Cornell University law professor Michael Dorf argues that in some contexts, consideration of states’ rights is relevant to the interpretation of federal statutes, but in other contexts—including the federal lawsuit over a transgender boy’s access to a boys’ restroom at school—principles of federalism are outweighed by other considerations. Dorf provides three examples of instances where federalism should play a role in the interpretation of federal statutes, and he explains why the transgender bathroom case differs from those instances.

Should Federalism Play a Role in the Interpretation of Civil Rights Laws?

Legal analysis and commentary from Justia.com with the columinst team of Vikram Amar, Neil Buchanan, Sherry Colb, John Dean, Michael Dorf, Joanna Grossman, Marci Hamilton, Julie Hilden, Joanne Mariner and Anita Ramasastry.

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Cornell law professor Michael C. Dorf comments on President Trump’s declaration of a national emergency after Congress denied him most of the funding he requested for a border wall. Dorf describes the legal framework that allows the president to do so even in the absence of an emergency and points out that combined actions of Congress, the courts, and the People have created this situation.

Complicity in Trump’s Bogus Emergency

Cornell law professor Michael C. Dorf comments on the recognition by the United States and some other constitutional democracies of Juan Guaidó as Venezuela’s legitimate leader pending new elections. Dorf points out that many countries suffer under incompetent, corrupt, and authoritarian leaders just as Venezuela did under Nicolás Maduro, yet constitutional democracies typically do not rally behind the ouster of those leaders. What makes Maduro’s case different?

Justifying External Support for Regime Change in Venezuela

Cornell law professor Michael C. Dorf comments on a case arising from the Trump administration’s decision to add a citizenship question to the 2020 census questionnaire—a case the US Supreme Court had on its calendar for oral arguments until late last week, when the federal district judge issued an opinion and enjoined the government from including the question. Despite the original issue presented in the case (a technical one about the scope of discovery) being made moot by the district court opinion, Dorf discusses the remaining and greater issue of how to discern and address illicit government motives.

How Should the Law Address Illicit Motives in the Age of Trump?

Cornell law professor Michael C. Dorf comments on Facebook’s global efforts to block hate speech and other offensive content and explains why formula-based policy necessarily makes very little sense. As Dorf explains, accurate determinations of hate speech require cultural understanding and evaluations of cases on an individual basis, but this approach also necessarily injects individual bias into those decisions. Thus, Facebook’s policy, while not ideal, may be but one of a handful of inadequate options.

Why Facebook’s Hate-Speech Policy Makes So Little Sense

Cornell law professor Michael C. Dorf comments on the recent ruling by a federal district judge in Texas striking down the entirety of the Affordable Care Act and argues that the judge relies on a highly unorthodox (and erroneous) interpretation of the doctrine of “severability.” As Dorf explains, there is a notable lack of judicial consensus as to what courts actually do when they declare laws unconstitutional, despite that the Supreme Court established its power of judicial review over two centuries ago in Marbury v. Madison (1803).

Should Federalism Play a Role in the Interpretation of Civil Rights Laws?

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