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Creating an Appearance of Impropriety by Purporting to Dispel One

The key point in Judge McAfee's ruling on the motion to disqualify Fani Willis and Nathan Wade from the Georgia state court case against Donald Trump and his co-defendants is that the defendants were not in any way prejudiced by Willis's romantic relationship with Wade. I'm glad Judge McAfee reached that conclusion, but he nonetheless deserves fairly withering criticism on at least two grounds. First, in light of his reasoning, Judge McAfee should not have held the distracting and time-wasting evidentiary hearing at all. Second, his conclusion that the Willis/Wade relationship created the appearance of impropriety was a non sequitur in light of his principal conclusion. Worse, that very conclusion itself creates a substantially greater appearance of impropriety than anything that Willis or Wade did. Let's begin with a brief synopsis. Everyone paying the slightest bit of attention understands that the real motive for the defendants' motion to disqualify Willis and W

Fifth Circuit Decision Granting Texas Parents a Right to Veto Federal Access to Contraception is a Hot Mess

On Tuesday, the U.S. Court of Appeals for the Fifth Circuit (mostly) affirmed yet another ruling against the Biden administration issued by Federal District Judge Matthew Kacsmaryk--who is probably best known for his decision invalidating the long-ago FDA approval of the abortion pill mifepristone. In Tuesday's ruling in Deanda v. Becerra , a panel of the Fifth Circuit upheld a decision by Judge Kacsmaryk obligating federally-funded Title X clinics to comply with a Texas law that gives parents veto power over their minor children's access to contraception, notwithstanding the federal government's argument that Title X pre-empts the state law. In today's essay I don't directly address the Fifth Circuit's substantive conclusion. Rather, I'll delve into a number of oddities and procedural puzzles that call into question both the court's decision to reach the merits and the implications of the ruling going forward. The Texas law at issue isn't specific

Yes, of Course the Democrats Should Be Trying to Get People to Believe the Good News About Inflation

One of the most infuriating habits among centrist and left-leaning politicians and pundits is their almost pathological urge to give ground to conservatives.  Any time I see or hear "to be fair" or something similar, I brace myself for what comes next.  Sometimes, it is a relief to see that it merely leads to a useful clarification, as in, "To be fair, these are alleged facts in a criminal complaint, not a legal finding."  Too often, however, the "fairness" involves unilateral disarmament. The most recent example of this phenomenon is discussion of inflation in the US.  There are too many examples to count or cite of non-Republicans saying , " To be fair , inflation is a big problem," or "Well, people are worried about inflation."  Within a single one-hour period earlier this week, I heard two pundits on MSNBC (on different segments on different shows) assert casually that "Well, inflation is still too high," and "Sure,

Is Politeness a Reliable Defense Against Fascism?

There is ever more reason to believe that the US will not survive as a constitutional democracy in anything like it's current form after 2024.  Donald Trump and his supporters have been saying this more and more openly and emphatically in recent months, making plans to do everything that they accuse others of doing: "weaponizing" the government, interfering in elections, and all the rest.  The one-party dictatorship that will take shape starting in 2025 will almost certainly continue to have the form of a constitutional democracy -- elections, courts, and so on -- but none of the substance. To be clear, I am not convinced that the current polling regarding the presidential election should be taken at all seriously.  Indeed, I suspect that Biden will ultimately win the election -- rather easily, in fact -- even though he will have to fight on the extremely uneven playing field that conservatives (current Republicans and their Dixiecrat forbears) and their judges have set u

Judicial Review, the Supreme Court, and a Possible Constitutional Apocalypse

Alexander Hamilton explained in Federalist No. 78 the rationale for the Founding Fathers giving judges the power to strike down laws enacted by the legislature. He said the following: The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two , that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusio

Litigation as Transphobic Theater

Bruce Blakeman is the County Executive for Nassau County (on Long Island). Last month, he issued an executive order barring transgender girls and women from competing in girls’ and womens’ sports at Nassau County facilities. New York State Attorney General Letitia James then sent Blakeman a cease-and-desist letter  on the ground that the executive order violates state law. She is clearly right about that. For example, one of the provisions AG James cited is a state civil rights statute that provides, as relevant here: "No person shall, because of  . . .  gender identity or expression . . .  be subjected to any discrimination in his or her civil rights . . . by the state or any agency or subdivision of the state." To my knowledge, Blakeman does not deny that his executive order violates state law. However, he believes he is nonetheless entitled to enforce it because he thinks the state law discriminates based on sex in violation of the federal Constitution and federal Title

Does the Court's Aggressive Overreach in the Trump Disqualification Case Suggest (Oddly) that the Rich Cannot be Taxed?

It is somewhat head-spinning to note that the Supreme Court's gift to Donald Trump in the Colorado case -- keeping him on all presidential ballots nationwide, despite the Fourteenth Amendment's disqualification of insurrectionists and those who have "given aid or comfort to the enemies thereof" -- was issued only four days ago.  Trump v. Anderson now counts as old news, it seems, but on this quiet Friday afternoon, I want to return to that case and draw a somewhat counterintuitive connection with another pending case before the Court. Professor Dorf's brilliant critique of Anderson covers all of the relevant issues, of course, but I want to focus solely on a particular matter that caused some understandable outrage among critics.  The per curiam opinion concluded that federal legislation is necessary to enforce Section 3's Disqualification Clause, yet even Barrett's concern-trolling concurrence argued that it was unnecessary to reach "the complica

The Motivated Thinking That Allows Trump's (and Reagan's) Supposedly Reasonable Defenders to Live With Themselves

I confess to being surprised that Senator Mitch McConnell has endorsed Donald Trump for President.  I harbor no illusions about McConnell's deeply evil influence on American politics, going all the way back to his argument that low voter turnout among poor people is evidence that they are satisfied with their lives and see no reason to change anything (although he more recently simply admitted that high voter turnout is bad for Republicans).  And let us not even start on his impact on the courts. Even so, what the heck is he thinking?  He is retiring after having a very contentious (mostly non-) relationship with Trump, and he should have every reason to want to save his party from the kind of hyper-populist extremism that has engulfed it in the last few decades.  There was no reason to expect him to do the right thing for the right reason, but there were plenty of more McConnell-like reasons for him to ice out Trump at this point.  Oh well.  And if it has not happened already, we

A Partially Annotated Version of SCOTUS's Section 3 Case

On Monday, the Supreme Court surprised only the most optimistic of folks and reversed the Colorado Supreme Court's decision disqualifying Donald J. Trump from the 2024 Colorado Presidential Primary. Most of us knew there was no chance the Court would affirm, and some of us thought pretty strongly that they would reverse based on some form of "states can't do this on their own theory." The Court held states can disqualify insurrectionists from state office but not federal office, at least absent authorizing legislation from Congress. Below is a partially (very partially) annotated version of the opinion. First, the Court quoted Section 3 in its entirety, so here it is (hopefully for the last time in my lifetime): No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an