Friday, September 20, 2019

Appeasing Trump on Wall Funding Will Lead to More Hostage Taking

by Neil H. Buchanan

The news cycle has long since moved on from Donald Trump's false national emergency declaration in February, which he used to take funds that had been appropriated for other purposes and instead redirect them to build his pointless and wasteful wall.  That issue, however, might be about to come back into the spotlight.

There was a bit of interest over the summer in a terrible decision by Trump's Five Enablers on the Supreme Court (whom I will refer to as T5E, because it is too onerous to try to come up with different ways of saying "hyper-conservatives who were put in place through various forms of once-unthinkable political dirty tricks and who now are helping to complete the rightwing takeover of the country, democracy be damned"), who allowed Trump to redirect funds to build parts of the wall while a case is pending to determine whether the redirection of funds is permitted under the relevant statute in the first place.

As Professor Dorf explained in a column at the time, T5E came up with an absurd reading of what counts as "irreparable injury" in the context of injunctions: "Perhaps ... five justices of the Supreme Court think that the emergency justifying extraordinary relief from the Supreme Court is an urgent need to build Trump's wall."  That is, not building the wall is itself the injury that Trump will suffer while waiting to find out whether it is legal to build his wall at all.

As I explained in a followup to Professor Dorf's column, T5E could have simply declared that the issue was non-justiciable as a political question, saying that Congress's failure to override Trump's veto of Congress's cancellation of Trump's emergency declaration (stay with me here) was all that the Constitution requires and nothing more.  That would have eviscerated the entire concept of judicial review of every dispute between the political branches, because the failure by Congress to stop the President would be viewed as sufficient proof that the system is working, every time.  Instead, T5E mangled the law of injunctions, which I argued might be worse — or, strangely, perhaps somehow better — than the alternative.

Now, however, the picture is becoming a bit clearer in terms of how the immediate politics will play out on the wall-funding ploy, and it has nothing directly to do with the Supreme Court at all.  We are, in fact, about to enter a new version of old-fashioned Republican hostage-taking in the budgetary realm.  And if we thought that it was ugly before Trump came along, this will be worse.

Wednesday, September 18, 2019

Trump's Planned Revocation of California's Clean Air Authority is Illegal

by Michael C. Dorf

A provision of the Clean Air Act requires the EPA Administrator to waive federal regulatory authority over vehicle emissions for states that wish to enforce their own standards if those standards are "at least as protective of public health and welfare as applicable Federal standards" and necessary "to meet compelling and extraordinary conditions." The waiver provision only applies to states that regulated pre-March 30, 1966 or to states that adopt the standards of such states.

As nearly all readers of this essay undoubtedly realize, in practice that means that California and states that adopt California's standards regulate air pollution more strictly than does the federal government. Various versions of the waiver for California and other states that voluntarily choose to participate have been in place for decades, under both Republican and Democratic administrations. But Donald Trump and EPA Administrator Andrew Wheeler find clean air threatening, so they plan to revoke California's waiver.

California Governor Gavin Newsom and state AG Xavier Becerra responded to the proposal by announcing their intention to sue. Here I shall explain why they have a good chance of succeeding.

Mere Pretext, Illicit Motive, and a Proposed New Level of "Super-Strict Scrutiny"

by Michael C. Dorf

In my latest Verdict column, I discuss the recent announcement by EPA Administrator Andrew Wheeler of a new initiative to reduce government-funded and government-mandated testing of chemicals on animals. I consider objections of environmental and public health groups. I say these groups have good reasons to question the motives of Wheeler and the Trump administration, given their record on environmental protection more generally. Perhaps Wheeler and Trump do not care about reducing animal use and suffering but are only using animal protection as a pretext to deregulate the chemical industry. I conclude that while the subjective motives of Wheeler and Trump provide a reason to take a very close look at whether the policy is justified, after taking that look, the policy should be supported.

In the column, I distinguish between two sorts of bad motives. (1) Merely pretextual motives might be bad in a policy sense but not inherently illicit. Deregulation is an example. Environmentalists like me might think that any particular program that is justified in terms of something else (like animal wellbeing) is simply a pretext for deregulation that is on-net harmful, but we would not say that deregulation is inherently illegitimate. (2) Some other motives are inherently illicit. Here I have in mind various forms of animus that constitutional and statutory law single out as presumptively impermissible. Standard examples include race, national origin, race, sex, sexual orientation, gender identity, and others. There are rare circumstances in which classifications based on one or another of these grounds is permissible, but maybe policies rooted in animus on such grounds ought never to be permissible.

In the balance of this essay, I want to explore how the law does and should distinguish between what I'll call mere pretext and illicit motive.

Tuesday, September 17, 2019

Anti-Tax Populism versus the Actual Boston Tea Party (and History in General)

by Neil H. Buchanan

This past weekend, I was in Boston for the first time in a few years.  Because I had never gone to any of the local tourist attractions during the ten years that I lived there, my brother and I decided to go to a few of the Revolutionary War-era sites that are scattered around the area.  I was not expecting to end up with fodder for a column here on Dorf on Law, but I guess this proves that I am never truly off the clock.

In any case, I found it interesting to compare and combine the information provided at two historic sites.  The Boston Tea Party site includes a replica of one of the merchant ships involved in that historic moment, which was included as part of a guided tour of an onsite museum/tourist attraction.  A few miles away, the Bunker Hill site in Charlestown included a demonstration of musket firing along with narrated information about the battle there in 1775.

As I will explain below, there is an interesting difference between the way the two historic sites treat the supposedly anti-tax message of the American Revolution.  But even taking those differences into account, the overall conclusion is that modern conservatives have (deliberately or not -- but probably deliberately) mangled American history in the service of their present-day reactionary agenda.

Monday, September 16, 2019

Joe Biden, Hipster

 by Michael C. Dorf

"It's not [that poor parents] don't want to help. They don't — they don't know quite what to do. Play the radio, make sure the television — excuse me, make sure you have the record player on at night, the — the — make sure that kids hear words. A kid coming from a very poor school — a very poor background will hear 4 million words fewer spoken by the time they get there." -- former Vice President Joe Biden at the Sep 12, 2019 Houston Democratic Presidential Debate in response to the question "what responsibility do you think that Americans need to take to repair the legacy of slavery in our country?".

Hey America, it's me, Joe Biden, Uncle Joe as a lot of the young folks call me. So listen, I've been reading where people say I'm out of touch, but the truth is I'm only a hair older than Bernie and uhm, the Senator from, uhm, the woman from, my friend . . . Elizabeth! . . . and of course Donald B. Trump.

What a bunch of malarkey. I'd beat any of them in a foot race, a game of darts, or one of those electronic measuring fitness thingies on that what is it called? Wii consoles.

So anyway, I read somewhere they're saying that no one uses record players anymore and this means that I'm not ready to lead America into the 25th century. That's double malarkey. Hippies, excuse me, hip stars, hip stirs, yes hipsters have record players. Or as we called them when I was growing up as a white working class boy in Scranton, phonographs.

Friday, September 13, 2019

Why Are Big Businesses' Executives So Awful Except When They're Not?

by Neil H. Buchanan

When I linked to The Washington Post's website moments ago, a bright red CNN-like banner above the name of the newspaper announced:


The linked article's sub-headline reads: "Faced with pressure to curtail suspicious opioid shipments, an alliance fought back with every weapon at its disposal."

Another day, another example of grotesque corporate greed and soullessness.  There is a reason that Big Pharma has joined Big Banks, Big Airlines and the more general Big Business as bogeymen for any American with even a mild dollop of populist sentiments.

And all of those Big institutions, in turn, have been responsible for some truly awful things, most especially including a sustained and highly successful political attack on labor unions, which led to companies underpaying workers and backing (and largely writing) laws that enable various strategies to deny benefits and so on.  Epic inequality did not come out of nowhere.

I say all of this to make clear that I do not have a soft spot in my heart for large corporations.  I am, however, interested today in the phenomenon of big businesses occasionally doing surprisingly positive and even progressive things, the most recent example having to do with guns.

Thursday, September 12, 2019

The Myth of the College or University Professor Uninterested in Teaching

by Michael C. Dorf

From time to time I hear from former students. Whether they are reporting on their successes (or much less frequently, their challenges), seeking a reference for a job, or asking for my advice on a case on which they're working, I'm almost always glad to hear from them--although my policy with respect to advice on cases is to help only with matters that they are handling pro bono and then only if they've cleared my involvement with the client and/or the lead attorney. Occasionally, a student will write a simple note of thanks, which is invariably gratifying. Sometimes the note of thanks is a backhanded compliment, as in "I'm surprised that something I learned in your class turns out to be useful in practice."

Very occasionally I receive a note like the one I was incredibly gratified and humbled to receive last week, from a recent graduate just generally thanking me for my guidance. When that sort of thing happens, I usually feel some regret at not having done the same for the teachers and mentors who were instrumental in my own intellectual and professional development. Because they are no longer with us, I think in particular of Dan Meltzer, whose Federal Courts class thirty years ago influences mine just about every day, and Judge Stephen Reinhardt, who taught me that anything worth writing is worth rewriting ten or twenty times. I wish I had been more gushing in my thanks when they were alive.

I was extremely fortunate to have been taught by great scholars who were also great teachers, people like Bernard Bailyn, Larry Tribe, Robert Nozick, Stanley Hoffman, and Judith Shklar. I also took courses from lesser-known scholars and sections with grad students just getting started who were terrific instructors. Whatever skill I have as a writer I owe chiefly to my seventh and eighth grade English teachers (Ms. Green-Lee and Ms. Petersen, whose first names I don't recall and may never have known). I also had some not-great teachers, including some who were renowned scholars.

My own experience as a student turns out to be fairly typical. I had great teachers who were also great scholars. I had not-so-great teachers who were great scholars. I had great teachers who were not-so-great scholars or not scholars at all. And I had not-so-great teachers who were not scholars or not-so-great scholars. There was for me, as in general, no correlation between teaching and scholarly acumen.

Wednesday, September 11, 2019

Bolton Was Awful; His Successor Could Be Worse

by Michael C. Dorf

What should a reasonable person think about the departure of John Bolton as National Security Adviser? In just about any other administration, it would be very welcome news. Bolton is a Strangelovian hawk who learned nothing from the US misadventure in Iraq that he and others of his ilk promoted. Trump reportedly fired him (or was at least happy to see him go) for the right reason: Bolton was a source of resistance to one of Trump's few sensible impulses--his preference for diplomacy over force in foreign affairs.

And yet . . . Bolton probably provided a useful check on Trump's not-at-all-sensible foreign-policy impulses: his emphasis on showmanship over substance; his elevation of personal relations with foreign leaders over details; his embrace of authoritarians at the expense of liberal democratic values and human rights; and his desperation to "make a deal" so that he can claim victory even when the deal at hand is a bad one or at best a worse version of the prior status quo that Trump impetuously undermined.