Pandemic Politics, Equal Protection, and Equal State Sovereignty

by Michael C. Dorf

Earlier this week the Washington Post reported that the Trump administration appears to be favoring Republican-led states--especially Florida, which is critical to Trump's re-election strategy--over Democratic-led ones in the distribution of desperately needed respirators, personal protective equipment, and other medical supplies, rather than distributing in accordance with population or need. The report is not definitive, as the administration has not officially announced criteria for distribution. Moreover, although Florida trails New York in total cases, its large retiree population makes its need critical, so it is possible to imagine a fair rationing scheme that allocated at least some extra supplies to Florida (or some other states). And with some federal stockpiles nearly depleted anyway, it might not make much difference.

All that said, however, the story, if true, is extremely disturbing. Although I don't see a successful case going to court, the putative policy nonetheless raises three sorts of constitutional issues, involving: free speech; equal protection; and the much-maligned principle of "equal sovereignty of the states." In a December 2017 Verdict column, I considered more or less the same objections to the elimination of deductibility of state and local taxes (SALT), which overwhelmingly burdened blue states. Although the stakes now are higher, the core issue is more or less the same. In the 2017 column, I pretty much assumed that it would be unconstitutional for the federal government to disadvantage a state as punishment for its politics, arguing that the real sticking point would be proving intent. I continue to think that proof would be difficult, but in today's column I also want to question my underlying assumption that there would be a constitutional violation even if political intent were clearly proven. I'll consider each of the potential claims in turn.

What if Trump Had Flipped the Script?

by Neil H. Buchanan

On March 18, Republican anti-Trump activist George Conway wrote: "There Is No New Trump."  Here is the first paragraph:

"If you think you’ve been hearing a different President Trump this week — more accepting of the reality of the coronavirus pandemic — don’t be fooled. The new Trump is the same as the old Trump. He can’t help it. He’s incapable of taking responsibility for his role in this crisis — and thus incapable of leading us out of it."

Much of what we have seen in the past three-plus years has a "Groundhog Day" feel about it, which makes it not actually surprising that we need to be reminded of Conway's warning barely two weeks later.  Still, gullible media types quickly took to praising Trump's latest attempt this week to sound serious, commenting on how different he sounded and suggesting that there is indeed now a new Trump.

Meanwhile, Trump's Republican enablers are already falsely claiming that the impeachment trial (and thus the Democrats) are at fault, so claims to seriousness in Trump World are pretty hard to take ... er ... seriously.

Moreover, the new faux-serious Trump is still trying to downplay the situation.  True, he now is talking about a possible U.S. death toll of at least 100,000 people, but even when he spoke at a press conference about the range of that forecast -- 100,000 to 240,000 -- he rounded down the upper end to 200,000.  Forty thousand extra dead Americans?  Rounding error.

Here, I want to discuss two genuinely serious questions.  First, why is Trump even now downplaying the seriousness of the situation, simply from a strategic, political point of view?  And much more interestingly, what if Trump had actually jumped ahead of this crisis from the very beginning?  Would he have gotten any credit if he -- for the first time -- had done the most responsible and self-sacrificing things possible?

In a Pandemic, as Always, Federalism is a Double-Edged Sword

by Michael C. Dorf

Note to Readers:  I am aware that today is April 1. In past years, I have written April Fool's posts on this date. I realize that many people want--indeed, desperately need--a humorous distraction, and I don't begrudge them that. I just don't have it in me right now to provide one. In the event that the crisis has largely passed in a year, I'll do my best to provide an especially funny piece then. For now, here's a serious column on federalism.

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My most recent Verdict column, which was published on Monday, discusses last week's Supreme Court ruling in Allen v. Cooper. In an opinion by Justice Kagan, the Court held unconstitutional a federal statute that abrogates state sovereign immunity against private lawsuits seeking compensation for copyright infringement. The case applies prior precedent--especially Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, which held the same thing with respect to patent infringement.

But Florida Prepaid and the Court's state sovereign immunity jurisprudence more broadly are a mess.  I conclude the column by characterizing the doctrine this way: It "rests on a highly dubious construction of the constitutional text, serves a largely symbolic interest in the 'dignity' of the states, and includes an extremely complex and mutually contradictory set of rules, exceptions, and exceptions to the exceptions."

In the column I suggest that, given liberals' prior disdain for the entire state sovereign immunity project, the best way to understand their decision to adhere to the precedents is a kind of tactical bargain: Perhaps Justice Kagan accepts this conservative line of cases in the hope that CJ Roberts will reciprocate in abortion cases and other areas where the existing precedents are more liberal. Here I want to pivot back to the role of federalism--judicial and otherwise--in the pandemic response. I'll identify ways in which it is helpful and ways in which it is harmful. I'll conclude with some thoughts about whether we can say anything general about the virtues and vices of federalism.

Manly Men, Macho Grades, and a Proposal to Recognize "Excellence"

by Neil H. Buchanan

Trying to keep our corner of society running as well as possible under scary circumstances, professors in colleges and universities nationwide have responded to the global pandemic by changing our grading systems for (what we hope will only need to be) the current semester.  The most cynical way to describe such changes is that grading is now "easier," which is freaking out the guardians of nerd machismo in the academy.

I cannot possibly improve on my Dorf on Law co-blogger Diane Klein's magnum opus from this past Friday, in which she systematically dismantled the arguments recently on offer from three law professors who have railed against the temporary grading changes -- although, as Professor Klein points out, it is frequently unclear whether their complaint is actually about curved grading more generally or, perhaps, simply an objection to noticing that our students are human beings who differ from each other in relevant ways.

Again, the Klein essay is masterful.  Although it is longer than the usual Dorf on Law fare, the subject demands extended analysis and she delivers.  It is well worth readers' time.

Here, I want to do two things.  First, I will add some observations in support of the obvious fact that these pro-tough-grading arguments are a bizarre form of what we might call performance masculinity.  Second, I will argue that, at their very best, those arguments actually support not a "rigorous" grading system but simply a grading lottery.

No, your eyes did not deceive you.  I am saying that the argument from the manly men, when taken to its logical conclusion in conjunction with what we know about our students' differences during the crisis, leads to the conclusion that we should simply assign letter grades via a random number generator.

I am not saying that this is a good idea, mind you.  I am saying that it would have been better than keeping grade distinctions (including "high passes" or "satisfactory-plus" grades) in the way that the protectors of manhood wanted us to do.

Optimistic Originalism by Professor Stephen Griffin: A Must Read

By Eric Segall

Law professors and other scholars write new articles about Originalism almost every day of the week. The sheer volume of this content makes it quite difficult to separate the wheat from the chaff. Every now and then, however, an article comes out that makes a seriously new and important contribution to the subject matter. Professor Stephen Griffin's "Optimistic Originalism," is one of those articles.

One of the great tensions between most forms of modern Originalism (that is any theory of Originalism without a component of strong judicial deference) and contemporary constitutional theory is how to reconcile the original public meaning of the Reconstruction Amendments with our modern society. The two most glaring examples of this disconnect are that most scholars and historians believe that the 14th Amendment's original meaning allows segregated schools (D.C. schools were segregated at the time and Congress knew it), and allow laws that overtly and harshly discriminate against women, such as Illinois' law barring women from being attorneys which the Supreme Court upheld in 1872. Yet, few Originalist scholars today are willing to live with those results (and it is unlikely any judge could be confirmed who took those positions). This problem has led to what Griffin accurately describes as "Optimistic Originalism."

Of Prisoner's Dilemmas and Straw Men: A Response to Blackman, Adler, and Krauss on Law School Grading

by Diane Klein

Dramatic (probably temporary) changes to grading policies are afoot in America's law schools, and in higher education more generally, in response to COVID-19, the all-online transition, and the seismic disruption taking place in education across the United States.  No sooner had thousands of faculty members figured out how to deliver their courses over Zoom and similar platforms, many for the first time ever, than the inevitable subject of grading had to be addressed.  Right now, when deadliest day follows deadliest day in the crisis, a subject like law school grading policy is a matter of urgent concern to only a tiny fraction of the U.S. population - consisting, in rapidly descending order, of U.S. law students themselves (about 113,000 nationwide), law faculties and administrations, and legal employers.  Most of the rest of the world probably could not care less.  But if you do care, keep reading!

Even Now, Suspending All Taxes Is Unnecessary (and Insane)

by Neil H. Buchanan

The U.S. Senate has now unanimously (!) passed the $2 trillion dollar stimulus bill that had been temporarily delayed while Democrats tried to reduce what we might as well call the "corruption premium" that Republicans had built into their initial proposal.  I continue to believe that, even though this is the "the largest fiscal stimulus package in modern American history" (as The New York Times insists on putting it, even though that claim is acontextual and means nothing), much more will soon be needed.

In my paired Verdict and Dorf on Law columns earlier this week, I argued that it would have been acceptable for the Democrats to agree to pay the bribes that the Republicans demanded, because we should simply admit that one of our major political parties is not going to treat this most serious of situations any different from any other.  They exploit every situation to push through regressive money grabs, and in this crisis the need for speed supersedes the desire to prevent distributive injustice (aka reverse-Robin Hoodism).

For the record, I am delighted that the Democrats were able to improve the bill as much as they did, in particular by creating what appears to be genuine oversight of the half-trillion-dollar slush fund over which Treasury Secretary Steve Mnuchin had been all but salivating.  The Democrats took some short-term public-relations hits by being the party that voted no, but what they extracted with only an extra couple of days of hard negotiating was impressive.

As I wrote above, however, this is the first of what will probably be multiple trips to the well.  When it quickly becomes clear that one-shot payments to no-longer-working Americans that amount to a few weeks' pay will not do the trick, what will Republicans demand in exchange for what they will surely brand as "another round of government handouts"?  And no matter what they demand, how should Democrats respond?

To pose the question more bluntly, is there any limit to my argument that the times demand that Democrats allow Republicans to grab what they can, hoping that at some point in the post-crisis future (but maybe not even then) we can revisit the injustices that Republicans insist upon extorting in exchange for their consent today?  Are things truly that desperate?

The best way to think about this is to look at the most extreme Republican crisis-based claim that I have seen to date: That we should shut down the U.S. tax system.  This is truly a WTF idea, but is it too much in the current crisis?  Yes it is.

The Potentially Deadly Toll of a Law Professor's Libertarianism

by Michael C. Dorf

My Verdict column calling for a national lockdown and, if needed to ensure its enforcement, suspension of habeas corpus, continues to receive pushback. Some of that pushback has a through-the-looking-glass quality, like this piece in RT, which for those unfamiliar, is a Putin-backed propaganda outlet for pro-Trump and other trollish views. I shall wear being called an "authoritarian minded law professor" by an organ of a foreign authoritarian as a badge of honor.

That said, the RT article makes a valid point: people who raise doubts about lockdown policies could have a legitimate argument and thus should be given a hearing. Today I'll look at the most prominent law professor to make the case that we are overreacting: Richard Epstein. His views do not withstand even the most minimal scrutiny and may already be responsible for serious real-world effects.