Monday, January 27, 2020

Mike Bloomberg, the Billionaire Loophole, Unilateral Disarmament, and a Wealth Tax

by Michael C. Dorf

A recent NY Times story bears the headline Seeing a Bloomberg Ad on Fox News, Trump Takes the Bait. The headline and the story bury the lede. The story focuses on Trump's characteristic lack of self-control. Despite advice to ignore Bloomberg, Trump has been rage-tweeting about the man he dubs "mini-Mike" in response to ads critical of Trump and in support of Bloomberg's candidacy for the Democratic presidential nomination. But the fact that criticism irks Trump enough to provoke a fit of pique is not news.

The real reveal in the story is this: Bloomberg is providing a potentially very helpful service by running ads attacking Trump on traditional and social media. That spending is unlikely to result in Bloomberg's securing the nomination. currently gives him and all of the non-top-four candidates a combined 0.5% chance of winning the nomination. To be sure, the Fivethirtyeight model does not appear to take account of Bloomberg's deep pockets; as far as I can tell, it scores fundraising chiefly as a proxy for popular support, not for what money can do. And betting markets have Bloomberg doing considerably better, with a 10-15% chance of securing the nomination. I tend to think that's a bit high. Perhaps it reflects the fact that the sorts of people who bet on politics are more likely to be sympathetic to Bloomberg -- and thus to overestimate his appeal in the Democratic primary electorate -- than are most Democratic primary voters themselves.

In any event, whether Bloomberg's chances of securing the nomination are minuscule or merely small, his anti-Trump spending is a boon, especially if, as he has suggested, he continues to spend hundreds of millions on the Democratic nominee even if he is not that nominee. But that raises a question for the likes of Bernie Sanders and Elizabeth Warren, should either of them be the nominee: given their hostility to the influence of money in politics, can they in good conscience accept Bloomberg's support?

Friday, January 24, 2020

Pragmatism and Centrism are Not the Same Thing

by Neil H. Buchanan

The American public is faced with the reality that the Democrats' very flawed nominating process will spit forth a nominee who might or might not be the most "electable" candidate, whatever that means.

Mostly, I think, people simply want to fast-forward through the process and find out whether Donald Trump and the Republicans will succeed in smearing and so completely slandering the Democratic nominee that Trump (who is disliked by a clear majority of the public, and shows no desire to change that) somehow wins.  Still, the more likely outcome is a Democratic win followed by a succession crisis.  No one likes those two paths, but no other path seems imaginable.

Because I have long argued that any Democratic candidate would beat Trump convincingly (running in anything even remotely resembling a fair electoral process, including what we had in 2016 but might no longer have, because of ever more intense voter suppression), I ought to not care about the nominating process.  That the field will be narrowed (and to a large degree has already been narrowed) by the oldest, whitest voters available is a travesty.  But it will be not only necessary but easy to rally behind any nominee, because the alternative is in multiple ways so uniquely dangerous.

Rather than focusing on the outcome (and, to be clear, I have endorsed Elizabeth Warren), I am finding it more interesting -- perversely interesting, but still interesting -- to watch the debate within the non-Fox media play out about the Democratic candidates, because so much of that debate is truly weird in its insistent lack of logic and disengagement with reality.  Today, I want to focus on the ways in which that discussion uses coded language to push the result toward the most conservative outcome possible.

Thursday, January 23, 2020

What Is It About Government Spending that Freaks Out Otherwise Rational People?

by Neil H. Buchanan

Once the Republicans revealed themselves as being completely disingenuous in their teeth-gnashing about budget deficits, one might have hoped that the discussion of federal budget issues would become at least a little bit more sensible.  After all, not only does neither party currently seem to have a policy interest that hangs on deficit fear-mongering, but the Republicans' credibility on these issues is now completely shot.  Deficit hysteria should be a thing of the past, right?

Good luck with that.  There is a bottomless (cess)pool of people who are willing to make anti-deficit comments, helped along by two things.  First, the nonstop anti-deficit rhetoric of the last several decades makes every politician think that the safe, uncontroversial thing to do in every situation is to inveigh against the evils of federal borrowing.  Second, there is always at least a short-term advantage in pointing out that something your opponent is doing contributes to budget deficits.

After all, every politician is in favor of some spending and has supported some tax cuts, so all anyone needs to do to attack a politician is to say: "Senator X just told us that we need to spend a billion dollars on Project A.  A billion dollars -- with a 'b' -- which will go straight into the huge federal deficit.  What is he thinking about the burden that we are placing on the backs of our children and grandchildren?"  Whenever one happens to be in a debate where the anti-deficit gambit is available, few people can resist the gravitational pull of the conventional wisdom.

Although that temptation is often irresistible, the net effect is in the long-run interest of conservatives, because (as Professor Dorf, among others, has pointed out) the conservative project is ultimately designed to roll back the New Deal and the Great Society.  Succeeding in baiting their opponents into accusing conservatives of hypocrisy -- "Oh, look, Ronald Reagan increased deficits, so he was irresponsible, right?" -- merely reinforces the conventional wisdom.  The near-universal move to condemn the Trump/Republican hyper-regressive 2017 tax bill by screaming about deficits follows this playbook perfectly.  When Republicans again find it convenient to become fiscal conservatives, this will help them.

That would be bad enough, given how many things we could and should be doing by borrowing and smartly spending money at the federal (and state and local, for that matter) levels. But it gets even worse.  Today, I want to take the next step, moving from the conventional (and completely incorrect) wisdom about deficits to the conventional (and even more damagingly incorrect) wisdom that holds that government spending itself is per se bad.

Wednesday, January 22, 2020

Does ERA Ratification Trigger the Expressio Unius Canon?

by Michael C. Dorf

Yesterday I argued that the ratification of the Equal Rights Amendment (ERA) probably will not make a difference to constitutional law, because the Supreme Court already construes the Fifth and Fourteenth Amendment to forbid the federal and state governments from denying equal treatment based on sex. There will continue to be questions about whether particular laws or policies deny equality, but that will be true whether or not the ERA is deemed validly adopted (a question I separately address in my latest Verdict column).

Accordingly, I concluded that the primary impact of saying that the ERA is (or is not) part of the Constitution is symbolic. Symbols matter, of course, and insofar as constitutional law eventually reflects social values, treating the ERA as valid law could eventually affect constitutional doctrine. But so could a great many other things.

Yet while the conclusion that the ERA is validly part of the Constitution will have no obvious doctrinal impact with respect to sex discrimination, it could affect how the courts treat discrimination based on other grounds.

Tuesday, January 21, 2020

Does it Matter Whether the ERA is Part of the Constitution?

by Michael C. Dorf

Last week Virginia became the 38th state to ratify the Equal Rights Amendment (ERA), but its action came four decades after the deadline Congress set for ratification and after four of those 38 states purported to rescind their ratifications. Is the ERA now valid as the 28th Amendment? And who decides?

I will address these and related questions in a new Verdict column tomorrow. (Starting at midnight, you'll be able to find the column here.) Although the column will acknowledge substantial uncertainty, I will conclude that such uncertainty should be resolved in favor of ratification. The Article V threshold for amendment is already extremely difficult to satisfy; additional hurdles (such as a deadline that is not in the text of a proposed amendment or the opportunity for rescission despite the failure of the constitutional text to provide one) should not be added.

My argument in the Verdict column will be essentially agnostic with respect to the content of the ERA. It turns on the text of Article V, Supreme Court case law, and normative considerations (rooted in the views of the framers) about how difficult it should be to amend the Constitution. In the interest of full disclosure, I should add that I favor the substance of the ERA.

Putting aside the question whether the ERA should be treated as validly ratified, in this blog post today I'll discuss what practical effect, in any, treating the ERA as part of the Constitution would have. The short answer is probably none. However, I should acknowledge that ERA ratification could have an important symbolic effect that has largely untraceable ripples throughout society. Simply put, support for deeming the ERA validly enacted as the 28th Amendment may be tantamount to support for sex equality (which is why I favor it normatively).

Moreover, ERA ratification could have some surprising practical legal consequences. In a follow-up blog post tomorrow, I shall sketch one such possibility--that ERA ratification could ultimately undercut constitutional protection against forms of discrimination that are not sex-based. For today, however, I want to explain the pretty strong prima facie argument that the ERA will have no practical effect.

Monday, January 20, 2020

Constitutional Change

By Eric Segall

Last week I attended an excellent conference at the University of Texas on "Constitution Making and Constitutional Change." Over 100 Law professors from over 20 countries attended, and I learned a lot about constitutionalism outside the United States. I’d like to thank Professor Richard Albert for putting together such a wonderful event.

For my part, I presented an abstract of a work in progress  with the thesis that if, like in the United States, judges are going  to play an important role in keeping a Constitution up to date, they should do so by placing their values and priors up front, not by hiding behind formalist legal doctrines that rarely generate the results in hard cases.

Friday, January 17, 2020

Does "Okay Boomer" Create a Hostile Work Environment Based on Age?

by Michael C. Dorf

During Wednesday's oral argument in Babb v. Wilkie, Chief Justice Roberts elicited laughter from the courtroom audience when he asked Roman Martinez, the lawyer for petitioner Noris Babb, whether one recitation of the phrase "okay Boomer" directed at an older person in the course of a weeks-long employment decision process would be actionable under the Age Discrimination in Employment Act (ADEA). There ensued a back-and-forth in which the Chief Justice sounded incredulous: "So calling somebody a 'boomer' and considering them for a position would be actionable?," he asked. Martinez did not directly answer the question, instead settling eventually on a reformulation of his core position in the case: "if the fact finder were to conclude that that statement . . . was one of the factors going into" the employment decision, then yes, he said, liability would follow.

At issue in Babb is whether a plaintiff alleging age discrimination under the federal sector provision of the ADEA must show that consideration of the plaintiff's age was a but-for cause of an adverse employment decision (as the Solicitor General argues), or whether it suffices for the plaintiff to show that age was a "motivating factor," as Babb's attorneys argue, drawing on a test taken from the Title VII context. The underlying statutory and case-law context is complex. The outcome in the case may turn on how the specific statutory language on which Babb relies--"free from any discrimination based on age"--interacts with the constitutional requirement of equal protection, other anti-discrimination provisions Congress has enacted, and the case law construing them. Readers looking for a good summary may wish to consult this explainer by attorney Dan Kohrman. Although Kohrman works for AARP, on whose behalf he submitted an amicus brief in support of petitioner Babb, the explainer is fairly neutral.

I won't directly address the merits of Babb. Instead, I want to linger over the Chief Justice's question and the unspoken premise that he and those in the audience who laughed at his "okay Boomer" line share.