Friday, January 19, 2018

Is there a difference between non-prohibition and authorization?

by Michael Dorf

A new National Constitution Center (NCC) podcast hosted by NCC President Jeffrey Rosen and featuring Cato's Ilya Shapiro and yours truly addresses federalism issues arising out of three controversies in the news: the pending Supreme Court case of Christie/Murphy v. NCAA; the rescission by Attorney General Sessions of the Cole memo regarding federal enforcement of the Controlled Substances Act with respect to marijuana in states that have legalized medical marijuana (and related actions regarding enforcement with regard to state-legal recreational marijuana); and the Trump/Sessions policy with respect to sanctuary cities.

The common thread running through each of these controversies is the constitutional doctrine forbidding the federal government from "commandeering" state legislative and executive officials. Because I have already commented on the marijuana and sanctuary cities issues, in this column I'm going to expand on a position I articulate in the podcast regarding the Supreme Court case, which involves the interaction of federal and state law on sports gambling.

Thursday, January 18, 2018

Opening Up About Shutdowns

by Neil H. Buchanan

As I write this column, it is still unclear whether there will be another government shutdown.  If nothing changes, the so-called nonessential functions of the federal government will cease operations at midnight on Friday, January 19.  The latest reports indicate that Donald Trump has thrown another hand grenade into the room by undermining the Republican leaders' latest bargaining strategy.  Within minutes, however, that was (unsurprisingly) being disputed.

This is a mess, but other than proving again that Trump knows nothing about negotiating and that Republicans are incapable of governing responsibly, does any of it matter?  The short answer is that a possible shutdown is not as important as people make it out to be.  Because this is ultimately all about political theater, however, this lowbrow farce can end up making a big difference for the two parties' respective political fortunes.

In any event, it is worth understanding what is not at stake as well as what is at stake, especially because averting this particular possible shutdown does not eliminate the threat of other shutdowns in the near future.

Wednesday, January 17, 2018

The Warrant Requirement

by Sherry F. Colb

In my Verdict column for this week, I discussed Collins v. Virginia, a case presenting the question whether the automobile exception to the warrant requirement applies to searches of vehicles parked in a suspect's driveway. In the column, I examine the question about the Fourth Amendment and the driveway (doctrinally designated as the "curtilage") and consider as well whether the Court ought to get rid of the automobile exception to the warrant requirement altogether. In this post, I will take up the broader issue of why we have a Fourth Amendment warrant requirement and what this requirement can and cannot do to protect privacy.

Tuesday, January 16, 2018

The Long-Term Impact of "Fire and Fury" and "Shithole Countries"

by Neil H. Buchanan

If someone had told me on New Year's Day that the first two big stories of 2018 would be the release of a book detailing the White House's dysfunction and Donald Trump causally denigrating more than a billion nonwhite people, I would not have been even a little bit surprised.  Looking at this mess barely two weeks later, only the details are somewhat unexpected, and even those details are not at all shocking.

It seems like an eternity has already passed since Michael Wolff's book became the talk of the town, but the first newspaper articles about Fire and Fury were actually published on January 3.  (The New York Times ran a Reuters piece that afternoon.)  The ensuing two weeks have seen the kind of nonstop screaming fest that has become all too familiar in the last year, and Trump's racist comments last week about immigration from poor countries simply added to the chaos.

What, if anything, will be the long-term impact of all of this hubbub?  Even at this early point, it appears that this is just another insane set of news cycles that will be quickly forgotten, with only the detritus lingering in the public's mind.  (The word "shithole" is now permanently part of the world's political lexicon.)

The only development of any lasting significance, I think, is the Wolff-caused epic blowup of the relationship between Steve Bannon and Donald Trump.  What is puzzling and surprising, as I explain below, is that it is currently possible to see how that crackup could turn out to be a win for almost anyone (except Bannon himself, of course), even though it cannot possibly end up being a win for everyone simultaneously.

In the end, however, I think the most likely effect of the latest events will be that Trump -- even without Bannon -- has turned every Republican into every Democrat's dream opponent.  The first half of January will have made it even easier to run against Trump's party of enablers in November.

Monday, January 15, 2018

Dr. King, Trump, and Dignity

by Michael Dorf

In past years, I have marked the birthday of the Rev. Dr. Martin Luther King Jr. by discussing his oratory or noting the importance of the recognition of the day as an official holiday. This year I want to reflect on what an official celebration of King's anti-racist legacy means when we have a racist president. I'll use Trump's description of Haiti, El Salvador, and African nations as "shithole countries" as my jumping-off point, turning back to Dr. King at the end of this essay.

Friday, January 12, 2018

Reality-Based versus Faith-Based Economics

by Neil H. Buchanan

Imagine that you are in business.  You make good products, but you necessarily create a mess while you make them.  Like baking cakes, or catering parties, or refining oil into gasoline.  People want what you are selling, and you can make it cheaply enough to make a profit.

You hate dealing with the mess, but you have to do something about it.  What to do?  Cleaning up your own mess is annoying, costly, and time-consuming.  You could hire someone else to do it for you, or you could figure out a way to push the mess onto someone else and force them to deal with it.

In each of those two alternatives to doing it yourself, you no longer need to care about how the mess is handled.  If your hired clean-up crew is inhaling toxic chemicals or developing repetitive stress injuries, that does not feel like your problem.  If you have successfully pushed the mess completely onto others (by dumping your mess into a river, for example), you do not even need to worry about paying anyone at all.  Out of sight, out of mind.

For you, the best part of making your mess other people's problem is that you can do more of what you like to do.  You can make more cakes, cater more parties, ship more gasoline.  Your revenues are up and (with some exceptions that you can generally choose to avoid) so are your profits.  Freedom to be entrepreneurial, to be a maker and not a taker, feels good.  You like yourself, and people say good things about you.

So when someone comes along and tells you that the way you are shoving your mess onto other people is dangerous or economically damaging or simply unfair, you have two choices.  You can admit that your productive activities are more costly than you realized and take responsibility.  If so, good for you.

Unfortunately, you can also scream about how other people do not appreciate your genius and the sacrifices that you make, and you can buy politicians who will allow you to keep doing what you are doing (and who will make flowery speeches about you whenever possible).  This has the advantage both of fattening your bottom line and flattering your self image.  Who could say no to that?

Thursday, January 11, 2018

The Deregulation Fairy

by Neil H. Buchanan

One of the myths that Republicans have successfully planted in the mind of the media is that American businesses have been excessively regulated.  This has led to credulous reporting about the supposedly "onerous burdens" of federal rules, recitations of the number of pages in the Code of Federal Regulations, and so on.

That old myth has now oddly merged with a new myth that grew out of the 2016 elections.  American political reporters and editors decided that they had been living in a bubble and thus failed to see the misery that purportedly led a surprisingly large minority of voters to pull the lever for Donald Trump.  Solution?  Send reporters to The Heartland to talk to Real Americans about why they like the man-child that they put in the White House.  Be respectful.  Believe whatever they say.

The results have been absurd, reaching a low point with an infamous New York Times piece in November of last year about a Nazi sympathizer who lives in Ohio.  The article was rightly mocked for normalizing a sociopath (He likes "Seinfeld"!), and The Times backtracked furiously.  Yet that incident only served to highlight the ridiculousness of the efforts by self-flagellating media types who think that their job is to engage sympathetically with people who voted for an obviously racist candidate and campaign.

How do these two myths fit together?  Coastal reporters are going to The Heartland again, but not to talk to the supposedly forgotten people who flipped from the Democrats to the Republicans and put Trump in office.  Instead, the new move is to interview Republican businessmen and then gullibly report what they say about Trump's deregulatory agenda as if it must be important and true.

To be clear, I am not equating the hatred of white supremacists with the self-important reactionary politics of local business elites.  What I am doing is equating the instinct on the part of reporters and editors that talking to people in the Midwest brings with it a requirement to present anything that the interviewees say in sympathetic terms.  Uncritical reporting is stenography, and it can make absurd ideas seem normal.