Friday, September 25, 2020

State Legislatures Cannot Act Alone In Assigning Electors

by Grace Brosofsky, Michael C. Dorf, and Laurence H. Tribe

The Constitution’s Presidential Electors Clause of Article II, Section I empowers each state, through its legislature, to direct the “Manner” by which its representatives in the Electoral College are appointed. Since relatively early in the nineteenth century, the near-universal practice of states has been to enact legislation designating popular election as the appropriate manner. With the exception of Maine and Nebraska, which apportion their Electors to the winners of the Presidential election in each Congressional district, every state assigns its Electors to the winner of the statewide Presidential election.

Given President Trump’s unprecedented suggestions that he would not accept the result of an election that he loses, the question has arisen whether he might attempt to subvert that result by exploiting an apparent loophole. Suppose that more ballots in a state are cast for Democratic nominee Joseph Biden’s slate of electors than for President Trump’s slate but that Trump, perhaps making unsubstantiated claims of fraud, prevails upon the state’s legislature to change the rules and directly appoint his Electors to the Electoral College. Such a course of action would raise two questions: First, can a state legislature change its method for selecting Electors after it has conducted a popular Presidential election? Second, if so, can it disregard the state constitutional requirements for legislation, including presentment for and the possibility of a veto by the governor where state constitutional law so requires?

There may be reason to think that the answer to the first question is no—that a state legislature cannot change the rules of the game after the final out—but we shall assume, purely for the sake of argument, that such a change would be permissible prior to the convening of the Electoral College. Nonetheless, the answer to the second question is clearly no. Even if a state legislature has the power to assign its Electors to the loser of the state’s Presidential election, it can only do so by complying with the state’s constitutional procedure for lawmaking, including gubernatorial participation.

Why? In short, because the Presidential Electors Clause does not delegate any authority to state legislative majorities to circumvent their established state constitutional procedures for enacting legislation. On the contrary, as the Supreme Court held in the 1932 case of Smiley v. Holm, when the Constitution assigns a lawmaking function to a state legislature—as the Presidential Electors Clause does—the state’s own constitutional requirements for lawmaking guide and constrain how the state legislature performs that function.

Thursday, September 24, 2020

Justice Ruth Bader Ginsburg’s Legacy as a Justice and What That Reveals About our Broken Supreme Court

 By Eric Segall

Justice Ruth Bader Ginsburg was a remarkable woman both personally and professionally. Way ahead of her time, she championed women’s rights and changed American history for the better. Warm, caring, and funny in her private life while also fearlessly fighting for a better and more just society as a lawyer, judge, and justice. She will be sorely missed.

At this moment in America’s history, however, we should also pause to recognize that as a justice, Ginsburg was a partisan who for more than a quarter of a century voted her politics, beliefs, and values regardless of prior law. In that regard, the only difference between Justice Ginsburg and Justices Thomas and Alito, when it comes to their Supreme Court careers, is that Ginsburg did not hide her politics behind the false veneer of originalism, and that difference matters. But what matters more is recognizing that this remarkable woman, when handed largely unreviewable power for life, did what just about everyone would do as a Supreme Court Justice--vote her preferences.

The Long Con versus the Smash-and-Grab: Why Do Republicans Have So Little Finesse?

by Neil H. Buchanan

I have long been predicting that Donald Trump will stay in the White House, fully supported by the Republican Party, no matter what happens in this year's election.  Recent events have made me ever more grimly confident in that prediction.  So unless something wonderful happens -- or more accurately, unless American democracy draws the ultimate inside straight -- the Republicans will get what they have always wanted: permanent and unchallenged power, notwithstanding their extreme unpopularity.

At some point soon, I will likely go back to writing columns about what to expect under a completely unbound Trump dictatorship.  Today, however, I want to ponder why the Republicans were willing to carry out this heist of the American experiment in such a blundering and obvious way.  As I will demonstrate, they could have done it much more smoothly and left themselves with a healthier country to run into the ground.  Why the lack of even a tiny bit of finesse?

Wednesday, September 23, 2020

Why Do Republicans Bother To Lie About Their Judicial Appointments Strategy?

 by Michael C. Dorf

In an insightful essay Monday on Balkinization, Columbia Law Professor David Pozen dissects the terrible reasons that Republican Senators have given for why it was okay for them to hold open the seat that became vacant when Justice Scalia died in February of an election year but it's somehow imperative to fill the vacancy occasioned by Justice Ginsburg's death in September of an election year. As Professor Pozen shows, the real, operative "McConnell Rule" is revealed by the Senate Majority leader's actions: "block as many Democratic nominees and confirm as many Republican nominees as is politically feasible."

I completely agree with Professor Pozen's analysis, but it raises a question: Why do McConnell and other Republican Senators even bother to lie about what they're doing, especially given how transparently unpersuasive their lies are? To be sure, we might ask the same question about Donald Trump, who often lies for no apparent benefit or reason, but Trump is a pathological liar. McConnell and the other GOP Senators--Professor Pozen discusses Lindsey Graham, Ted Cruz, and Tom Cotton--are not. They're hardly pillars of truth, to be sure, but one would expect them to derive some benefit from lying. And presumably they do.

Here I'll try to figure out what benefits the lying Republican Senators derive from their lies and therefore what motivate them to lie. I'll offer various hypotheses, none of which I intend to be exclusive of the others.

Tuesday, September 22, 2020

Freedom of Movement and Freedom of Commerce: Barr Is Still Wrong

by Neil H. Buchanan 

For the last several years, it has become a grim, oft-repeated joke that it is impossible to keep up with the blur of awful news that rushes by us, dreary day after depressing week after soul-crushing month.  This last week seems to be both proof that it can always get worse and a demonstration that even hitting bottom would not be in any way a relief.  If this truly is as low as we go (and I doubt that it is), then that merely means that life might have fewer big shocks ahead -- but that we are stuck with the consequences of what we have already endured.

We very recently were wondering whether Donald Trump's insulting of people who join the military -- and especially those who are captured or die -- would erode even a tiny bit of his political support.  We heard him admitting on tape that he has been very consciously lying about the coronavirus pandemic.  We had heard Trump's Roy Cohn projecting every Trumpian evil onto Trump's opponents, claiming that it is everyone else who is abusing the rule of law and dishonoring the Constitution.

And all of those things, none of which meaningfully changed the polls or support among Republicans who slavishly back Trump, hit us before Justice Ruth Bader Ginsburg's death saddened us beyond measure -- only to be quickly followed by a Republican power play of jaw-dropping proportions.  Oh, and also a gratuitous insult from Trump, who called RBG's granddaughter a liar.
Although Bill Barr's latest trolling of America is no longer the greatest outrage to which one might respond, I want to use this space today to return to a discussion of what he had said last week about stay-at-home orders: "Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history."  Barr's casual distortion of our history calls for additional condemnation, because he truly does not understand what freedom is.

Monday, September 21, 2020

Confronting Originalism: Truths and Myths

 By Eric Segall

This post was mostly written before the death of Ruth Bader Ginsburg. The country has lost a true hero who in both her personal and professional life lived up to our highest ideals. Her litigation crusades to achieve equal rights for women changed this country forever. She will be sorely missed. I can't add anything to Mike's beautiful Saturday morning tribute.

Last Friday I gave a presentation (virtually of course) at the University of Nebraska on "Confronting Originalism." I outlined a series of truths about originalism that also dispelled numerous myths about originalism. Here are some of the arguments I made.

Saturday, September 19, 2020

RBG From the Point of View of the Universe

 by Michael C. Dorf

"President Trump’s nominee will receive a vote on the floor of the United States Senate." -- Majority Leader Mitch McConnell in a statement released yesterday that pivoted from gracious praise of Justice Ruth Bader Ginsburg to doublespeak about how 2020 is supposedly qualitatively different from 2016.

"[T]he funeral baked meats [d]id coldly furnish forth the marriage tables." -- Hamlet (in Act I, Scene II), chafing at how soon after the death of his father the king, his mother, Queen Gertrude, remarried the new king, Hamlet's uncle Claudius.


It was inevitable that the news cycle would not pause to reflect on the extraordinary career and life of Justice Ruth Bader Ginsburg before turning immediately to a discussion of whether there exist at least four Republican Senators who are not utter hypocrites. Still, I might have thought that savvy-if-evil politicians like Senator McConnell would have waited at least 24 hours before announcing their schemes for how they intend to reshape the post-RBG Court, if not out of common decency then perhaps because appearing to take time to grieve would be good politics. Call me naive.

I shall no doubt have much to say about whatever comes next, but for today I want to take a moment to celebrate Justice Ginsburg in broader perspective. I shall do so using a trope that my father, who also died in this annus horribilis, often invoked. My dad was a couple of years older than Justice Ginsburg and, although they did not know each other, moved in some of the same circles. That included overlapping for a couple of years at Cornell when she was an undergrad and he was a graduate student here.

My dad studied philosophy and liked to use an image from the English philosopher Henry Sidgwick: the point of view of the Universe. Sidgwick was a utilitarian who embedded that turn of phrase in a claim that one oughtn't to favor one's own interests over those of others (except to the extent that one knows one's own interests and is better able to advance them than to advance those of others). My dad and Justice Ginsburg were both notable for putting the interests of others -- both those close to them and strangers -- ahead of their own interests in many ways, but my dad, who knew what Sidgwick meant, liked to use the term in a different way. When dealing with one of life's minor or not-so-minor setbacks, he would say that it helps to see it from the point of view of the universe. He used the phrase less as a utilitarian and more as a stoic (in the original sense, not in the colloquial sense of joyless).

Friday, September 18, 2020

William Barr Has the Gall to Say He's Accountable to the People

 by Michael C. Dorf

The written version of the remarks Attorney General William Barr delivered this week at Hillsdale College was not as incendiary as what he said orally but, as I shall elaborate, infuriating nonetheless. The most outrageous oral statement came in Barr's response to a question about public health measures. He said that "putting a national lockdown, stay at home orders, is like house arrest. Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history."

Prof Buchanan explained in his insightful post yesterday that much of what Barr said was absurd anti-government cant. He prefaced that explanation by noting that the outrageousness of Barr's condemnation of lockdowns was not the comparison to slavery, which Barr acknowledged was worse than and categorically different from lockdowns. No, the outrageousness was thinking that U.S. lockdowns (which, as I explained on Wednesday, were not actually lockdowns in the Chinese or even European sense) come in second place.

Perhaps the Attorney General forgot the "Indian removal" policy of Andrew Jackson (whose portrait Barr's boss chose to put in a place of honor in his Presidential office). No doubt the fact that the United States locked up over 100,000 Japanese Americans during World War II for no reason other than their ancestry also slipped Barr's mind. Also Jim Crow; McCarthyism; patriarchy; etc. Perhaps Barr is using a secret and idiosyncratic metric to measure "greatest intrusion."

Whatever the explanation, Barr's comparison overlooks the obvious: slavery and various other gross intrusions on civil liberties were unjustified evils. Stay-at-home orders during the pandemic undoubtedly did and do infringe on the liberty of movement, but they do so for a very large benefit: saving tens of thousands of lives. Judged by that standard, the U.S. has not restricted the liberty of movement (and freedom to go about in public maskless) too much but too little. To be sure, some other technologically advanced countries have fared no better than the U.S., but looking over the per capita death toll by country, patterns emerge. Four technologically advanced countries have done about as badly as the U.S.: the two European countries that were hit hardest earliest--Italy and Spain; and the two that have been roughly as unserious in their efforts as the U.S.: Sweden and the U.K. By contrast, Canada has suffered fewer than half as many per capita deaths as the U.S., while countries with much better public health responses--including South Korea, Japan, New Zealand, and Taiwan--have done better by orders of magnitude. 

However, my point now is not that the U.S. ought to have been doing and should continue to do more to combat COVID-19, although I think that. My point is that any discussion of the civil-liberties cost of the response to the pandemic is grossly incomplete without an accompanying discussion of the benefits. I doubt that Barr would describe the imprisonment of convicted violent felons as an "intrusion on civil liberties," because, although imprisonment in fact deprives the people imprisoned of their liberty, it does so for the compensating benefits the criminal justice system brings about. We ordinarily perform cost-benefit analysis. Barr's condemnation of public health stay-at-home orders is simply cost analysis.