Thursday, January 17, 2019

Can Dogs Invade Our Privacy?

by Sherry F. Colb

In my column for this week, I discuss a case from Minnesota that may make it to the U.S. Supreme Court. The case raises the question whether a dog sniff of a private resident's door constitutes a "search" for purposes of the Fourth Amendment bar on unreasonable searches and seizures. The Minnesota Supreme Court held that the answer was "no" and that police therefore needed no warrant, probable cause, or other indices of reasonableness for having brought the drug-sniffing dog to detect narcotics in the house from outside of the house.

The answer to the question may turn on how the Court defines a "search." The Katz v. United States  definition (really the Harlan concurrence's definition) is the invasion of a reasonable expectation of privacy. The more recent (though also more ancient) definition has to do with the invasion of property, of "persons, houses, papers, and effects," rather than an inquiry about privacy and the expectations that people do and ought to be able to hold. We could answer both questions the same way, to be sure, but one might head in different directions depending on which question one selected as critical. Should people be able to expect privacy from K9 police detecting drugs in their homes? Does the use of K9s interfere with a person's enjoyment of his property rights in his home?

Wednesday, January 16, 2019

Why Professor Hemel is Wrong About Life Tenure for SCOTUS

By Eric Segall

Professor Daniel Hemel of the University of Chicago has written a thoughtful essay in Politico on why allowing Supreme Court Justices to serve for life, while raising some problems, is not as bad as the two potential cures that I and many other scholars have advocated (term limits or a mandatory retirement age). Although Hemel raises some strong arguments, they are not ultimately persuasive.

A Second Brexit Referendum Would Not Be Undemocratic

by Michael C. Dorf

Now that Parliament has resoundingly rejected the Brexit deal that PM May negotiated with the EU, a replacement deal seems highly unlikely. EU authorities could make some token concessions or give some nice-sounding reassurances, but the margin of defeat strongly indicates that nothing to which the EU could reasonably agree would come close to satisfying the coalition of (mostly Tory) Brexiteers and (mostly Labour) Remainers who voted no yesterday. Other than another vote on more or less the same deal with what most observers expect would be more or less the same outcome, that leaves two main options: (1) crash out of the EU without a deal, a chaotic process that would have very harmful economic consequences and potentially harmful political consequences at the Ireland/Northern Ireland border and/or elsewhere; or (2) remain in the EU after all. Here I want to explore option (2).

One way for the UK to remain in the EU would be for Parliament to simply ignore the result of the 2016 referendum. The UK was under no obligation to hold a Brexit referendum in the first place. When Parliament authorized such a referendum in 2015, it did not commit to abiding by the result. And even if the 2015 Act had so committed, the commitment could not bind a later Parliament, which could simply override it. Why is no one talking about this possibility? Presumably because everyone assumes that Parliament is either bound as an unofficial matter to follow through with Brexit, given the 2016 result, or because most people think that as a political matter, Parliament cannot unilaterally pull the plug on Brexit.

Accordingly, nearly all of the discussion of remaining after all assumes that there would be a second referendum. That brings me to a curious but surprisingly widespread argument one hears against a second referendum: that it would be undemocratic. Here I want to examine that argument. I'll conclude that despite some superficial appeal, it is unpersuasive.

Tuesday, January 15, 2019

Romney's Revealingly Empty Rebuke of Trump

by Neil H. Buchanan

It was never quite clear why Mitt Romney, the Republicans' failed 2012 presidential nominee, decided to run for the U.S. Senate.  He is turning 72 in March, he has no particular policy interests that seem to motivate him, and he was signing up for a job that often comes with almost no power or responsibility.

True, he knew that he could win easily (running in his current home state of Utah), but even that required some humiliating suck-up time to get Republican voters to forgive him for saying nasty things about Donald Trump in 2016.  Why take the job at all?

Fifteenth in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Neal Katyal and Bill Barr)

by Diane Klein

Today, confirmation hearings begin for William Pelham Barr as U.S. Attorney General, a position he held from 1991-1993 under George H.W. Bush.  Top of mind among Senators are Barr's statements about the Mueller investigation contained in an unsolicited 20-page memo he wrote in June 2018.  To the extent those statements tell us something about his views of the powers and duties of the special counsel, and the relationship between the Justice Department and the Special Counsel, it might be worth consulting the drafter of those regulations - Neal Katyal, who served that role as a 29-year old new lawyer in 1999 working for Janet Reno (and later served as acting Solicitor General under Obama).

Monday, January 14, 2019

The Least Interesting Branch

by Michael C. Dorf

Recently, a longtime DoL reader emailed to ask whether the Trump administration had made my life  as a constitutional scholar more interesting. Yes, I replied, but I added that I would gladly accept some boredom in my professional life in exchange for more sanity as a citizen. Yet I may be suffering from the worst of both.

Trump serves us up a constant barrage of crisis-threatening legal questions that have gone unanswered by the courts because no one had previously tested these particular limits. Can a president pardon himself? Can a sitting president be indicted? Can the president forbid the dissemination of a special prosecutor's report on bogus national security grounds?

Some of Trump's greatest outrages lead to litigation, and some of that litigation eventually reaches the Supreme Court, as the Travel Ban eventually did. But here we are two years into this execrable presidency, while disputes over most of his rage-tweet-inspired policies either languish in the lower courts or do not give rise to litigation at all. Meanwhile, the Supreme Court busies itself with cases that may be very important to the litigants and may present questions of systemic importance in various sub-categories of American life and law, but that are . . . well . . . boring.

Friday, January 11, 2019

National Emergencies: The Big Picture

by Michael C. Dorf

Donald Trump and his spokespeople have repeatedly floated the possibility that, if Democrats in Congress do not accede to his demand for $5.7 billion of border wall funding in exchange for ending the partial government shutdown, he will declare a national emergency and divert previously allocated funding to building his border wall. The proposal raises numerous legal questions. Do the statutes that allow the declaration of such an emergency really vest that much discretion in the president? How have previous presidents used this authority? Are there judicially enforceable rules or standards about what constitutes an emergency? How much, if any, deference, would the president receive, assuming the courts were willing to subject the declaration of an emergency to judicial oversight? What party or parties would have standing to challenge an emergency declaration leading to the shifting of funds to wall construction? What cause(s) of action could be brought? What kind of relief could a court order?

These and other questions are interesting and potentially important. Depending on the course of events, I may address one or more of them. But they are fundamentally lawyers' questions. Debating them in a sense concedes way too much to Trump and his apologists, much in the way that focusing on legal questions always risks obscuring the policy and moral stakes. Consider Trump's travel ban. In Trump v. Hawaii, the Supreme Court addressed the question whether, in light of the deference traditionally shown the president, the third version of the travel ban was so clearly unlawful as to justify judicial invalidation. The answer should have been yes, so the Court got it wrong, but the legal questions never should have even arisen. Yet because of the tendency in the US to equate legal and policy questions (a longstanding tendency that even Tocqueville noted in Democracy in America), Trump was able to claim that he was vindicated by the Court when, judged from a policy standard only, the travel ban was and is grotesque.

Accordingly, I want to set aside most technical legal questions to ask some basic questions about Congress, the president, and national emergencies.

Thursday, January 10, 2019

How Bad Will Things Become? Part Nine: A Useful Not-Quite-Overruled Precedent

by Neil H. Buchanan

If there is ever another president of the United States, and if she is a Democrat, we will have a different kind of divided government, with a rabidly conservative Supreme Court set to do battle against its ideological foes in the political branches.  Even if the Senate flips back to the Democrats, of course, Republicans will continue to engage in guerilla warfare by finding parliamentary tactics to gum up the works, but I want to focus on the Court's role as a barrier to future progress.

In my newest Verdict column, I consider an admittedly odd hypothetical question: If a future Congress and President agree to tax rich people more effectively than we currently do, will the Court's hyper-conservative bloc use a discredited precedent to invalidate that tax?  My answer is, "Yes, they might."  Here, I want to explore that discredited precedent a bit more, in order to return to the larger question of just how bad things might become under the solidified, stolen, extreme right-wing majority on the Supreme Court.

Wednesday, January 09, 2019

Facebook, Automated Censorhsip, and Experimentalism

by Michael C. Dorf

My latest Verdict column discusses the recent revelation that Facebook employs a small army of moderators armed with thousands of rules for censoring hate speech. To summarize, I note: (1) FB appears to have adopted the policy partly in response to a public outcry over offensive and outright lethal uses of its platform; (2) in addition, in many of the countries in which it operates, FB is legally obligated to censor hate speech; (3) that obligation means the effective export of other countries' restriction to the US, where our First Amendment protects hate speech as free speech; (4) but because FB is a private company, its censorship is legally permissible here; (5) in choosing to censor via rigid rules, FB follows roughly in the path of US legal doctrine, which, where speech is concerned, generally prefers the vices of rules -- under- and over-inclusiveness relative to their background justifications -- to the vices of standards -- uneven application and risk of abuse by decision makers given substantial discretion; and (6) there is no clearly superior option.

Or, as I conclude in the column: "So yes, Facebook’s rules are ridiculous. But given the legal imperative to censor hate speech in many of the countries in which it operates, Facebook may not have any especially good alternatives."

Here I want to probe a little deeper into the FB censorship regime. I'll speculate on the use of computer code in online censorship. I'll then consider a form of regulatory regime--experimentalism--about which I've written in my academic work.