Friday, April 28, 2017

How Damaging is Clinton v Jones to Trump's Defense Against Various Lawsuits?

by Michael Dorf

Thirty-five years ago, in Nixon v. Fitzgerald, the Supreme Court held that the president has absolute immunity against civil damages litigation for acts undertaken in his official capacity. Twenty years ago, the Supreme Court rejected Bill Clinton's argument that a sitting president should enjoy temporary immunity from all civil lawsuits while he is president, including lawsuits seeking to recover for pre-presidential acts. Refusing to extend Fitzgerald in this way, the Court rejected Clinton's argument in Clinton v. Jones. The justices reasoned that answering such˙a lawsuit would not unduly distract the president from his official duties.

Clinton v. Jones looks like a potentially very damaging precedent for President Trump and his lawyers as they battle the various civil cases pending against him. How can the president respond?

Thursday, April 27, 2017

Saturation Coverage of Non-News About Tax Policy

By Neil H. Buchanan

[Note: The tenth and twenty-first paragraphs below have been updated to correct an error on my part regarding the lowest tax rate in Trump's non-plan.]

During the 2016 election campaign, Donald Trump hit a low point with the press when he announced that he would make a "major statement" about the birther controversy, supposedly to tell the world at long last that he had been wrong to say for years that Barack Obama was not a natural-born U.S. citizen.

In fact, Trump used the occasion to lead a meandering media event that he turned into an infomercial for his new hotel in Washington, D.C.  Finally, after jerking around the assembled press for what seemed like an eternity, Trump quickly said that Obama was born here and that the birther controversy was Hillary Clinton's fault all along.  He then left the room.

I take this trip down memory lane because that cynical manipulation of the press was supposed to have been a defining moment, the day that the press finally woke up and refused to be "played" by Trump's ongoing reality-TV show.  But of course, the press has instead slouched back into its familiar role of eagerly reporting on everything that comes out of the White House as if it is news.

Which brings us to this week's hysteria over Trump's "massive" tax cut.  Nothing of any real significance happened this week regarding tax policy, but reading the news coverage would make a reasonable person think that the world has just been shaken by the announcement of a major policy proposal.

In short, by doing nothing more than pretending to have something to say, Trump "won the news" again this week.  We know nothing more than we knew a week ago, but Trump succeeded in making it look as though he was doing something big before the 100-day mark of his presidency.  What can we learn from this non-event?

Wednesday, April 26, 2017

Wrongful Birth Suits: What's In a Name?

by Sherry F. Colb

In my Verdict column for this week, I discuss the legislation currently pending in Texas to abolish the cause of action for wrongful birth.  A wrongful birth suit is one in which the plaintiff claims that had the defendant done what he was supposed to do (e.g., a doctor notifying a pregnant patient that her fetus shows signs of severe abnormalities), the plaintiff would have terminated her pregnancy and the child would accordingly never have been born.  The plaintiff, if successful, can recover expenses occasioned by the birth of the child whom she would not have had in the absence of the defendant's wrongful conduct (or wrongful omissions).  In my column I discuss the implications of wrongful birth suits, both for issues surrounding abortion and for the symbolic meaning of such suits for people living in the world today who suffer from severe disabilities (of the sort for which the plaintiffs in such suits would have terminated their pregnancies).

In this post, I want to focus on the names that we give the lawsuits at issue, "wrongful birth" or "wrongful life" suits.

Tuesday, April 25, 2017

Trump Is -- Gasp! -- Being Dishonest About the National Debt

by Neil H. Buchanan

It has always been clear that Republicans are situational deficit hawks.  They are perfectly happy to run up huge amounts of debt when their men occupy the White House, and even to leave spending for their wars off of the official accounts.  When a Democrat becomes president, however, suddenly those Republican opportunists claim to be terrified of debt.

It was not surprising, then, that Donald Trump ran on an especially aggressive version of debt obsession, claiming that there was a "magic number" of "24 trillion ... 23 ... 24," one of which he claimed is "the number at which we become a large-scale version of Greece."

The most obvious reaction at the time was to point out that Trump's promises regarding military spending and huuuuge tax cuts (those tax cuts alone adding roughly a trillion dollars per year to the debt) would make it impossible to pay down the national debt, which Trump also promised to do.  But as a candidate, he had fun.  Why would he start to pay attention to reality now?

Monday, April 24, 2017

Hate Speech Is Free Speech, But Maybe It Shouldn't Be

by Michael Dorf

A student group at UC Berkeley invited Ann Coulter to speak. The event was cancelled due to ostensible security concerns in circumstances that led most reasonable observers (including me) to conclude that a substantial part of the reason Coulter was uninvited was the unpopularity of her views. There followed a round of condemnation of Berkeley and the presumably liberal "snowflake" millennial students who can't handle speech that spreads messages they find offensive, with the condemnation coming not only from the right but also from people who strongly disagree with Coulter (e.g., Coulter's fellow Cornell alum Bill Maher).

Enter Howard Dean, who defended Berkeley's rescission of its invitation on the ground that "hate speech is not protected by the first amendment." Numerous commentators correctly pointed out that under existing case law hate speech is protected by the First Amendment, with a Volokh Conspiracy piece by Eugene Volokh laying out the basics effectively.

Dean doubled down, citing a 1942 case, Chaplinsky v. New Hampshire as supposed authority for the view that the First Amendment does not protect hate speech. Dean is clearly wrong about Chaplinsky, however.

And so we learn that a medical doctor who served as governor of Vermont does not know a whole lot about constitutional doctrine. Quelle surprise! This episode would be mildly amusing, were it not for the fact that as a story of ignorance in high places it seems wholly inconsequential when compared to the fact that we have a former real estate developer/reality tv star for a president, and he does not even know how many articles the Constitution contains, much less what any of them says.

Turning back to Dean, we can grant that he was clearly wrong in his description of current case law. But the issue he raised is more complicated than the legal and journalistic establishment seem prepared to acknowledge.

Friday, April 21, 2017

Is It Even Possible to Be Too Hard on Supply-Siders?

by Neil H. Buchanan

The Republican leadership uniformly despised Donald Trump during last year's primaries, fiercely opposing him before finally meekly submitting to his misrule.  Throughout this tragicomedy, however, Trump and his party have always agreed on one thing: the magical effects of tax cuts for rich people.

No matter what concerns Republicans might have had about Trump's anti-trade shouting, or his proud ignorance of foreign affairs, or his very un-Republican track record on social issues -- a record that has not prevented Trump from now supporting the worst excesses of his party's culture wars -- Trump was as solid as a rock on regressive tax cuts and heedless slashing of safety and environmental regulations.

Trump is, in short, every bit as much of a believer in supply-side economics as every other eager Republican has been for the past generation or so.  This is why his decision to turn the page from his growing list of abysmal failures by trying to enact a big change to the tax code has made it important to understand again just what is wrong with the trickle-down version of supply-side economics that Republicans so fervently embrace.

In a number of recent columns, I have offered some fairly brutal assessments of supply-side economics.  I have argued, for example, that "those who genuinely continue to believe in the miraculous effects of supply-side tax cuts represent the triumph of faith over reason."

It is, however, worth stopping to ask whether I am being too hard on the supply-side devotees.  Is support for their theory as weak as I have been saying?  The answer is, if anything, that I have gone too easy on them.  It might well be impossible to be too dismissive of supply-side economics.

Thursday, April 20, 2017

Trump, Syria, Tienanmen, and the Downside of Civilian Control of the Military

by Michael Dorf

In my latest Verdict column, I weigh in on the debate over whether President Trump's April 7 cruise missile strike against a Syrian airbase violated domestic constitutional law and/or international law. Here is the nutshell version: 1) Trump needed but did not receive congressional authorization as a matter of domestic constitutional law, although in that respect his action conforms to a longstanding pattern (in which Congress has acquiesced) of accretion of war-initiating power in the White House; and 2) the action violated the UN Charter because it was not plausibly justified as individual or collective self-defense of states nor authorized by the Security Council, notwithstanding arguments by some scholars (most prominently Harold Koh) who say that humanitarian interventions are legal even absent Security Council authorization. The sorts of arguments made by Koh and other interventionists are contestable on their own terms and could ultimately undermine international law and thus the substantive humanitarian norms that the interventionists seek to protect.

In this post, I want to step back from the immediate controversy and even from the broader legal questions they raise about humanitarian interventions to report on a fascinating conversation I recently had with a Chinese scholar. That has led me to conclude that executive unilateralism is something of a universal problem and that a much-vaunted feature of many constitutions--civilian control of the military--is a double-edged sword.