Friday, June 05, 2020

Good News? Skeptically Assessing the Claim That 'the System' Will Force Trump to Leave Peacefully

by Neil H. Buchanan

Will Donald Trump ever leave office, either because he loses this Fall or because his second term ends in January 2025 (and the Constitution has not been amended in the meantime to allow a third term)?  I am among those who have been frantically warning that the answer is no, that Trump will simply refuse to leave office.

My most recent Verdict column explains that there might be nothing that we can do about this.  Wednesday's parade of silence from Republican U.S. Senators, who were asked about Trump's order for security forces to violently push peaceful protesters out of Trump's path to a photo op, certainly supports my assertion on Verdict that these senators would piously refuse even to entertain questions about a Trump coup in advance.  "I will not dignify such an outrageous question with an answer!"

The two plausible non-outrageous and non-dangerous scenarios in which Trump stays in office next year are: (1) Trump is declared the winner of the election, and Democrats decide not to force any possible claims of voter suppression or election fraud; (2) Trump is declared the winner and the Democrats aggressively challenge that declaration, but they lose in the courts and then accept that result.

If Trump is declared the loser of the election, or if the courts rule that he should have been declared the loser, then my prediction that Trump will refuse to leave and that Republicans will abet him would be wrong under two further scenarios: (1) Trump tries to stay in office, but Republicans -- finally facing a non-hypothetical constitutional crisis -- stop him; or (2) Trump decides not to try to stay in office, choosing to forgo false claims of voter fraud and all that, instead quietly packing up and going to Mar-a-Lago.

Clearly, I think that that last possibility is now hilariously, horrifyingly impossible to imagine.  Republicans finally stopping him also has become impossible to imagine.  The only way that we will not have a crisis later this year, then, is if Trump wins and Democrats give up; and even then, we would merely be back here four years from now, wondering if the 78-year-old Trump will leave office (assuming that there is anything at all left of the rule of law by then).

But wait, maybe I am wrong!  A reader pointed me to a very recent Slate column, "Trump Can’t Just Refuse to Leave Office: We have a lot of things to worry about in the next eight months. This isn’t one of them," by someone named Fred Kaplan.  That sounds wonderful.  Maybe there is something that I have not thought of before now, and if Kaplan has some great insights, I am all ears.

As I will explain below, however, the case that Kaplan makes does nothing to allay any reasonable fears.  His claims are slightly better than other don't-worry-be-happy arguments, but he simply does not prove that Trump and the Republicans would be unable to keep him in office.

Thursday, June 04, 2020

Are Churches Like Restaurants? Like Political Rallies? If So, Why Isn't Peyote Like Wine?: The Comparator Problem In Religious Discrimination Cases

by Michael C. Dorf

In my essay on Tuesday, I criticized the dissenting Justices in South Bay United Pentecostal Church v. Newsom for seeming to misunderstand and/or mischaracterize California's rules governing in-person worship services, which, at the relevant time, were permitted if limited to 25% seating capacity and a cap of 100 people. As California argued and Chief Justice Roberts explained in his concurrence, comparable secular activities such as lectures, concerts, and live spectator sports were completely forbidden, so that far from discriminating against religion, California was giving religious worship services a special benefit (assuming that the opportunity to contract COVID-19 is a benefit, as all parties assumed). Justice Kavanaugh's dissent contrasted the treatment of worship services to other activities that were not subject to the 25% cap: "factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries." Yet, as the Chief Justice noted, these venues and activities are not really comparable in terms of health risk, because they do not occur in places "in which people neither congregate in large groups nor remain in close proximity for extended periods."

That's plainly right for most of the examples, but, a commenter on my earlier post observed, not necessarily all of them. Accordingly, another commenter concluded, California really was making a judgment not only about relative health risk but about the relative importance of religion and some other activities. And therefore, the commenters implied, my criticism of the Kavanaugh dissent for conflating a health risk judgment with an importance judgment missed the mark.

In today's follow-up essay, I'll say a few words about relative health risks--focusing on restaurants and political rallies--before turning to a question of constitutional doctrine that has implications and applications beyond the current context. Bottom Line: Chief Justice Roberts and I are right; Justice Kavanaugh and the commenters are wrong.

Wednesday, June 03, 2020

How Close Are We to A Breakdown of True Law and Order?

by Neil H. Buchanan

This is horrifying.  Last week on Dorf on Law, we took a partial break from the news cycle by devoting three of our five columns to an academic discussion about an issue that we care about greatly, but that luxury is for the time being denied to us, because the man who has claimed over and over again to be "the most militaristic person there is" now has actually threatened to turn American cities into battle zones and has had troops fire tear gas, flash grenades, and rubber bullets at peaceful protesters.

It is amazing, in fact, that I did not know about Trump's "most militaristic" claims until I watched Seth Meyers's segment last night (from the 7:59 mark through 8:26 of the video, showing six times when Trump so labeled himself); but it makes sense not only that Trump would say such an idiotic thing but that we never even noticed, given how many other things he has said that are equally deranged.

That Trump (or maybe it was Bill Barr) ordered this police-on-public violence to clear the way for a weird walkabout to a church makes it that much creepier, but the point is that Trump has noticed that "the protests" have not all been peaceful, so it is now apparently acceptable to treat all protesters as thugs and criminals, even when the actual protesters are not being thuggish or committing crimes.

In situations like this, conspiracy theories inevitably run rampant, and there are all kinds of theories about who is instigating the violence.  But some theories are better than others, and especially when there is a president who thrives on chaos, one can expect those who support him to seize opportunities to give him excuses to overreact.  How does this work?

Tuesday, June 02, 2020

Statement by the Black Law Students Association of Cornell Law School (Guest Post)

Dear Cornell Law School community, 

Cornell Law School’s Black Law Students Association (BLSA) stands with the families of George Floyd, Breonna Taylor, Tony McDade, and Ahmaud Arbery. We give honor to their memories and to the memories of countless others who have been unjustly taken from this world, whether we know their names or not. We extend our heartfelt condolences to their loved ones and acknowledge that the people they have lost are more than a hashtag.  

Black people are in a unique position today, facing both the brunt of the COVID-19 pandemic and the unrelenting violence against our brothers and sisters all across the country. In the last month, we have seen videos of Ahmaud Arbery’s and George Floyd’s murders. We have seen reports of Breonna Taylor’s and Tony McDade’s murders. This trauma is incessant in the age of social media and more than any community should have to bear.  


While we continue to grieve Mr. Floyd and others, we are reminded that murders like his are the result of centuries of injustice and oppression – of this country’s refusal to address and change its longstanding practice of anti-Blackness. More often than not, senseless killings by police result only in superficial reprimand that falls short of addressing the underlying problems that support a racist system. To be sure, true justice does not stop at an arrest – true justice requires that we reexamine the structural inequities that continuously exclude and actively oppress Black and brown people. 


Many of us applied to law school hoping to make a difference, to be an ally. As lawyers in the majority, many of you will have access to spaces and tables that your Black counterparts will not. When the time comes, it will be important for you to remember this moment – remember your responsibility as movers and shakers in our justice system. Remember that your Black friends will continue to mourn long after this country has forgotten why we were protesting to begin with. We bear the burden of constantly burying our brothers and sisters and ask that you stand next to us as we endeavor to dismantle the system of oppression. 


Do not be complicit in the deaths of Black people. Have those tough conversations with your family, friends, co-workers, and fellow students. Do not shy away from the fact that both police officers and civilians are continuously allowed to use lethal force and violence against Black people. To remain silent – to remain neutral – is to side with our oppressors. Your silence is violence. Publicly demand equality, justice, and safety for us.


For Four SCOTUS Conservatives, Insufficient Discrimination In Favor Of Religion Is Discrimination Against Religion

by Michael C. Dorf

South Bay United Pentecostal Church v. Newsom should have been a unanimous Supreme Court decision. Under the 1993 precedent of Church of Lukumi Babalu Aye v. Hialeah, a law or policy that on its face or in its intention discriminates against religion or a particular religion violates the constitutional guarantee of free exercise, though under the earlier (1990) precedent of Employment Division v. Smith, a law or policy that applies evenhandedly to religious and secular activities, individuals, and organizations does not implicate free exercise.

As Chief Justice Roberts explained in an opinion concurring in the Court's order in South Bay United last Friday, the Court had before it a challenge to an evenhanded policy. When the case came before the Court, California was allowing houses of worship to hold in-person services, but in light of the risk of COVID-19 spread, had limited attendance to 25% of seating capacity and a maximum of 100 people per service. "Similar or more severe restrictions apply to comparable secular gatherings," Roberts explained, "including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time."

The Chief was right, although he understated the point. As of when the South Bay United case came before the Court, California's rules clearly favored religious gatherings. They expressly forbade (and as of this writing still forbid) secular "professional, social and community mass gatherings," but made "an exception to the prohibition against mass gatherings for faith-based services and cultural ceremonies as well as protests," which were permissible, subject to the 25%/max-100 limit. Put simply, California has been discriminating in favor of religion, not against religion, and thus the challenge rightly failed under Lukumi/Smith.

So why wasn't the decision unanimous? Why did Justices Thomas, Alito, Gorsuch, and Kavanaugh dissent? After exploring a doctrinal possibility, I'll offer the hypothesis that they are so steeped in the FoxNews War-on-Christmas culture that they perceive modest favoritism for (Christian) religion as discrimination against it.

Monday, June 01, 2020

The American Experiment: A Blip in Time or a Country for the Ages

By Eric Segall

Forty-three years ago I was walking around Cambridge University on a breezy summer day. My buddy and I were working in a mail room in Brighton between freshman and sophomore years of college and decided to hitchhike, yes hitchhike, to Cambridge for an annual music festival.  The groups were mostly British except for the headliner, a new American folk/pop star named Don McLean.

As we strolled around the campus, we came upon a student dormitory that was built in the 13th century. I don't remember the date with 100% certainty but I think it was 1268. Bill and I looked at each other. We were shocked and amused by this. Students were learning and teachers were teaching on this spot more than 500 years before the United States of America was born. Five-hundred years. In 1977, our own country was just a tad over 200 years old, and England had been around much more than twice as long as that.

Skip ahead to last Friday. I was taking my morning walk and listening, as I always do, to the Dan Le Batard show on ESPN. For those who don't know, this radio show is part sports, part sports satire, and part social commentary, with its serious moments. On this day, Dan Le Batard began his show as follows: "A CNN was reporter was arrested at what is feeling less and less like America. Boy I miss my country." I think many people, definitely myself included, feel this way too, but what exactly does it mean?

Friday, May 29, 2020

Of Economics, Legal Reasoning, and Religion: Conservatives' Opportunistic Escape Hatches

by Neil H. Buchanan

I have at various times thought that there was hope that the people with whom I disagree on matters of public policy and legal issues were at least making some kind of internal sense.  That is, I thought that perhaps it was possible to follow their logic and apply it to new questions, and even if the answers to which their logic might lead were "not conservative," at least the other side would have to admit that their own approach to answering such questions had led us there.  Fair is fair.

I miss those days of optimistic youth.  As Professor Dorf and I have both announced this week (here and here, respectively), we recently wrote a law review article, "A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism," in which we note not only that conservatives are playing rigged games in both economic analysis and legal interpretation but that the way in which they have rigged both games is surprisingly similar.  We make further points based on our observations, but that similarity is the key that motivated us to write the paper in the first place.

Professor Dorf's column on Tuesday did a nice job of summarizing our article, whereas my column yesterday explored whether anything remains of the concept of economic efficiency once we understand that its theoretical basis is incoherent.  Here, I will briefly discuss a few examples of times when it almost seems as if taking conservatives' preferred argumentative structures seriously might lead somewhere surprising (and useful), only to find that the story always bends back on itself whenever the preferred right-wing outcome is threatened.

After a quick summary of the two halves of our argument, I will move on to those illustrative examples.

Thursday, May 28, 2020

We Can Have a Fairer, More Prosperous World: The Deep Emptiness of Efficiency as a Concept Is Even Deeper Than It Seems

by Neil H. Buchanan

Pretty much everyone who has studied even a tiny bit of economics is likely to have come across the familiar "efficiency-equity trade off," which posits not only that there are two distinct concepts called efficiency and equity but that they are in conflict.  If we want more efficiency, the logic goes, we must accept less equitable outcomes.  If we want more equity, we must give up some efficiency.  Sound familiar?

This is, in fact, not only wrong as a matter of logic but tragically so in its consequences.  Even though it is wrong, however, the liberal/conservative divide in the U.S. (and probably in many other countries as well, although what counts as left-ish in this country is clearly to the right of center in any other country to which we might compare ourselves) is in some ways built around this false choice.  Liberals have accommodated themselves to the idea that they are trading away some amount of efficiency when they promote things like minimum wages and income supports, and conservatives delight in saying that liberals want to kill the proverbial golden goose.  We thus see right-wing think tanks pumping out op-eds with headlines like this recent New York Times guest piece: "The American Dream Is Alive and Well: We have bigger issues than inequality."

To be sure, left-leaning economists and other policy analysts can do a lot of interesting work within the narrow strictures of that debate, sometimes pointing out when efficiency (as typically conceived) can be enhanced by pursuing more equitable policies.  The most obvious examples are in medical care and health insurance, where it is particularly easy to describe how the usual conservative economic assumptions are violated in ways that cause "free market" choices to be wasteful, hugely unfair, and self-defeating,

But this framing of a trade-off between equity and efficiency is, as I noted above, deeply wrong.  As Professor Dorf announced in his column here two days ago: "A New Buchanan/Dorf Paper Explains Why We Don't See More Conflict Between Law & Economics and Originalism/Textualism."  Our article draws from the authors' respective areas of specialization (I write mostly about economics and policy, Professor Dorf focuses on constitutional law and legal interpretation, among other things) to note an unexpected similarity between how conservatives in my field and conservatives in Professor Dorf's field rig their respective games: both groups claim to be using neutral, objective, and even scientific methods of analysis, yet somehow those analyses can be manipulated to produce conservative results every time.

There is much more to the article, of course, and interested readers should take a look at Professor Dorf's column.  People who have run out of Netflix content might even find a pleasurable diversion in the paper itself: "A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism."  Here, I want to move the analysis from the broader economic critique that forms the basis of half of the article to a particularly alluring misuse of the efficiency concept in legal and policy analysis.

So as not to be coy or evasive, I will state my bottom line as clearly as I can here: Not only is efficiency an empty concept, but it is deeply empty in the sense that it is wrong even to fall back on a narrower claim, which generally goes like this: "Well, it's true that efficiency is manipulable, but there are some situations where it so obvious that something is inefficient that it is still meaningful to use the concept, albeit modestly."  No, even that minimalist defense cannot be sustained.