Legal Commentary - Michael Dorf Archive

SUPREME COURT 4 - CONGRESS 0: HOW THE COURT HAS REJECTED CONGRESS'S VIEW OF CIVIL RIGHTS IN FOUR RECENT CASES
FindLaw columnist, Columbia Law School Vice Dean and professor, and author Michael Dorf analyzes and disputes the Supreme Court majority's interpretation of the Fourteenth Amendment (which contains both Due Process and Equal Protection Clauses) in four recent cases. As Dorf explains, Section Five of the Amendment provides that "Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Nevertheless, Dorf contends, the Court has repeatedly struck down federal legislation attempting to enforce the Fourteenth Amendment by, for example, ensuring equality regardless of age or disability. Dorf argues that, given the clear language and history of Section 5, the Court should stop privileging its own Fourteenth Amendment interpretations over those of Congress.
Wednesday, Mar. 21, 2001

CLARENCE THOMAS: NOT A SCALIA CLONE
THOMAS'S CHALLENGE TO THE REHNQUIST COURT'S VISION OF REPRESENTATIVE GOVERNMENT
FindLaw columnist, Columbia law school Vice Dean and professor, and author Michael Dorf takes issue with the common view that Supreme Court Justice Clarence Thomas is merely a "Scalia clone." Dorf notes that on fundamental issues relating to the nature of representative government, Thomas has expressed a unique view that distinguishes him from every other member of the Court. Under that view, Dorf explains, state legislatures should be able to exert substantial control over members of Congress, and members of Congress should not be able to delegate their responsibility to federal administrative agencies.
Tuesday, Mar. 06, 2001

THE SUPREME COURT CASE THAT PITS FREE SPEECH AGAINST CHURCH-STATE SEPARATION
FindLaw columnist and Columbia law school Vice Dean and professor Michael Dorf comments on the Good News Supreme Court case that will be argued next week -- which raises the question whether public schools must allow religious organizations to use its classrooms after school if it allows secular organizations to do so. The case, Professor Dorf notes, puts the Court in treacherous waters, requiring it to balance two important principles: that the government cannot discriminate on the basis of viewpoint, and that government cannot endorse religion. Professor Dorf argues that the Court should steer a middle course, allowing this issue to be resolved locally, by schools themselves.
Wednesday, Feb. 21, 2001

A CONTRADICTION BETWEEN THE BUSH POLICIES ON ABORTION AND FAITH- BASED SOCIAL SERVICES?
FindLaw columnist and Columbia Vice Dean and law professor Michael Dorf examines a contradiction between two Bush administration policies. The administration, Dorf notes, believes that for the government to give money to organizations that, among other things, perform abortions is necessarily the same as subsidizing abortion; that is why the President, through an executive order, has cut off such funding. But the administration also believes that for the government to give money to a organization that, among other things, performs religious activities is not necessarily the same as subsidizing religion (and thus does not violate the Establishment Clause). Can these two positions be reconciled? Professor Dorf explains the issues they raise, and why these issues troubled Jefferson, too.
Wednesday, Feb. 07, 2001

ASHCROFT, LIEBERMAN, AND THE ROLE OF RELIGION IN GOVERNMENT DECISIONMAKING
Findlaw columnist and Columbia Law School Vice Dean and professor Michael Dorf considers what role religious beliefs should have in legislative and executive decisionmaking. What should we make of Senator Lieberman's pronouncement that there can be no morality without religion? And should we be troubled by critics' suggestion that John Ashcroft's religious beliefs could influence his enforcement priorities as Attorney General? Dorf answers these questions, and also puts forth a general analysis of when, under our constitutional system, religious beliefs may, and may not, motivate government decisions.
Wednesday, Jan. 24, 2001

A REPLY TO JOANNE MARINER'S PIECE ON NGUYEN, AND A CLARIFICATION OF MY EARLIER PIECE
Columbia Law School Vice Dean and Professor Michael C. Dorf, a FindLaw columnist, continues the discussion in Writ of the Supreme Court's Nguyen case. Nguyen raises the question of whether a federal statute involving the transmission of citizenship to children born to American citizens abroad, which treats American mothers differently from American fathers, illegally discriminates on the basis of sex. In this reply, Professor Dorf clarifies his earlier analysis of Nguyen, and responds to Joanne Mariner's points concerning foreign countries' law on transmission of citizenship, and the relevance of that law to Nguyen.
Friday, Jan. 12, 2001

SEX DISCRIMINATION AT OUR BORDERS? THE COURT'S NGUYEN CASE - PART I
In Part One of a two-part series on the Supreme Court's Nguyen case, both parts of which appear simulataneously in Writ, Findlaw columnist and Columbia Vice Dean and law professor Michael C. Dorf discusses Nguyen's equal protection issue. As Professor Dorf explains, Nguyen raises the question whether the citizenship of children born out of wedlock in foreign countries to a U.S. citizen and a foreign national may constitutionally be determined in part by the gender of their U.S. citizen parent.
Wednesday, Jan. 10, 2001

SEX DISCRIMINATION AT OUR BORDERS? THE COURT'S NGUYEN CASE - PART II
In Part Two of a two-part series on the Supreme Court's Nguyen case, both parts of which appear simulataneously in Writ, Findlaw columnist and Columbia Vice Dean and law professor Michael C. Dorf discusses Nguyen's plenary power issue. Professor Dorf questions both the logic and the historical pedigree of the oft-cited legal proposition that Congress has plenary power -- unconstrained even by the Bill of Rights -- over immigration and naturalization issues.
Wednesday, Jan. 10, 2001

BUSH V. GORE DOES NOT UNDERMINE, BUT PROVES, THE DISTINCTION BETWEEN LAW AND POLITICS
FindLaw columnist, Columbia Vice Dean, law professor, and author Michael Dorf considers the larger implications of the claim that the Supreme Court's recent Gore v. Bush decision, which convinced Vice President Gore to concede, was partisan. If we believe this claim, should we also believe that any distinction between law and politics is illusory? On the contrary, Professor Dorf argues, the recent decision only underlines this important distinction.
Wednesday, Dec. 27, 2000

THE SUPREME COURT'S BAIT AND SWITCH
Columbia Law School Vice-Dean and professor Michael C. Dorf, a FindLaw Columnist, explains why the Supreme Court's two Gore v. Bush decisions were, in his view, themselves the reason that completing a Florida statewide recount by December 12 was rendered impossible.
Friday, Dec. 15, 2000