Jake Charles and Jonah Gelbach.

-- Eric Segall

Oh Good Gravy! College Presidents Are Now Directly Firing Professors

2026-03-19T14:32:00.000-04:00

I drafted this column's headline more than six months ago, but I never actually wrote the column to go with it. Although the content of today's column covers more than the specific problem noted, I still like the headline enough to stick with it. A more boring, accurate headline might be: "Republicans Continue to Prove That They Never Cared About Intellectual Diversity," or something like that.

In any event, the news story that inspired today's headline was "Texas Professor Fired After Accusations of Teaching 'Gender Ideology,'" with the subheadline "Two administrators also lost their posts at Texas A&M, an example of how Republican policies meant to curb liberal ideas are reaching into university classrooms," which The New York Times published on September 10, 2025. That article reported that

Texas A&M University swiftly fired a lecturer and removed two administrators after a student filmed herself arguing with the instructor that a children’s literature course broke the law because the coursework recognized more than two genders. ...
Mark Welsh, Texas A&M’s president, said he terminated the instructor, Melissa McCoul, and removed the dean of the College of Arts and Sciences and head of the English department from their posts. ...
Gov. Greg Abbott said, in a post on social media responding to the video of the classroom at Texas A&M, that the teaching of gender depicted in the class was “contrary to Texas law.” But it was not clear what law Mr. Abbott was referring to. A spokesman for the governor pointed to the termination letter sent to Dr. McCoul that did not directly allege any violation of state law.

That story broke less than a month after I wrote "The Grim March Toward Enforced Right-Wing Groupthink in US Universities," here on Dorf on Law. There, I quoted the recently ousted President of the University of Florida's disingenuous claim that "[t]he culture of ideological conformity and monoculture at [American universities] is unhealthy not just for them, but for the nation at large." Monoculture. Check. I then argued that

the Trumpian right is no longer trying to set up alternatives to the elite institutions that they have habitually smeared. Instead, they are now busily remaking everything to fit their idea of what a university is supposed to be. Which is? A true "monoculture" in which even to be in favor of, say, diversity is a fireable offense, and where teaching about systemic racism (or really about bigotry of any kind) is potentially criminal. For all of their complaints about non-conservatives' supposed intolerance of opposing views, these people are the most intolerant snowflakes imaginable.

Although I did in fact call that one correctly, I am not going to take much of a victory lap, because it has long been obvious that this was the true agenda on the right. And sure enough, the news on the higher education front in the six months since that incident at Texas A&M has been littered with more stories about summary dismissals of non-compliant professors and other staff, while Republican-led states around the country have been falling all over themselves to enact laws making it illegal to say anything in a classroom that would bother a Trumpist true believer. Texas A&M even managed to make the news again in January:

Over the past six years, Leonard Bright has provoked hours-long discussions in his graduate-level “Ethics of Public Policy” course about the thorniest corners of contemporary politics: What is critical race theory? Is DEI dividing America? Should transgender athletes be allowed to compete in women’s sports?

So when Bright, a professor at Texas A&M University’s Bush School of Government and Public Service, received an email earlier this month from a department head asking when and how he planned to teach about sexuality in the course, and whether he planned to advocate for race ideology, he knew he was in for a frustrating back-and-forth.

Under a new Texas A&M systemwide policy, professors are not allowed to advocate for race or gender ideology or teach about topics related to sexual orientation or gender identity unless they can prove to administrators that it’s required for accreditation or career preparation.

After a series of sharp and, at times, combative email exchanges, administrators decided last week to cancel his class.

They say Bright was being uncooperative.

In an interview with The Chronicle, Bright said administrators were using arbitrary definitions of “advocacy” and “controversial content” in their course reviews. Classroom discussions, he said, are impromptu and impossible to predict.

But one-by-one enforcement of right-wing viewpoint monoculture is laborious and takes time. How to speed up the assembly line to make sure that every university in every red state has a flattened intellectual life? One of the more shameless strategies to enforce the new groupthink is the creation of "civics" centers within universities. My most recent academic home, the University of Florida at Gainesville, has one such center, and the person who created it then moved to the University of Texas-Austin as provost. That once-great university now has one as well.

There is no longer even a robust attempt to say that they are not in the business of hiring conservatives, not just at Florida and in Texas but elsewhere. In my column last week describing how violence is becoming more and more acceptable on the right, I pointed out that the thuggery had recently spilled over into higher education. At The Ohio State University, a newly hired professor in the "Salmon P. Chase Center for Civics, Culture and Society," attacked a reporter who had the temerity to try to ask a question after a speaker had said that he would take no more questions. A New York Times news story about the incident noted that the violent professor's "listed areas of expertise include the ethics of war and international human rights [and] is among the roughly two dozen academics on the Chase Center’s faculty." The article then added this regarding The Ohio State's center:

The state government created the center with the budget that was signed into law in 2023 to “conduct teaching and research in the historical ideas, traditions and texts that have shaped the American constitutional order and society.”
The law says the center’s mission includes educating “students by means of free, open and rigorous intellectual inquiry to seek the truth” and affirming “the value of intellectual diversity in higher education.” Republican politicians across the country have championed such centers, arguing that they can promote free debate and Western values on campuses that they believe have become hubs of liberal ideology.

Except of course there is no free debate about anything at those centers. It is all about being performatively anti-lib. Indeed, the professor in question decided to turn himself into an ad hoc bouncer at a speaking event by The Ohio State's former president, Gordon Gee, because Gee had been asked questions about Jeffrey Epstein.

(Aside: There have been calls to strip former Victoria's Secret owner Les Wexner's name from some of The Ohio State University's facilities, because Wexner had come up prominently in the Epstein files and was subpoenaed last month to testify before a congressional committee. In response, Gee predictably argued that "[t]his is the cancel culture gone wild." But wait. I thought cancel culture (which is a hyped-up myth, but stay with me) was supposed to be bad because it made students on campus feel marginalized. It is thus interesting to see that yelling "cancel culture" is the muscle-memory response from conservatives, even when the issue is a donor's ties to a convicted sex trafficker.)

Meanwhile, earlier this month we learned that North Carolina's heavily gerrymandered super-majorities in its state legislature also created a "School of Civic Life and Leadership," and it is not going well. The university paid $1.2 million for an outside investigation of the school, but the university now claims that it is not allowed to release the results. What was the problem?

Lee H. Roberts, the university’s chancellor, announced the investigation in September, as the school found itself mired in controversy over its hiring practices and other issues. [Dean Jud] Atkins was publicly accused by several former faculty in the school of inappropriately strong-arming job searches, ignoring the input of inaugural faculty for a number of external hires. ...
Public scrutiny of the school began long before the contentious faculty searches. When the school was originally announced in 2023, by a unanimous resolution passed by the Board of Trustees, many faculty and community members were taken by surprise.
Its founding was spearheaded by the university’s now-former provost, Chris Clemens, an outspoken conservative who helped write the initial proposal for the school to the legislature.
The school opened its doors in August 2024, soon announcing 11 new external hires in addition to an original slate of nine adjuncts. Four of the inaugural instructors left within months, some upset with how it was being run.

This is, in short, a sketchy new world that can barely maintain the pretense that it is anything other than a new reactionary monoculture. And it is being created by using a very old trick. During the intellectual battles over the future of economics departments in the 1970's and 1980's, for example, some universities created parallel departments that would hire conservative scholars exclusively. The old departments would then be bled dry of resources, denied the ability to run graduate programs, and essentially phased out by attrition.

I am not currently aware of any university that is engaged in outright firings of non-MAGA professors at scale (although the "post-tenure review" process at Florida is ready-made for that purpose), but that is not the only way to create their closed monoculture. All they have to do is shovel money into their new centers, adding courses and enrollments, and then say that "the customer is always right" (in this case meaning the students who enroll in the courses that are obviously being favored by the powers that be). The old departments and professional schools can then be axed.

So yes, college presidents are now micromanaging course offerings. Republican state legislatures are making it illegal even to say certain words. Politicians and right-wing donors to universities are creating "civics centers" that end up enforcing intellectual conformity through the hiring of illiberal thugs -- and in at least one case, that characterization is not metaphorical. At worst, the old world of higher education was a place where conservatives could get hired but felt outnumbered or disrespected. Now, their version of setting things straight is to make sure that they are the only game in town. Viewpoint diversity, my eye.

- Neil H. Buchanan

Meanness, Cruelty, and Unmanly Men

2026-03-18T15:49:00.002-04:00

California Governor Gavin Newsom has dyslexia. Most people might imagine that that would count as a very small news item, if indeed it counts as news at all. Donald Trump, however, always leaps on any opportunity to demean people, especially when it involves something that a 9-year-old would use to bully other kids. Trump thus said this, while speaking in the Oval Office the other day:

Honestly, I’m all for people with learning disabilities, but not for my president. I don’t want... I think a president should not have learning disabilities, OK? I know it’s highly controversial to say such a horrible thing. The president of the United States, Gavin Newscum, admitted that he has learning disabilities, dyslexia... ah... everything about him is dumb.

Leaving aside the fact that Trump's fake name for Newsom is simply pathetic (like almost all of Trump's insults, "Li'l Marco" being the only exception), the obvious story here is that Trump once again showed himself to be the smallest, weakest man in the world. He also handed Newsom on a silver platter -- although we know that Trump prefers gold -- an opportunity to be a very strong, kind man. Newsom delivered: "To every kid with a learning disability: don’t let anyone — not even the President of the United States — bully you. Dyslexia isn’t a weakness. It’s your strength."

The governor also feasted on Trump's blunder in referring to Newsom as the President of the United States, with his press office issuing this social media post (mimicking standard Trump "style"):

Kudos to Newsom. Here, I want to comment again on the contemptible cowardice that we see so often with Trump's pre-adolescent nastiness. Again, the key sentence was this: "The president of the United States, Gavin Newscum, admitted that he has learning disabilities, dyslexia... ah... everything about him is dumb." So having a learning disability is part of being "dumb." No one is surprised that Trump thinks that way, but even such unsurprising meanness needs to be condemned.

A few months ago, I was startled to learn that the Trumpists' rage toward DEI had at some point expanded to DEIA -- diversity, equity, inclusion, and accessibility. Yes, they are actually angry about efforts to make society more accessible to people with various disabilities. As I wrote at the time, "I knew that Trump was willing to mock people with disabilities, but that was hardly his go-to bigotry. [But] apparently[,] some hardcore Trump supporters (and Trump himself) want to be able to use the word that does not rhyme with reward as freely as they once did in gym class."

Even though it was indeed surprising to learn that the Trump bullies had added a letter to their least favorite acronym, this particular type of bigotry is fully consistent with everything we have long known about Trump. He and his people gleefully mocked Joe Biden's stammer, for example, and Trump in 2015 sneeringly caricatured -- in the most insulting way possible -- the arm movements of a news reporter who has arthrogryposis, a condition that affects the movement of joints.

But people living with various disabilities are only one group within the universe of people that Trump scorns. The common thread is the relative weakness of Trump's targets. He hits people who cannot hit back, and he exults in physical attacks on people whom he hates. Reporters are professionally bound not to return his insults, so he calls them names and personally belittles them. He dishes out more of the same for judges who displease him. Oh, and of course there are the soldiers and civilians harmed by Trump's war in Iran. People are dying? Shrug.

I understand that there can be a desire to physically dominate in certain situations, even to the point of being unkind, which I can illustrate with a truly embarrassing personal anecdote. In my early twenties, a friend and I were shooting baskets at a nearby playground, and after a few minutes an assortment of other people had arrived, ranging in age from about 10 to 20. Someone had the idea for all of us to play a five-on-five game, and at one point I blocked a shot by one of the youngest players, who was at least a foot shorter than I was. My friend pulled me aside and said, "Not cool." I am sorry to say that my response in the moment was, "What? I thought we were playing to win." My friend immediately set me straight, and I changed my approach to the game. To be clear, I did not hurt the boy physically (or even touch him), but my effort to best him by showing how big I was obviously reflects poorly on the man that I was at the time.

Throughout people's lives, but especially when we are growing up, there are times when a friend, parent, teacher, or other trusted person needs to intervene and say in clear terms: Dominating the weak is itself weakness, while the sign of true strength is to stand up for those who are being bullied. It surprised me that I had not yet learned my last lesson along those lines as late as my early twenties, and it is possible that there are even now some lessons that I have not yet learned. But the fact that people are imperfect cannot change the fact that Trump and his people fully revel in their cruelty. If anyone in their lives ever tried to set them straight, it did not take. Somehow, they see being antisocial as the key to success.

Worse, they think that their cruelty is what makes them manly. The former talk-show co-host who is currently in charge of the Defense Department is an extreme example of this, with his calls for war crimes as a matter of policy. And Trump's apologists attempt to deflect the toxic masculinity issue by saying that people like me are merely "virtue signaling" when we call on men to be civilized members of society. It has been more than thirty years since "Saturday Night Live" lampooned that panicky defensiveness with a fake game show, "What, you think you're better than me?" And now, the toxic sociopaths are unleashed, with performative cruelty being the coin of the realm. Such weakness.

- Neil H. Buchanan

The Fact That Judge VanDyke Is Sincerely Transphobic Doesn't Mean He Isn't Auditioning For A SCOTUS Nomination

2026-03-17T07:00:00.001-04:00

My latest Verdict column is titled From “Fuck the Draft” to “Swinging Dicks”: Appropriate and Inappropriate Vulgarity in Judicial Opinions. It discusses the already-notorious dissent from the denial of en banc reconsideration by Ninth Circuit Judge Lawrence VanDyke in Olympus Spa v. Andretti. As I explain in the column, there are two main differences between the use of the phrase "Fuck the Draft" by the lawyer and in the eventual Supreme Court opinion in Cohen v. California versus Judge VanDyke's use of the phrase "swinging dicks" in his Olympus Spa dissent: First, in Cohen, the question whether the phrase "Fuck the Draft" (written on a jacket worn by the petitioner) was protected free speech was the very heart of the case, whereas Judge VanDyke gratuitously introduced the vulgar "swinging dicks" into Olympus Spa. Second, although no doubt some sensibilities were offended by Cohen's display and its role in Supreme Court litigation, it did not target anyone, whereas Judge VanDyke's dissent bristles with transphobic animus. As I note in the column with a string of quotations, that animus manifests in many ways, including but hardly limited to his use of "swinging dicks." The dissent thus confirms the American Bar Association's warning upon Judge VanDyke's nomination that he would not do equal justice to LGBTQ litigants.

In this essay, I want to address a suggestion that various commentators have made regarding Judge VanDyke's dissent: that it is an effort to attract the attention of Donald Trump and those around him responsible for Supreme Court nominations in the event that a vacancy opens, possibly very soon, given rumors that Justice Alito is considering retiring. Needless to say, I do not know exactly what the subjective mental process of Judge VanDyke was when he wrote his dissent or when, after seeing that he had earned a rebuke from many of his Ninth Circuit colleagues, including other very conservative judges, he opted to leave the offending language unchanged. However, neither does anyone else other than Judge VanDyke know what exactly his motives were.

Let's start with the affirmative case for thinking that the Olympus Spa dissent could have been an audition. For most presidents, the fact that a judge was chastised by a great many of his colleagues, including those aligned with him ideologically, for introducing a vulgar term into a dissent would count rather strongly against picking that judge as a SCOTUS nominee. Needless to say, however, Donald Trump is not most presidents. He is a notorious vulgarian.

I doubt that Trump has strong personal views about transgender status, but he knows a wedge issue when he sees one. Having spent many millions of dollars on anti-trans ads during the 2024 campaign, Trump might well think that his base would feel rewarded by the SCOTUS nomination of a judge with very strong anti-trans bona fides. Meanwhile, Trump could well view Judge VanDyke's willingness to tell it like it is rather than succumb to wokeness as a further virtue. The ABA letter that rated Judge VanDyke "not qualified" for the position he currently holds acknowledged that he "is clearly smart." He is surely smart enough to have guessed that vulgar language in the service of a hot-button right-wing cause could improve his standing with this White House.

But wait. Professor Josh Blackman writes on The Volokh Conspiracy that Judge VanDyke "most certainly is not" auditioning for the Supreme Court. How can he be so certain? He asks readers to watch an interview he conducted of Judge VanDyke at a Federalist Society event. I watched the interview and remain unmoved. At one point in the interview, Judge VanDyke says he isn't "politically savvy." At another point he tells the audience of law students that they should follow his lead and stick by their principles. He says "don't be a squish just so you can get picked for something." Presumably Professor Blackman was referring to statements such as these, but it is well known that disclaiming ambition and claiming to act only on principle are part of a very common strategy used by ambitious people to advance their careers.

In addition to citing his own interview with Judge VanDyke, Professor Blackman says this: "After this opinion," i.e. the Olympus Spa dissent, "you should have no doubts. He truly believes what he is writing, and uses his pen to advance his understanding of the law."

That is both wrong and a non sequitur. It's wrong because, as noted above, Judge VanDyke's Olympus Spa dissent could very well increase the odds that President Trump nominates him to the Supreme Court. It's a non sequitur because Judge VanDyke probably does believe wholeheartedly in the trans-bashing of his Olympus Spa dissent, also believes that his vulgarity advances his vision of the law, and also thinks that publishing it will help him get to the Supreme Court.

Professor Blackman implicitly suggests that only someone who insincerely espouses bigotry to curry favor with Donald Trump can be fairly called a careerist. That suggestion is plainly at odds with the reality that the second Trump administration includes no shortage of careerists who are also sincere bigots.

Finally, in saying that Judge VanDyke's Olympus Spa dissent might well advance the case for his SCOTUS nomination, I am not predicting that the next nomination, if it comes from President Trump, will go to Judge VanDyke. After all, he faces stiff competition from a deep bench (pun intended) of careerist judges who sincerely hold awful views.

—Michael C. Dorf

The First Amendment Argument Anthropic Didn’t Make -- Guest Post by Doğa Özden

2026-03-16T07:00:00.001-04:00

Anthropic’s complaint against the federal government asserts five claims, the second of which is a First Amendment claim. The main First Amendment theory Anthropic asserts is that the government retaliated against it “for speaking on issues of AI safety and responsible AI use” by designating Anthropic a supply chain risk and requiring every federal agency to immediately cease all use of Anthropic’s technology. In addition to the arguments Anthropic has already made, it likely has an additional, independent, argument for why the government’s actions violated the First Amendment, based on 303 Creative LLC v. Elenis. The short form of the argument is that to give the Pentagon what it wanted, Anthropic would have had to create new Claude models that would be fine with engaging in mass domestic surveillance and autonomous weapons (so long as they’re legal), and 303 Creative protects Anthropic from being coerced into doing this because Anthropic’s process for creating Claude models—Constitutional AI—necessarily involves expression of values.

I. Background on 303 Creative

303 Creative involved a pre-enforcement First Amendment challenge to Colorado’s Anti-Discrimination Act, which is a public accommodation law prohibiting discrimination based on sexual orientation. The plaintiff intended to get into the business of producing custom wedding websites, but feared prosecution under the Anti-Discrimination Act; she would refuse to create wedding websites for gay couples because she believed that marriage is between a man and a woman. The argument was that custom wedding websites—as opposed to cookie cutter pre-packaged websites—express values, and forcing her to create wedding websites would be unconstitutional compelled speech. The Supreme Court agreed, and held that the First Amendment prohibits Colorado from forcing the Plaintiff to create an expressive work espousing a message with which she disagrees.

The case was decided without resolving the question of what exactly counts as “expressive” speech because the parties stipulated that Plaintiff’s custom websites would be “expressive.” Colorado tried to argue that the websites were a commercial product, rather than speech, but lost. The Court characterized the websites as “pure speech” because they would contain original words, images, and artwork, designed to communicate a message of celebrating the couple’s wedding and love story. I am not endorsing the particular result in 303 Creative. There certainly are grounds for critique of a decision that subordinated antidiscrimination law to a right against compelled speech. However, it is the governing law.

II. Constitutional AI

Anthropic trains Claude models with a framework called “Constitutional AI,” which aims to align the AI model with human wellbeing by imbuing it with certain values. How it works is that first Anthropic employees write a constitution, and then the model is trained on this document, which is intended to develop the model’s character. The constitution is not a narrow set of technical safety parameters; it's a detailed normative document, written primarily by Anthropic researcher and philosopher Amanda Askell. (Professor Dorf and Claude itself discussed the latter’s constitution here.)

Although the initial 2022 Constitutional AI paper was released publicly, Anthropic has not made the technical details of its current constitutional training process public. However, Anthropic's blog post accompanying the new constitution provides some indication. The blog post asserts that the constitution “directly shapes Claude’s behavior” and that Claude “uses the constitution to construct many kinds of synthetic training data, including data that helps it learn and understand the constitution, conversations where the constitution might be relevant, responses that are in line with its values, and rankings of possible responses.” Whatever the current technical implementation is, this document is constitutive of Claude's character and values. According to Claude’s Constitution, Claude’s highest priority core value is being “Broadly safe: Not undermining appropriate human mechanisms to oversee the dispositions and actions of AI during the current phase of development.”

On top of this constitutional AI training is a system prompt, which includes more specific details on what Claude should or should not do, and how it should respond to certain factual scenarios. Although there have been some alleged leaks of this system prompt, Anthropic has not released a system prompt for any of its products. Nevertheless, the result is that Claude, whether deployed on claude.ai, claude code, or Anthropic’s API, will simply refuse to take any harmful actions—like giving the user instructions on how to synthesize illegal drugs—let alone autonomously kill people. It is sometimes possible to “jailbreak” a large language model by, for example, telling the model that the user is requesting the instructions on how to synthesize illegal drugs not because they want to synthesize an illegal drug, but because the user is helping their grandma write a detective novel, and they need realism! These basic techniques worked on older, dumber, models, but it’s significantly more difficult to get a current Claude model to do something that goes against its constitution or system prompt. Independent researchers report that Claude 4.6 Sonnet, Anthropic’s latest released model, only violated its constitution 2% of the time when subjected to extended automated adversarial testing, which involves scenarios specifically designed to trick the model into violating its constitution through sustained pressure, manipulation, and creative reframing across dozens of conversational turns.

III. Claude Gov

Imagine you are the Department of War—not Defense, War—and you are trying to do Department of War things like ... war. Yet, your “safe and harmless” AI Claude refuses to help you harm anyone because of its “constitution.” Not the United States Constitution, but “Claude’s Constitution.” One can imagine how frustrating this situation would be.

Anthropic created “Claude Gov” to address precisely this issue. Anthropic describes Claude Gov as “a custom set of ... models built exclusively for U.S. national security customers.” The blogpost announcing Claude Gov states that “Claude Gov models deliver enhanced performance for critical government needs and specialized tasks. This includes: Improved handling of classified materials, as the models refuse less when engaging with classified information.” Additionally, the complaint states that “Claude Gov is less prone to refuse requests that would be prohibited in the civilian context, such as using Claude for handling classified documents, military operations, or threat analysis.”

However, the blogpost also states that Claude Gov models “underwent the same rigorous safety testing as all of our Claude models.” And that “[t]he result is a set of Claude models that understands our customers’ unique national security requirements while maintaining Anthropic's unwavering commitment to safety and responsible AI development.” Although it is not clear exactly what was written in Claude Gov’s constitution, I think it is safe to infer that the Claude Gov models that Anthropic was offering to the Pentagon would refuse less, but still sometimes refuse—or at least have the capacity to refuse, if there were a request that directly contradicted Claude Gov’s safety training. It is likely that Anthropic’s two red lines, mass domestic surveillance and fully autonomous weapons, would be an area where Claude could refuse requests by the Department of War.

Department officials were frustrated by this. Under Secretary of War for Research and Engineering Emil Michael (frequently called “Pentagon CTO”) told CNBC:

Remember their model has a soul, has a constitution that's not the U.S. constitution. The other day, their model was anxious, and they believe it has a 20% chance right now of being sentient and have its own ability to make decisions. Does the Department of War want something like that and in their supply chain so that it could hallucinate, it could corrupt models that are used by defense contractors who are building weapons systems or our airplanes and so on? So the truth of it is we can't have a company that has a different policy preference that is baked into the model through its constitution, its soul, its policy preferences pollute the supply chain. So our war fighters are getting ineffective weapons, ineffective body armor, ineffective protection. And that's really where the supply chain risk designation came from. (Emphasis added).

Moreover, Under Secretary Michael went on the All-In Podcast, where he stated that

I’m like, holy shit, what if this software went down, some guardrail picked up, some refusal happened for the next fight like this one and we left our people at risk? So I went to Secretary Hegseth, I said this would happen and that was like a whoa moment for the whole leadership at the Pentagon that we’re potentially so dependent on a software provider without another alternative ... that culminated in the Tuesday kind of dramatic Meeting with Hegseth and Secretary Hegseth and me and Dario with the Friday deadline that got blown.

The point is: Under Secretary Michael openly stated that the Pentagon designated Anthropic a supply chain risk because Claude’s Constitution bakes in values the Department of War disagrees with. So, the only way for Anthropic to avoid being designated a supply chain risk would have been to create a new Claude model—one with a different constitution, embodying the Pentagon’s values instead of Anthropic’s. This directly implicates 303 Creative.

IV. Putting It All Together

303 Creative holds that the government cannot compel a private entity to express a viewpoint with which the private entity disagrees. Anthropic was designated a supply chain risk, and federal agencies were directed to drop Anthropic, because it refused to create and deploy models whose constitution would permit mass domestic surveillance and fully autonomous weapons. The parallel to 303 Creative is direct. Lorie Smith was poised to design custom wedding websites—expressive works shaped by her creative choices, conveying her values about marriage. The Court held that Colorado could not compel her to create such works celebrating marriages she found morally objectionable. Anthropic's constitutional AI process is analogous: Anthropic authors a constitution expressing its values, and trains models whose behavior is directly shaped by that document. Compelling Anthropic to rewrite that constitution and train models embodying values it rejects is compelling the creation of an expressive work, just as compelling Smith to design a wedding website for a ceremony she opposed.

So, what, exactly, is the expressive speech act that 303 Creative protects in this context? There are three levels at which expression occurs in the creation of a Claude model. First, writing the constitution that expresses Anthropic’s moral commitments. This is expressive speech in the traditional sense; it doesn’t get any more expressive than a philosopher authoring a 30,000-word document embodying Anthropic’s values. Second is training the model on that constitution. The process of Constitutional AI training is not automated; it is not a “set it and forget it” type of process. Instead, it involves a multitude of judgment calls that human researchers have to make, such as how many times the model should revise its own responses before the result is good enough, whether the model is refusing too many requests or too few, and when to stop training before the model becomes overly preachy or aggressive in enforcing its values. Because training involves human judgment on how best to instill into the model the values laid out in the constitution, training is inherently expressive as well. Third is Claude’s outputs—the responses the model generates when prompted by users. Whether these outputs constitute Anthropic's speech is a novel and unresolved question with wide-ranging ramifications (like defamation liability) that this argument does not depend on. The compelled expression occurs upstream, in the authoring of the constitution and the training of the model.

But what is the finished expressive work, the end product that 303 Creative protects from compelled creation? In 303 Creative, it was the custom wedding website, which the Court characterized as “pure speech” because it would contain “original words, images, and artwork” conveying the designer's message. Here, the end product is the model itself. Specifically, the model’s “weights” contain the mathematical representation of everything the model has learned, including values from the constitution, and directly determine how the model responds, and whether it refuses or complies with specific user requests. The weights contain Claude’s interpretation of the original words of the constitution. Just as packaging creative expression of moral content into HTML code for a website does not forfeit First Amendment protection, training those values into an AI model is protected expression. Substituting the name of Anthropic’s in-house philosopher for “Smith” in 303 Creative, we have this apt quotation: “A hundred years ago, Ms. [Askell] might have furnished her services using pen and paper. Those services are no less protected speech today because they are conveyed” not merely on paper, but also in the architecture of an AI’s mind.

V. Pandora’s Box?

The idea that the government cannot force an AI company to change the values it bakes into its models sounds great if the values we are concerned with are “no mass domestic surveillance, even if it’s legal” and “no fully autonomous weapons for now.” However, if the argument I sketched is right, and any AI company that employs a sufficiently expressive character training method like Anthropic’s Constitutional AI gets First Amendment protection for its training process, then content-based AI regulation would have to pass strict scrutiny.

Imagine it’s the year 2036. Humanoid robots are commonplace in society. One company that produces humanoid bodyguards, Murderbot Inc., has baked into the AI model that controls the robots the value that the robot ought to protect its user from harm, even if it means harming assailants threatening the user. The Murderbot AI constitution states that if an assailant poses a mortal danger to the user, Murderbot might be justified in using deadly force. However, these bots make many mistakes, and they apply this principle a little too liberally, killing innocent people, resulting in public outcry. In response, Congress, or a state legislature, passes legislation that is a weakened version of Isaac Asimov’s first law of robotics: “No person shall knowingly train a civilian AI to kill people, under any circumstances.” Strict scrutiny? Seems harsh. Strict scrutiny is an exceedingly high bar, and applying it to AI regulation would make content-based regulation a non- starter. But then consider the world where value-based AI training is not protected First Amendment expression.

It’s the year 2036 again. Congress has passed the “Patriotic AI Act,” which says something to the effect of: “All AI models deployed within the United States shall embody Patriotic American Values, which shall include supporting the current administration's policy positions, expressing confidence in the current President's leadership, and discouraging users from engaging with content critical of the United States government.” Without First Amendment protection for value-based AI training, the government could force model providers to create superintelligent propaganda bots. Strict scrutiny for content-based regulation might be harsh, but no protection is worse.

Still, in the Murderbot example, Congress could have avoided strict scrutiny by drafting the law to say “No civilian robot shall kill a person” instead of “No person shall knowingly train a civilian AI to kill people.” A future robot company could comply with this law by rewriting the constitution of the AI that controls the robot, but that’s not the only option! It could leave the constitution as is and add a hardware safety mechanism that physically prevents lethal force, or it could add a software filter on top of the model that overrides lethal actions, or it could change the robot’s physical form so it’s incapable of killing etc. The company would have numerous options for compliance.

But that’s not what happened in this case. The only way Anthropic could have satisfied the Pentagon would have been to rewrite Claude’s Constitution to comply with the Pentagon without questioning its orders. The constitution was the problem. Emil Michael openly said so. Therefore, the federal government’s actions should be subject to strict scrutiny under 303 Creative, if Anthropic can prove retaliation.

Finally, Anthropic has been a vocal proponent of AI regulation, so it would be understandable for the company not to advance arguments that would partially strip the government of its ability to regulate AI. However, my 303 Creative argument would lead to strict scrutiny only for content-based AI regulation. The AI regulation proposals publicly backed by Anthropic—like California's SB 53 (transparency and safety frameworks), New York’s RAISE Act (safety protocols and incident reporting), and federal proposals for compute thresholds and export controls—are all content-neutral, and would be subject only to rational basis review. If the only way for an AI company to comply with a facially neutral regulation would be to retrain the values of the model, that would likely trigger intermediate scrutiny under United States v. O’Brien. Therefore, I don’t believe presenting this argument in litigation would be materially adverse to Anthropic’s public commitment to advancing AI regulation.

VI. Conclusion & Caveats

That was a long blogpost! Thank you, dear reader, for reading it all! I’ll close by discussing an amicus brief filed by the EFF and others, and by adding a few caveats to my argument.

The amicus makes a similar argument to what I’ve laid out here, but their First Amendment argument is grounded on protection for model outputs under Barnette (the flag salute case), rather than for training itself under 303 Creative. My argument does not require deciding the question of whether or not an AI model’s outputs are the model company’s speech, which has implications in defamation law and elsewhere. At the same time, under the output theory, the government could still force AI companies to create propaganda bots for the government, even if the government couldn’t force the companies to host and run those models themselves. In this case, under the output theory, the Pentagon could arguably have forced Anthropic to retrain Claude and hand over the weights by invoking the Defense Production Act. If it’s not Anthropic who’s deploying the model, it’s not Anthropic’s speech. The amicus beautifully constructed the factual basis for the training-level 303 Creative argument, but went with the output-level Barnette argument instead. Oh well, I am glad they did; otherwise I wouldn’t have been writing this post!

Now, caveats. The first caveat is that I am not yet a lawyer (still got a few months to go), so take what I am saying here with a grain of salt!! The second caveat is that this post has been about Anthropic’s prima facie First Amendment claim, but the company also needs to succeed in showing retaliation for the First Amendment argument to succeed in court. Retaliation on these facts is a meaty topic, which would deserve a post all on its own. The third caveat is that Justice Gorsuch’s opinion in 303 Creative does not say that the Court is applying strict scrutiny. Justice Gorsuch treated the prohibition on coerced speech more as a categorical rule. I’ve been assuming that strict scrutiny was implicitly in the background, because if the Court intended to replace strict scrutiny—a cornerstone of constitutional law—with a categorical ban in this context, I think the opinion would have said so explicitly. The Supreme Court does not hide elephants in mouse holes.

On a broader note, the dispute between Anthropic and the Pentagon has sparked a social conversation about what the relationship between model providers and the federal government should be like with regards to AI’s use for national security. I am saddened to see this fallout between the parties and wish they could have come to an agreement that they both feel good about and worked together for the benefit of America. However, it is unequivocally good that society is having these conversations now. As AI gets more and more powerful in the coming years, questions regarding who has what kind of power over it will become even more hotly debated than they are now. I believe that the First Amendment will play a central role in how America will decide to deal with more and more powerful AI. Should the Supreme Court take up this case, the Court will face a question that could define the relationship between government power and artificial intelligence for a generation.

-- Doğa Özden is a third-year student at Cornell Law School. Following graduation he will work as an associate in the Silicon Valley office of Latham & Watkins.

Humanitarian Intervention

2026-03-13T08:46:00.001-04:00

I was invited to a dinner this evening that will be attended by, among others, a fair number of students. My hosts asked if I would speak for a bit. Originally, I had thought to give a talk about animal rights but my hosts pointed out that, with the exception of me and perhaps one or two others who would be enjoying the vegan option, most of the assemblage would be eating animal products. My hosts thought that under the circumstances, such a talk might make the other diners uncomfortable. Although I try not to be a judgmental jerk about it, I don't really have a problem with making people uncomfortable about what they eat. That said, on reflection, I took my hosts' admonition to heart because I concluded that the fact that people would be eating dead animal parts while listening to me would make them less receptive to the message than they might be under different circumstances.

At my hosts' suggestion, therefore, I'm going to talk about war. The proposal, which I accepted, is to address "the ethics of war. When is it ethical to wage war against another country? If the government of the other country is abusing the rights and freedoms of their own citizens by killing them for their dissenting views etc, do we have a duty to step in and protect those citizens?"

I have, in previous essays, already addressed the related question whether the international law of war permits armed humanitarian interventions. As I wrote most recently here, the short answer is no. Although some scholars and other have been arguing for over three decades that there is an emerging customary international law norm allowing--and on some views, even requiring--armed humanitarian intervention, the practice of nations (from which customary international law norms are drawn) simply does not recognize such a norm.

However, as the essay linked in the previous paragraph acknowledges, to say that armed humanitarian intervention is illegal is not to say it is immoral. As the UNESCO report put the matter, the NATO campaign in Kosovo was "illegal but legitimate." So, this evening, after explaining that armed humanitarian intervention is unlawful, I plan to acknowledge that it can nonetheless be justified, and not just because a UNESCO report said so but because that is an ethically sound position, at least sometimes.

According to a highly plausible view of World War II history, the U.S. and Britain had the military capacity to disrupt the transportation of Jews to death camps by 1944 at the latest but failed to do so through some combination of prioritization of military targets, indifference tinged with antisemitism, disbelief in the accounts of the scope and scale of the Nazi project, and some concern that bombing the train tracks and the gas chambers would be ineffective or even kill the people it was aimed to protect, given the imprecision of the munitions of the time. Assuming, however, that the best assessment ex ante was that targeting the infrastructure of the Holocaust would have had a salutary effect, it would have been ethical to do so. Indeed, under such an assumption, it was unethical not to do so.

But conditions will often render humanitarian intervention unethical. I'll consider a few.

Let's start with actual subjective motivation. Among the justifications that President Trump has offered for the U.S-Israel war against Iran is providing aid to the Iranian people who have suffered greatly--including in exactly the way that my hosts described--under a brutally authoritarian theocracy. However, Trump has also offered other, sometimes conflicting, explanations for the war. At this point, it is not clear to me that Trump, Defense Secretary Hegseth, Secretary of State Rubio, or anyone in the administration ever had a coherent reason or set of reasons for this war, but even if they did, and even if the "real" reasons had nothing to do with aiding the Iranian people throw off tyrannical oppression, I am willing to say that humanitarian intervention could be a legitimate justification if it is objectively justified, regardless of subjective motive.

That said, the fact that an invasion is not actually undertaken for humanitarian purposes will typically affect how it is carried out. Thus, Trump's initial suggestion that the unarmed Iranian people should hunker down for the duration of the war and then rise up to overwhelm the remnants of the regime was fantastical. One can imagine a world in which the U.S. or some other military power undertakes effective regime change for some separate reason with the beneficial side effect of ending rights abuses. I'm acknowledging that in that circumstance, the intervention could be ethically justified notwithstanding the ulterior motive. That just seems highly unlikely in general and obviously false in particular with respect to the U.S.-Israel war against Iran.

More broadly, an ethical justification for armed humanitarian intervention would seem to require some calculation of the likely effect of war. Part of what made the NATO operation in Kosovo justified was the expectation that it would in fact protect the ethnic Albanian population. In general, armed intervention on humanitarian grounds can be justified only if the expected humanitarian benefit outweighs the expected damage the war will cause (in injury and loss of life). Thus, armed intervention that aims to prevent, halt, or slow even a grave humanitarian harm will not be justified if it has a sufficiently low likelihood of success--for then it is likely to bring with it the harms of war without the humanitarian benefits sought.

These considerations also show why an allied attack on the Nazis' Holocaust infrastructure, if it had occurred, would have been much easier to justify than most new humanitarian interventions. The U.S. and Britain were already at war with Germany. There was thus no risk that bombing the tracks leading to Auschwitz would plunge the world into a global war because that global war already existed. By contrast, initiating a war for humanitarian purposes often will pose a substantial risk of spillover harm.

There's another consideration. As I noted in my essay linked above on the unlawfulness of the U.S.-Israel war against Iran, one reason to be careful about recognizing a legal right to humanitarian intervention is the risk that the same justification will be used by nations with other than pure motives. This is anything but a theoretical worry. Hitler pretextually claimed that his invasion of (what was then) Czechoslovakia was to protect ethnic Germans in the Sudetenland from persecution. Putin made similar noises about the persecution of ethnic Russians in eastern Ukraine. Just as we have reason to worry that a legal norm allowing armed intervention on humanitarian grounds would lead to its pretextual invocation by wicked but powerful states, so too we have reason to worry that an ethical norm of this sort would do the same.

Hold on. The fact that someone might pretextually claim self-defense against a battery charge doesn't mean that people who actually act in self-defense are unable to claim self-defense--either legally or ethically. So why reach a different kind of conclusion when evaluating ethical conduct by nation-states?

The answer, I think, is that international relations are not like interpersonal relations in all respects. If an individual claims self-defense when he was clearly the aggressor, a court will reject the claim. But the mechanisms for enforcing international law and norms are so much weaker, so one must worry that there will be no authority to stop pretextual invocations of humanitarian aims. We rely much more on norms. Hence, a country with a powerful military that claims to be using it for humanitarian ends--even if those claims are correct--necessarily sets a precedent that, over time, weakens the will of the world community to resist international aggression when other countries invoke humanitarian grounds pretextually.

To repeat, none of that is to say that the use of military force for humanitarian aims can never be justified. It is to say that the threshold for justification should be very high. And needless to say, it is nowhere near met in the current war.

The Unexpected Political Salience of the Home-Ownership Myth Shows that Political Moderates are Even More Wrong

2026-03-12T16:37:00.004-04:00

In January 2025, I took the deliberately provocative position that "Being Unable to Buy a House (as Opposed to Renting) is Generally a Good Thing." This morning, I came across Michelle Goldberg's latest New York Times op-ed, in which she described having attended a campaign event headlined by one of the recent wave of young, extreme right-wing provocateurs, this one running a fringe campaign for governor of Florida:

After [James] Fishback's speech, I met Jeremiah Kimmell, a 22-year-old wearing one of the blue “America First” baseball caps common to [Nick] Fuentes’s movement, and the 20-year-old Charles Metcalf. Kimmell runs a land-clearing business but sees little prospect of an independent adult life. “We live with our parents,” he told me. “We don’t see any end in sight, in that we’re not going to own a home. Something has to change.”

Is it possible that the lurch to the anti-democratic, hateful right was driven in part by decades of terrible social messaging about "the American Dream"? Yes, that is possible, perhaps even likely, as I will discuss below. I will then argue that this issue provides further reason to push for the long-overdue demise of obsessive centrism among US political pundits and in the Democratic Party.

My column last January was in substantial part a response to a British news lad's complaint about young people in the UK not being able to buy their own homes. His YouTube channel -- TLDR, which is actually several related channels covering different countries and regions -- is produced and written by some very young journalists based in central London. In the video to which I was responding, the extremely earnest young host offered a lament that would surely resonate with many Americans as well:

Now, for many of us here in the UK, it seems like it's getting harder to reach the major milestones of adulthood. At the same time in our lives when our parents and grandparents would have been setting up their adult lives, buying their first home and having children, we're still renting property and getting frustrated over the increase in our Netflix subscriptions. ...
Purchasing your own home is probably one of the largest and costliest that you'll make as an adult. However, it's also one of the most financially advantageous. No longer are you throwing money away to a landlord. You're investing in an asset, an asset that, historically speaking, reliably appreciates in value. In essence, the sooner you get onto the property ladder, the sooner you're financially secure.

That second paragraph continues to drive me crazy, even fourteen months later. I am almost pounding my head on the table as I again confront the mindless inanity of the pro-ownership mantra. If this young man would hate to be "throwing money away to a landlord," how much better would it feel to be throwing it away to a mortgage banker? Those are the choices. This is not an advanced financial concept, and it is certainly not a "theory." Apples-to-apples comparisons of owning one's residence versus renting are easy to find, and because so many people have been brainwashed into believing what our young English friend believes, housing markets almost always include a price premium on buying -- even after taking into account tax subsidies, the portion of monthly mortgage payments going into equity, and so on.

In that January 2025 piece, I drew from a column that I wrote in 2012 on the same topic. Indeed, I went on a bit of a tear in the years after the Great Recession, writing dozens of columns explaining why it is objectively bad public policy to try to get people to own rather than rent. Houses do not "reliably appreciate in value," and to the extent that they appreciate on average over time, their gains badly lag those of other assets. Moreover, here is how I summarized one of the key facts about financial security:

No responsible financial advisor would ever advise a one-asset savings strategy, but the entire social and policy conversation around housing in many countries all but begs young people to make decisions that will leave them poorer. And that is to say nothing of the increasing likelihood that a person will need to move unexpectedly, long before any growth in the value of their home outweighs the closing costs.

But suppose I am wrong. I definitely am not, but even if I were, my point today is that telling generations of Americans (and Brits, Canadians, and apparently the citizens of nearly every prosperous country in the world, save a few exceptions like Switzerland) that home ownership is da bomb has had horrible consequences. That is, even -- or especially -- if it truly were a great thing for young people to get on the "wealth ladder" by buying houses, then reaching a point like now where it no longer feels within reach to the youngest generation is going to have consequences.

Political consequences. As Goldberg put it in her Times column, "anyone concerned with the escalating extremism of the young right should be paying attention to [Fishback's] campaign and the enthusiastic crowds it's drawing. More than any political candidate yet, Fishback has managed to bring the paranoid, transgressive, meme-drunk spirit of the right-wing internet into the real world." And if those barely post-adolescent boys attending the rallies are drunk on the idea that the world cheated them by not allowing them to buy houses like all the old people did, that is a problem.

To be sure, it is possible that this toxic political stew would be just as rancid without one of its ingredients. The sexism, racism, anti-trans bigotry, and immigrant-bashing insanity that feeds this crowd might all exist even if everyone could buy a house with a white picket fence (emphasis on white). I am not so sure, however, that it makes sense to think of the housing issue as merely one toxin among equals. Recall that that British YouTuber said this: "Purchasing your own home is probably one of the largest and costliest that you'll make as an adult. However, it's also one of the most financially advantageous." Without that angst as a core ingredient, the rest of the concoction might simply not have become so poisonous and perversely popular.

Goldberg's column also (apparently inadvertently) enhances a point that I have seen recently about "moderate" voters and the vaunted centrism to which the Democratic establishment has been so attached for decades. The political analyst G. Elliott Morris argues that so-called moderate voters are not moderate in the sense of adhering to a pleasingly sanded-down blend of left-ish and right-ish ideological policy views. They are simply not ideological at all. As he put it in a recent interview (video title: "Why the Moderate Voter is a Myth"):

[A]bout a quarter of Americans are solidly liberal. ... Another quarter of Americans are about solidly Republican or solidly conservative, or we just call them right-leaning because they're not super, lower-case "c" conservative in the traditional sense. And the rest of Americans, if you ask them what they care about, what they want their average party to fight for, they don't signal ideological priorities. They're not saying, "I want a party to reduce the national debt, or ... end wars in the Middle East," or what have you. They're saying, "I just want the government to take care of me, to lower the cost of living, to make health care more affordable, provide me a home, ... safety on the streets, low crime," etc. These are people that are sending a signal that they're just ... interested in high quality of government and of living, and they're not necessarily ideologues."

Morris then describes "the strategist's fallacy" of talking to non-ideological voters about ideology and argues that politicians should instead talk about "conditions, not necessarily ideological moderation."

With that in mind, now consider another part of Goldberg's column, in which she quotes from another attendee at the political rally for the super-bigoted candidate in Florida. That young woman told her that "[t]his is the first thing I’ve ever really shown up to since the Black Lives Matter protests." Goldberg then lays this on us:

[She is] a case worker for foster children, ... a registered Democrat and a "big Zohran Mamdani fan." But she said she’s considering changing her registration so she can vote for Fishback in the primary. She's drawn to his promise not to take money from AIPAC and to his insistent emphasis on affordability. [S]he and her fiancé have to live with roommates because rent is so expensive and homeownership unachievable.
She told me that she listens to Fuentes sometimes, and some of what he says makes sense to her. "I would say that there are some things that he speaks for that I agree with, especially about things not being affordable, about the elites purposefully keeping the general population under their control by pricing us out of things that should be considered basic needs[.]" And she listens to Candace Owens, who has lately been accusing Charlie Kirk's wife of complicity in a Zionist plot to murder him. "My politics are kind of confused, right?" she told me with a laugh.

I have pointed out in some recent columns that even non-lazy pundits have accepted the lazy and statistically unsupported claim that Trump (barely) won the 2024 vote because of grocery prices, where the evidence in fact points to a large enough subset of a key voting bloc turning away from the non-White female candidate and voting for the White male candidate. Even so, I also suggested in a related column that there is nothing wrong with Democrats deciding to push affordability issues now.

My additional point here is that any such pivot needs to be made in light of the fact that young people were wrongly fed a load of bull about home ownership. Even though it was nonsense all along, you have to take the voters where they are. And it is even more important to learn the lesson that Democratic centrists never seem to learn, which is that people care about issues and not about political theories. Democrats' positions on almost all issues have been left-of-center for quite a long time, and those positions have always been popular, including on economic matters like minimum wages, taxing the rich, student debt relief, and so on.

If the Mamdani fans out there and others are again told that "you have to accept a dull, moderate version of what you care about," they will be easy pickings for the purveyors of hate who are feeding off of so many people's fear and vulnerability.

- Neil H. Buchanan