Thursday, March 22, 2018

A Latent Question in Zervos v Trump: Why Don't We See More Delayed Legislation?

by Michael Dorf

Earlier this week, NY State trial court Judge Jennifer Schecter denied President Trump's motion to dismiss or delay proceedings in the defamation lawsuit against him by Summer Zervos--a former Apprentice contestant whom Trump branded a liar in 2016 after Zervos publicly claimed that Trump had groped her without consent. Judge Schecter's opinion relies on Clinton v. Jones, which held that a sitting president lacks either full or temporary immunity from litigation for unofficial conduct preceding his taking office. In Jones, the Court left open the possibility that a different rule might apply in state court, because considerations of federalism and the supremacy of federal law, rather than separation of powers, would be in play. Judge Schecter concluded that the question left open in Jones should be resolved against any form of temporary immunity.

Judge Schecter's opinion makes two key points. First, she says that concerns about distracting the president from his official duties are the same in state court as in federal court; thus, the Supreme Court's conclusion that such distraction does not warrant full or temporary immunity in Jones carries over in state court. Second, Judge Schecter distinguishes cases finding that Supremacy Clause concerns warrant limiting the jurisdiction or remedial authority of state courts all involve fear of interference with the official functions of the United States; because Zervos has sued based on Trump's private conduct before he became president, those concerns are not implicated.

In the balance of this post, I want to consider some implications of a subsidiary argument that Judge Schecter makes. As the Jones Court itself did, she takes note of the fact that Congress has granted temporary immunity to members of the US armed forces during their service, so one can infer from Congress's failure to grant similar immunity to the president that it did not intend it. Jones has been on the books for over twenty years. Congress's inaction is thus telling.

But is it really? Given partisan considerations, one could see how, except in periods when one party controls the presidency, the House, and 60 seats in the Senate, there would be no political will to enact a provision granting the president partial immunity--even if an overwhelming majority of elected officials thought it a good idea in general.

Wednesday, March 21, 2018

Is Marriage a Fundamental Right "in Equal Protection"

by Michael Dorf

In my latest Verdict column, I discuss bills in Alabama and other states that would eliminate the obligation of couples seeking to marry to obtain a marriage license from a state or local official. Although these proposals have been touted as a means by which states can evade the obligation to permit same-sex marriage, I note that they don't go nearly that far. They would abolish marriage licenses; they would not abolish marriage itself.

But what if a state were to abolish marriage as a legal status for everyone? Would that be unconstitutional? I first consider the equal protection objection. To evaluate that requires grappling with the extent to which Palmer v. Thompson remains good law. Palmer upheld Jackson, Mississippi's closing of all public swimming pools in response to the obligation to desegregate its public swimming pools. Although I think Palmer was wrongly decided on its facts, I argue that the general principle it articulated--that a facially neutral law adopted for a discriminatory purpose only violates equal protection if it also has a disparate impact--remains good law, at least for now.

My column next turns to the liberty claim. Obergefell v. Hodges rooted the right to same-sex marriage chiefly in the fundamental right to marry under the doctrine of substantive due process. Assuming that's correct, then denying the right to marry to everyone in a state would obviously be unconstitutional. But is it right? Justice Thomas argued in dissent in Obergefell that marriage is not an exercise of "liberty" in the same way that other fundamental rights are. Those other rights protect against government interference. The marriage right protects a right to state recognition. Given that we have a mostly classical liberal Constitution that protects negative rights, a fundamental right to marriage looks like an anomaly.

In the column, I suggest that an affirmative right to marry is not necessarily ruled out by the Constitution's text and that it would hardly be disruptive. States and their predecessors have recognized marriage for some people since colonial times. But my column concedes that it is technically an open question whether the fundamental right to marry would be violated by a law denying marriage to everyone.

Here I want to explore another possibility? What if marriage is a fundamental right "in equal protection?" To do so requires that we first examine that oxymoronic-sounding category of constitutional rights.

Tuesday, March 20, 2018

What Should Hillary Clinton Do (or Not Do) Now?

by Neil H. Buchanan

Last week, in "Hillary Clinton and the Heckler's Veto," I concluded with some sadness that the Hillary haters have won their war.  That is, even the Clinton detractors who are not Trumpian "Lock her up!" types have been so unfairly negative about Clinton for so long that her every utterance is now immediately shredded and recharacterized in absurd ways.  Although it should not have come to this, we have reached the point where Clinton can only make matters worse by saying or doing anything.  Anything at all.

As I pointed out, hatred of Clinton is such that she is also criticized when she does not say something.  That kind of criticism typically runs along these lines: "Oh, and if Hillary Clinton really cared about _____, shouldn't she have bothered to weigh in on this latest controversy by now?  Huh?  Shouldn't she?!"

The people who hate her -- and I am very much including reporters for The Washington Post and The New York Times, who took the worst behavior in the movie "Mean Girls" as a template for political reporting on Clinton -- never seem to feel so good as when they have fresh material from her to criticize.  And when she fails to deliver, they hate her for that, too.

My question today is what Clinton should now do in such a hostile environment.  When the hecklers are this relentless and unfair, and when action and inaction alike are taken as provocations by her detractors, how should she act?

Monday, March 19, 2018

Remembering Julie Hilden

by Michael Dorf

Julie Hilden -- lawyer, author, and editor -- passed away on Saturday. She was my friend for over 30 years. Julie combined a fierce intelligence with incredible kindness. Her work was brutally self-critical even as she was extraordinarily generous to others. I'll try to paint a picture of her life and work, but this is also a personal remembrance.

Sunday, March 18, 2018

Even If McCabe Committed Wrongdoing, He Was Likely Fired for "This Russia Thing"

by Michael Dorf

A number of commentators who are not simply apologists for Donald Trump have been arguing that the firing of Deputy Director Andrew McCabe by (supposedly recused) AG Jeff Sessions cannot have been a simple political hatchet job, because it was based on a recommendation of the Department of Justice Inspector General, a nonpartisan professional who was appointed to his current position by President Obama. I think they're making a straightforward logical error.

McCabe contends that he did nothing wrong. Maybe he's right about that. Let's assume for the sake of argument, however, that he's wrong. In other words, let's stipulate that if and when the report of IG Michael Horowitz is made public, it contains smoking-gun evidence that McCabe committed the wrongs that have been publicly alleged and that these are firing offenses, even for someone who is barely a day away from retiring with full benefits. Nonetheless, it is possible -- indeed, given Trump's very public campaign to discredit the Mueller investigation and anyone who could aid it, it is likely -- that the evidence contained in the IG's report was not the actual reason McCabe was fired.

The firing of James Comey closely parallels McCabe's firing.

Deputy AG Rod Rosenstein wrote a letter detailing how Comey's mishandling of the investigation of Hillary Clinton's emails--especially his public comments on the investigation--was a serious breach of policy warranting dismissal. Trump then fired Comey, initially claiming that he did so based on Rosenstein's report. But that was obviously just a pretext. As Trump himself soon boasted, he would have fired Comey without the Rosenstein recommendation. Why? Because of "this Russia thing."

Likewise, IG Michael Horowitz prepared a report detailing how McCabe's mishandling of the investigation of Hillary Clinton's emails--especially his authorization of comments to the media on the investigation--was a serious breach of policy warranting dismissal. Sessions, who had good reason to fear that Trump would fire him if he did not act against McCabe, then fired McCabe, claiming that he did so based on Horowitz's report. But that is likely just a pretext. Trump hasn't yet publicly boasted about it quite so explicitly as he did with Comey (although he has come close), but the most logical explanation for McCabe's firing--even assuming that he was fireable--is "this Russia thing."

Friday, March 16, 2018

How Scalia Saved Originalism By Destroying It

by Michael Dorf

Linda Greenhouse writes in The New York Times that Justice Scalia's legacy has already begun to unravel, as the SCOTUS--hitherto reluctant to cite legislative history in its statutory interpretation cases--has embraced legislative history since his death.  Greenhouse goes on to say that this development undercuts Scalia's lasting impact overall. She contends that Scalia wrote few memorable  majority opinions, citing DC v. Heller as a notable exception. She acknowledges that Scalia's admirers say his main legacy was "his insistence on originalism in constitutional interpretation and textualism for statutes." Yet, Greenhouse says, "[d]ebates over how to read the Constitution preceded Antonin Scalia and will be with us forever," thereby implying that Scalia's contribution to constitutional interpretation is negligible. And with the "debate about legislative history" that Scalia sparked "a fading memory," Greenhouse concludes that Scalia's legacy as a whole is fading.

Greenhouse's assessment of Scalia's legacy in statutory cases is premature. Meanwhile, I think she misunderstands Scalia's views about constitutional interpretation and thus also misunderstands his legacy there.

Thursday, March 15, 2018

Hillary Clinton and the Heckler's Veto

by Neil H. Buchanan

The "heckler's veto" describes a situation in which a person's speech is effectively silenced by the reactions or anticipated reactions of people who disagree with the speaker's views.  The threat of hostile reactions, up to and including violence, causes people to choose (under duress) not to speak or authorities to tell them not to speak.

Has Hillary Clinton's very existence become an especially pointed version of the heckler's veto?  It has long been obvious that her every word will be distorted by her detractors and that she will be held to mutually contradictory standards.  And now, finally, it appears that she simply cannot make an argument without her words being completely misconstrued and her motives impugned, so much so that she would be better off saying nothing.  (Perversely, she would then be criticized for her silence, but that is par for this course.)

I offer these thoughts in the light of a recent mini-kerfuffle over comments that Clinton made in an appearance in India, comments in which she again tried to describe why she lost the 2016 presidential election.  Inevitably, her remarks were deliberately misunderstood by conservatives and liberals alike.  Her critics are so relentless that they have succeeded in making it wiser for her never to speak again.  No matter what one thinks of Clinton, that is a serious problem.