Friday, February 03, 2023

How Might We Make Britain (and America) Great Again?

by Neil H. Buchanan

The UK's many problems have become too obvious for even the most obtuse anglophiles to ignore or deny.  That country's post-Brexit meltdown, which has (among many other things) renewed the possibility of Scotland declaring independence -- Sexit, it seems -- continues to get even worse, with the empire on which the sun once never set now seeing an acceleration of its long, agonizing decline.

In yesterday's column here on Dorf on Law, I asked whether the US or the UK will be the first to fully implode, economically and politically.  I acknowledged that the Brits have a significant head start on the Americans in terms of frittering away their many advantages, having begun their decline in 1945 (at the very latest) and showing no signs of rejuvenation at any time since then.  On the other hand, the US's particular pathologies -- most obviously the chaos that Republicans are unleashing via debt-ceiling-based threats of Armageddon, although in fact it all comes down to our constitutional infirmities, such as a Supreme Court that laughs off gerrymandering -- might allow us to speed past our former colonial overlords on the highway to hell.

Moving from predictions of doom to the possibility of changing our fates, what might be done to stop all of this?  A brief conversation with a British colleague earlier today sparked some thoughts.  A possible alternative headline to this column captures the basic idea: "National Renewal and Soaking the Rich: What Must Be Done to Reinvest in Our Future?"

Thursday, February 02, 2023

Can the US Best the UK in the Art of Self-Destruction?

by Neil H. Buchanan

Russia, emerging from the ashes of the Soviet empire, was until less than a year ago thought to be a world power in its own right, with the invasion of Ukraine to be the first in a series of assuredly unstoppable steps to returning itself to the status of something like an imperial power.  On the other hand, China's post-Maoist history is a mixture of impressive advances and setbacks.  Turning more than 300 million rural peasants into middle-class city dwellers is, after all, almost incomprehensible in its scope.  But perhaps its most consequential setback, as we recently learned, was not caused by a singularly bad decision (like Vladimir Putin starting a land war in Europe).  There is now, instead, the sudden recognition that the country has badly mishandled its population policies for the last half century, with the result that there is now an "age bomb" threatening the country's still-unknowable future.

The colonial empires of the various European powers had all petered out by roughly 1960, with only the most ridiculous remnants remaining.  For example, I have been spending the last month in the Netherlands, which is formally the Kingdom of the Netherlands, consisting of Aruba, Curaçao, the Netherlands and Sint Maarten.  There is a royal family, but the king has actually piloted commercial jets incognito.  (I am not kidding.)  New Amsterdam (the city, not the now-canceled TV series or the Manhattan brewpub) was a long, long time ago.  Last semester, I was in Austria, which does not even hold onto any remains of the Austrian or Austrian-Hungarian Empires.  (It does have awesomely beautiful architectural grandeur that the country is maintaining very well, however.)  France?  Spain?  Portugal?  Sweden?  Denmark?  Germany/Prussia?  Italy?  Please.

I mention these recent and not-so-recent powers not because they are my focus today, but because I want to think about the two countries that have undeniably been global superpowers within the lifetimes of at least the oldest people alive today, and for much longer than that.  The UK (technically the United Kingdom of Great Britain and Northern Ireland) and the US (the United States of America -- USA, USA, USA!!) are the two most recent global hegemons.  In both countries, things are not going well, and the trends all point in the wrong direction.

Why are both once-great powers now in such a bad way?  And which one will flame out more ignominiously or spectacularly?  In this competition that neither country should want to win, both the UK and the US show plenty of signs of losing by winning.

Wednesday, February 01, 2023

Text, History, and Tradition in the 2021-2022 Term: A Response to Professors Barnett and Solum

 By Eric Segall

The 2021-2022 Supreme Court term was one of the most important in American history. In Dobbs v. Jackson Women's Health, the justices returned the issue of abortion completely to the states (and potentially Congress). In New Yok State Pistol & Rifle Ass's., v. Bruen, the Court substantially limited the ability of states to pass meaningful gun control laws. And in Carson v. Makin and Kennedy v. Bremerton School Dist., the justices further weaponized the free exercise clause as a restriction on the states while further limiting the reach of the establishment clause. 

Constitutional law scholars across the ideological spectrum have been trying over the last seven months to make sense of these decisions and how they relate to originalism and the use of text, history, and tradition in constitutional law. One such effort is a recent article by two of the country's most prominent academic originalists--Professors Randy Barnett and Lawrence Solum. Their article, "Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition," is a complex and provocative assessment of three of the cases discussed above (they leave out Carson), as well as the authors' suggestions for how best to incorporate history and tradition into originalist judicial decision-making. There is little doubt this article will be widely-read and will constitute a major contribution to our academic debates over originalism. The authors posted the paper on SSRN just a few days ago and it already has over 1000 downloads.

Tuesday, January 31, 2023

Who Says the President Should "Invoke" the Fourteenth Amendment?

by Michael C. Dorf

The approach of debt ceiling doomsday has provided Professor Buchanan and me with further opportunities to elaborate on our "least unconstitutional option" approach. We are making some new points, but much of what we have to say now simply aims to clarify or popularize our prior academic writing--as in my recent op-ed in The Boston Globe. Today's essay will do a little of both: (1)  clarify a prior point; and (2) offer a set of new observations.

In addition to our own new writings, we find that journalists have also taken an interest in our work. Sometimes they do so without contacting us, as Jamelle Bouie did, citing us in this excellent January 20 essay in the NY Times. Other journalists may cite our prior work but also wish to talk to one of us, as reporter Jeff Stein did for this Washington Post article over the past weekend. I was very grateful to Mr. Stein for giving me the opportunity, after we talked, to review and edit the quotations he attributed to me based on our conversation.

I was also grateful to Mr. Stein for really understanding our position. Often when I talk to reporters, I must spend some substantial portion of the conversation explaining how the Buchanan/Dorf view differs from others with which they have conflated it. One of the most common assumptions I must dislodge in these discussions is that the Buchanan/Dorf position would have the President "invoke the Fourteenth Amendment."

Here I'll explain what's wrong with that assumption. I'll then turn to my new observations--involving others who are actually invoking the Fourteenth Amendment.

Monday, January 30, 2023

A Few Reflections on the Horrifying Police Murder of Tyre Nichols

by Michael C. Dorf

Along with millions of other Americans, I was horrified and sickened by the police murder of Tyre Nichols. I am also somewhat in awe of his mother and family for how they have handled this devastating loss--promoting the public good even while experiencing unimaginable grief. I don't claim to have any special insight, but I also don't think it would be appropriate to say nothing about this incident. Accordingly, I offer three observations regarding: (1) traffic stops; (2) excessive force; and (3) race.

Friday, January 27, 2023

Would it Even Be Possible to "Prioritize" When Republicans Create a Debt Ceiling Crisis?

by Neil H. Buchanan

The public discussion of the debt ceiling crisis is reverting to a slow burn, now that everyone (and I do mean apparently everyone) has offered their hot take on last week's report that the US has again hit the formal debt ceiling.  That was both big news and a non-event, the former because of course it is a very big deal that Republicans have made it clear that they truly are willing to shoot the hostages this time, the latter because the real drop-dead date is not when we hit the ceiling but when Treasury exhausts the (misleadingly named and revealingly absurd) "extraordinary measures" that a long-ago Congress made available for these situations.

With the heat temporarily turned down, it seems worth taking a moment to address an issue that I mentioned briefly in a column last week: What is wrong with the possibility of "prioritization"?  Specifically, if President Biden soon finds himself on the drop-dead date without a deal to increase/suspend/repeal the debt ceiling, would it be possible for him to ignore the Buchanan-Dorf advice of issuing new debt in order to pay all of the bills (which we have long called "the least unconstitutional option") and instead pick and choose which bills to refuse pay in full and on time?

I am not asking whether such a move would be constitutional or even a good idea, because it is obviously neither of those things.  I am asking whether it is possible.  It is not -- or, more accurately, even if it is logistically possible, it is legally untenable as well as politically suicidal.  Why?  Glad you asked.

Thursday, January 26, 2023

Is New York's Recreational Marijuana Law the Best Way to Compensate People Unjustly Harmed by the War on Drugs?

 by Michael C. Dorf

Just before the new year and almost two years after the passage of the law permitting the sale of recreational marijuana in New York Statethe first dispensary in the state opened for business in lower Manhattan. I expect that eventually cannabis dispensaries will become fairly common in New York State, but so far the rollout has been quite slow. Meanwhile, the combination of decriminalization of possession and the dearth of legal dispensaries has led to what I imagine is at least a temporary flourishing of the illegal marijuana distribution business: increased demand from New Yorkers who might have been deterred from purchasing marijuana by the old enforcement regime will have been met by marijuana dealers operating outside the law.

In the long run, however, one would expect that the illegal market will shrink once the legal market expands. How much it shrinks depends on a number of factors. Municipalities may opt out of permitting dispensaries (thus relegating marijuana buyers in those places either to traveling substantial distances to purchase from legal dispensaries or to purchasing locally from illegal sellers). Even when a municipality does not opt out entirely, it can register objections to particular dispensaries. Meanwhile, in New York, as in other states, marijuana buyers are likely to be sensitive to perceived quality differences and price differences between what's available legally versus illegally. New York's 21.5% tax on legal sales is lower than in some other states but hardly trivial. Further, dispensary operators have substantially higher overhead costs than illegal dealers do. Accordingly, price-sensitive marijuana purchasers might prefer to take the risk of buying from illegal sellers even after dispensaries become more widespread. And state law forbids dispensaries to sell to people under the age of 21, some of whom will continue to buy their weed from illegal sellers.

Accordingly, at some point the market for marijuana in New York will equilibrate with a mix of state-licensed and illegal sellers. So why is it taking so long? A big part of the answer is that New York doesn't allow just anyone to open a dispensary. Among other things, the selection criteria for running a dispensary set forth in the regulations require that "justice involved" individuals have a controlling interest in the business. Someone is "justice involved" if they or a close relative were convicted of a marijuana offense before the enactment of recreational marijuana legalization. Non-profits that serve the public interest in various ways defined by the statute and regs can also operate dispensaries, but the NY law, as written and implemented, gives a preference to people who were caught up in the war on drugs. Is that legal? Is it sensible? Let's consider.

Wednesday, January 25, 2023

Of Dad, Death, and Dying With Dignity (Or the Lack Thereof)

 By Eric Segall

My Father Maurice Segall died a little over a week ago in the middle of the night in his sleep at the age of 93. Tragically, that was the only peace my father found over the last few months of his life. His death has been very difficult for all of his family but I wanted to write this blog post because of what I saw towards the end of his life. 

Tuesday, January 24, 2023

The Debt and the Debt Ceiling Have Virtually Nothing to do with Each Other

by Neil H. Buchanan

One of the many, many problems with the current discussion surrounding the Republicans' renewed threats to take us all hostage via the debt ceiling is that it invites everyone to spout off about anything that comes to their minds about debt, deficits, and spending.  These things have virtually (and to be clear, I mean as close as possible to literally) nothing to do with each other.

As I discussed in a column last week, people conflate government shutdowns with a possible debt default, which is also deeply problematic.  What makes the "I'm just gonna say whatever comes into my head about government and money" response especially annoying, however, is that it opens up an unfiltered fire hose of statements based on confused thinking, uninformed priors, and an inability to separate the past from the present.  Please allow me to illustrate.

Monday, January 23, 2023

SCOTUS Leak Investigation and the First Amendment

by Michael C. Dorf

Much of the public discussion of the inconclusive Marshal's Report of the investigation into last year's leak of the draft opinion in Dobbs has focused on a question that raises doubts about its thoroughness and fairness: why were the Justices not subject to the same requirements--such as signing affidavits--as law clerks and other Court personnel?

Marshal Gail A. Curley, who headed the investigation, stated in response to this question that she "spoke with each of the Justices, several on multiple occasions" and "followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits."

Maybe that's all there is to it, but given the status of the Marshal relative to the Justices versus her status relative to other Court personnel, it's also possible that she was predisposed not to push too hard to find leads that might implicate a Justice. 

I don't have much to add to this line of inquiry. Hence, I'll focus today's essay on leaks as such. Although the Court's statement introducing the Marshal's Report describes the Dobbs leak as "a grave assault on the judicial process," the Court's precedents regarding unauthorized disclosure of information suggest a more ambivalent position.