Wednesday, May 25, 2016

Denying Undeniable Racism

by Michael Dorf

Monday's SCOTUS ruling in Foster v. Chatman--finding that Georgia violated Timothy Foster's right to a capital trial before a jury selected without racial bias--makes no new law. The majority opinion of CJ Roberts methodically parses the trial record to show that Foster made out a prima facie case of racial bias and that the prosecutor's ostensibly race-neutral justifications for using four of the nine peremptory challenges it had to eliminate all of the Black jurors were, not to put too fine a point on it, bullshit. The Chief shows how the prosecutor's story was internally inconsistent and highlights documentary evidence that is pretty damning, such as the following notes:
On each copy [of the venire list], the names of the black prospective jurors were highlighted in bright green. A legend in the upper right corner of the lists indicated that the green highlighting “represents Blacks.” The letter “B” also appeared next to each black prospective juror’s name.
It would have been remarkable had the case come out the other way, except of course it did come out the other way in the Georgia courts. And Justice Thomas dissented, partly on the ground that, as he read the record, the most recent Georgia ruling was not on the merits and thus there was no SCOTUS jurisdiction. But Justice Thomas also thought that his seven colleagues gave inadequate deference to the factual findings of the Georgia courts that there was no racial bias after all.

Over roughly the last three decades, scholars and pundits have sometimes observed that racism in America is not what it once was. Out-and-out Klansmen are a rarity, the argument goes, with institutional racism and unconscious bias as the main problems today. There's some truth to that, but a case like Foster shows that "classical" race discrimination is alive and well.

Perhaps as troubling as the overt racism is the denial (or more charitably, credulity) by people who are not themselves racists. Justice Thomas is not himself a racist, especially not an anti-Black racist, but his acceptance of the Georgia lawyers' and courts' explanations in Foster enables race discrimination. We can even assume that most of the judges and lawyers trying to preserve the conviction in Foster are not themselves racists. Foster did, after all, confess to the murder for which he was convicted and sentenced. Whatever the error charged by the petitioner, these judges and lawyers presumably would have tried to argue that no retrial is necessary. Still, in doing so, there are places that a responsible judge or lawyer does not go.

Is Foster an isolated egregious case? I don't think so. Consider the ruling of a federal district judge granting a writ of habeas corpus in Bennett v. Stirling a couple of months ago. Another court in a state of the former Confederacy--this time South Carolina--affirmed the conviction and death sentence of a Black defendant who contended that his trial was infected by race discrimination. In Bennett, the state courts used double-speak to deny that one of the jurors was racially biased even though, when asked why he voted to convict Bennett, the (white) juror replied: "He's just a dumb nigger." Res ipsa loquitur. Except, apparently, in the South Carolina courts.

But wait, that's not all. As an alternative basis for granting the habeas petition, the federal judge cited multiple occasions on which the prosecutor appealed to the all-white jury's presumed racial prejudice. These included noting (irrelevantly) that the defendant had (apparently consensual) sex with a "blond-headed woman," which, the state argued, did not reveal that said woman was white. In arguing to the jury, the prosecutor called the defendant  a "monster," a "caveman" and a "beast of burden." He said the jury should give the death penalty because otherwise encountering him would be like meeting "King Kong on a bad day." The prosecution denied that any racial imagery was intended or understood.

The federal district court opinion contains a sophisticated discussion of the history of racially loaded comparisons of Black men to apes and monkeys, including (in the official copy but not the version linked above, which is text-only), the following promotional poster from the 1933 movie.

The court notes that when the film was released in Germany it was titled "King Kong and the White Woman." The average South Carolinian doesn't know that, but it blinks reality to deny the existence of the racial stereotype. As a proponent of animal rights, I would welcome the day when comparisons of any humans to other primates (or cows, pigs, or chickens, for that matter) would not carry a pejorative implication, but that day most certainly is not yet here.

To be clear, I'm not saying that all or even many of the lawyers or judges in the South are racists. I am saying that by denying the obvious, they are enabling racial bias to infect the criminal justice system. That infection is pervasive, requiring structural solutions to a structural problem. But while we wait for those, the least we can expect is that when old-fashioned racism rears its head, lawyers and judges recognize it for what it is.

So far, that hasn't happened. The state has filed a notice of appeal in Bennett. The decent thing to do would be to drop it and confess error.

Tuesday, May 24, 2016

Trump in May is Different from Trump in April, But He is Always Scary and Dangerous

by Neil H. Buchanan

What do people in other countries think about the possibility that Donald Trump will be the next President of the United States?  What, for that matter, must they think about a country with a major party that would nominate that particularly absurd demagogue?

I recently returned from a three-week trip to Australia and New Zealand, where I had been invited to give talks about tax policy and the U.S. elections.  Reflecting on that trip and my interactions with people in those countries allows me to take a bit of a step back from the day-to-day news cycle.  Even though I remained completely engaged with U.S. news sources while I was abroad, being so far away from home was still enough to give me some perspective.

It is possible now to think back on what I was thinking as I left the U.S. in late April, as opposed to where things stand today.  The picture has changed so completely, so quickly, that it is necessary to remind myself that it was not even four weeks ago that I boarded the airplane at Dulles Airport.

The professional aspects of the trip involved five speaking engagements.  (Actually, I also gave a seminar at Monash University in Melbourne, at which I discussed the forthcoming Buchanan-Dorf article in which we defend the independence of the Federal Reserve.  But that was a one-off.)  The formats varied, from a discussion with tax lawyers over dinner at a pub near the University of Melbourne, to the usual academic seminars with social scientists and legal academics (at the University of Tasmania, Victoria University of Wellington, and the University of New South Wales in Sydney), to a large public lecture co-sponsored by the University of Auckland and a national New Zealand law firm.

Although these talks were in different venues with different types of audiences, the reactions at each place boiled down to a few basic questions: How did this happen?  How bad would Trump really be?  And could he really win?  It was amazing how much things changed just in the short time that I was there, such that my presentation had to change fairly significantly even over the space of a few days.

The biggest change in the overall story happened only a day before my first speaking engagement.  Whereas I had been prepared to talk about the possibility of a brokered Republican convention and possibly a draft of someone like Paul Ryan, or the possibility of third-party candidacies, Trump's May 2 win in the Indiana primary ended all of that speculation almost immediately.  Trump was the nominee-to-be, and that news reverberated to the other side of the world.  It still made sense to mention Ted Cruz and John Kasich in my May 4 and May 6 talks, but by May 9, they were not even worth using as "remember them?" contrasts to Trump.

I had written the title of my speech, "The U.S. Presidential Election, Taxes, and the Possibilities for Prosperity," a few months before the trip began.  In light of the unexpectedly early end to the Republican nominating contest, however, I had to tell my audiences that the more accurate title would be something like, "The U.S. Presidential Election and the Possibilities for Catastrophe, with a Few Thoughts on Tax Policy If There Is Enough Time."  Tax policy is important, but the political upheaval was what mattered most.

These audiences seemed rather well informed about the U.S. election, at least in terms of the latest news.  Unfortunately, the U.S. media seem to have exported the annoying narrative that equates Trump and Bernie Sanders as equally extreme populists on the right and left.  That meant that I had to explain the differences in kind and degree between Trump's extremism and Sanders's slightly-to-the-left-of-his-adopted-party response to long-term economic stagnation.  As it turned out, the audiences understood that difference quite readily, especially because they understand just how ideologically non-extreme the Democratic Party is in comparison to left-leaning parties in similarly wealthy countries.  If anything, it remains a mystery why the response on the left in the U.S. has been so mild.

Even so, it is understandable that people wanted to know what Trump would do if elected.  To which the answer was, of course, that no one knows.  I told my audiences that I had written down the few vague statements that Trump had made about fiscal policy, but each day brought with it new contradictions and flip-flopping from Trump.  Discussing any details at all seemed rather pointless.  Trump's jaw-droppingly insane comments about repudiating government debt, and his even crazier walk-back of those comments, had everyone's heads spinning during Week Two of the trip, but by Week Three those were almost-forgotten historical artifacts.

In the end, the difficult point that I tried to make in various ways is that, although no one knows what Trump would do, we somehow know that his decisions would be dangerous and foolish.  Even when he vacillates on the details of the anti-immigration wall, or says things that suggest that maybe he would not order the U.S. military to commit war crimes (embedded within a comment in which he seems to say that he would simply redefine war crimes), there is little doubt about Trump's default preferences.

Similarly, although he occasionally says things about taxes that sound vaguely progressive, he continually circles back around to endorsing huge, regressive tax cuts.  And if anyone could lead us into a genuine debt crisis (not the imaginary one that Republicans like Paul Ryan continue to predict will surely happen any day now), it is Trump.

Indeed, I heard a very interesting theory from an academic who attended one of my talks.  He noted that Trump can only be elected in an environment of genuine crisis, but Trump himself can create the crisis that could get him elected.  (This theory has subsequently shown up in some analyses in the U.S. press as well.)

After all, Ronald Reagan's accidental presidency would not have happened without the Iranian hostage crisis, which truly changed history.  There is evidence that the Reagan campaign intervened in the hostage crisis to try to prevent the hostages from being released before Election Day in 1980.  However, there is no evidence that Reagan or any of his supporters somehow created the hostage crisis in the first place.  Trump, by contrast, could scare investors enough to induce a market plunge, which would then create the chaos on which his candidacy could thrive.

I do not see any evidence that Trump is consciously pursuing such a strategy, at least so far.  But it is notable that his candidacy continues to be a personality-driven event, with positions on policy changing on a daily basis.  Deliberately or not, the closer he appears to be to winning, the more likely it is that he could benefit from a truly vicious cycle of market-driven panic.

Notwithstanding how genuinely scary Trump's candidacy continues to be, the most notable change between the political discussion before I left on my trip and now is that he has already become somehow normalized.  Senator Lindsey Graham is now supporting Trump, and John McCain is being oddly positive.  In late April, the conventional wisdom was that a Trump nomination would fracture the party.  Now, it is just a matter of watching the sheepish (in both senses of the term) Republicans mostly fall in line.

The next five months or so will show just how willing people are to vote for a racist, misogynistic xenophobe.  If the last four weeks are any guide, it might not matter that Trump is somehow both content-free and substantively awful.  Or, we will learn that the demographics of the U.S. have already moved us to the point where Trump flames out badly.  It should not even be a possibility that Trump could win this election, but here we are.  Through it all, however, it's good to be home.

Monday, May 23, 2016

Trump's SCOTUS List and the Garland Nomination

by Michael Dorf

What, if anything, is wrong with a presidential candidate releasing a list of the names of his or her prospective SCOTUS nominees, as Donald Trump recently did?

The most obvious objection to the list is that it politicizes Supreme Court nominations. There is a naive version and a sophisticated version of this objection. The naive objection says that injecting prospective SCOTUS nominees into a presidential election campaign politicizes the appointments process. No one who is remotely sophisticated makes this objection in this form, but it is tempting for people who want to view Trump's list as nothing special to respond to the naive objection. For example, a HuffPo story notes the connections of people on the list to current Republican senators, which elicits from attorney Ken Gross this nothing-to-see-here-so-move-along response: “What else is new? ... You do things to ingratiate yourself to senators and others to garner their support. ... It’s politics as usual." To similar effect, the same story quotes George Washington University political scientist Sarah Binder grudgingly admitting that perhaps the Trump list marks a difference in degree from prior politics around judicial appointments but denying any difference in kind.

It strikes me that Gross, Binder, and others who point to the fact that politics already infuses judicial appointments have missed the point of the objectors. The question is not whether it is legitimate for a president or presidential candidate (or for that matter a Senator or a Senate candidate) to take politics into account in considering whom to nominate (or confirm) to a justice-ship or judge-ship. Just about everyone agrees that this is permissible and universal. The question is whether any particular means are or ought to be off limits.

Surely some means are off limits. Consider the attempt by former Illinois Governor Rod Blagojevich to sell a nomination to fill a vacant Senate seat for money laundered either through a non-profit organization or a campaign contribution. Last December, the 7th Circuit ruled that Blagojevich could not be convicted for attempting to exchange one appointment for another (which the court characterized as a familiar and legal form of logrolling), but that outright sale was criminal. Outright sale of a Supreme Court seat is likewise illegal.

I'm only invoking Blagojevich's case to show that there is a line, not to say that Trump went over it. Trump's list is pretty clearly on the legal side of the line, in the sense that it is not bribery or extortion. He is telling Republican senators and conservative voters that they can and should support him in exchange for his nominating a conservative to the Court: that's logrolling, not extortion or bribery.

But to say that Trump didn't commit a crime by listing prospective nominees is not to say that he did nothing wrong. The sophisticated version of the politicization objection says that there is something wrong with naming specific prospective appointees. Presumably that something is that it turns the selection of a Supreme Court justice into something like an election.

There are things to be said both for and against judicial elections. I tend to find the arguments against judicial elections stronger, but many states hold judicial elections, and within extremely broad limits (as articulated in the Caperton case), an elected judge can be an impartial judge. But the Constitution provides for indirect selection, life tenure, and salary protection for Article III judges on the theory that politics should enter into the selection of judges only indirectly. A prospective president who names particular individuals undermines that insulation from electoral politics.

How good is that objection? The more names that are on the list, the less serious the worry. Thus, by putting out a list of 11 judges Trump would consider, without promising that he wouldn't go beyond the list, Trump seems to have fallen short of violating the spirit of the appointments process. The non-exclusive list of 11 is simply an unconventional way for Trump to promise to nominate deeply conservative (white) people to fill the current and any future vacancies. Indeed, the very indeterminacy of the project (coupled with Trump's record of mendacity) has led some Trump-wary conservatives to a quite different worry; they don't fear that Trump has promised particular conservative nominees; they worry that he will break his promise.

If Trump's list itself does not threaten the spirit of the constitutional appointments power, this brief exploration of what might be wrong with it leads to a different conclusion about Judge Garland. During the general election campaign, the Democratic nominee will undoubtedly be asked whether he or she will re-nominate Judge Garland should the vacant seat remain vacant in 2017. In the seemingly unlikely event that Bernie Sanders is the nominee, there is an easy answer: not unless there are adequate assurances that a Justice Garland would vote to overrule Citizens United, which Sanders has declared would be a litmus test for his nominees.

For Hillary Clinton, the question is trickier. On one hand, merely equivocal support for Judge Garland could look like disloyalty both to Judge Garland and to President Obama. On the other hand, a President Clinton might want to use the prospect of the Supreme Court vacancy to energize constituencies that are outraged by the Senate's inaction on Garland but only lukewarm towards Garland himself.

The Trump list provides a good way for Clinton to dodge the question. If I were writing her talking points, I would script the following answer:

Under our Constitution, the president has the power to nominate on his or her own, and to appoint with the advice and consent of the Senate. The failure of the current Republican Senate to do its job by holding hearings on President Obama's nomination is disgraceful. But Donald Trump is also attacking our constitutional traditions. When he announced in advance his list of nominees--which included no people of color and only right-wing ideologues--he showed disrespect for our Constitution by trying to convert a presidential election into a Supreme Court election. I'm not going to follow that dishonorable path by naming any particular individual. Etc.

Clinton campaign: You're welcome. 

Friday, May 20, 2016

Fed Courts Exam 2016: Unexpected Consequences for President Sanders

by Michael Dorf

As per my custom, I am posting the Federal Courts exam I administered this past semester. It features President Bernie Sanders. This is not an endorsement. In order to make the scenario realistic, I needed an anti-NAFTA president (for which Donald Trump would also have worked) but also one who is otherwise internationalist (for which Trump would not have worked). The instructions told students they had eight hours to complete the exam, and it was take-home, open-book, with a 2500-word limit. I also asked students to assume that Hughes is a state of the U.S. The three questions are of equal weight. Submit answers in comments, but I'm done grading, so I won't comment further myself.


The following facts should be assumed for questions 1 and 2.

In November 2016, Bernie Sanders is elected president, and Democrats win very narrow majorities in the House and Senate (50 Democrats plus Vice President Elizabeth Warren). During the lame-duck session between the election and the new Congress taking their seats, the Senate confirms Merrick Garland to the Supreme Court. On the first day of its session in January 2017, the Senate changes the cloture rule. Now a simple majority is all that is required to end debate on ordinary legislation and on all appointments.

The following additional facts should be assumed for question 1 only.

On his first day in office, President Sanders issues an executive order nullifying the North American Free Trade Agreement (NAFTA). In a signing statement accompanying the order, President Sanders announces “this Administration believes in international law, but international law for the People, not the billionaire class. Although I am withdrawing from NAFTA because it favors multi-national corporations, I am also strengthening U.S. support for international cooperation.” True to his word, in February 2017, President Sanders reaches a multilateral agreement with the heads of state of 34 countries, including Mexico and Canada. The agreement, which is titled “International Law Uniformity Mechanism Agreement” (ILUMA), provides that it “shall become effective when confirmed as effective among the parties so confirming the agreement by their respective national mechanisms.”

ILUMA further provides that “any member country, and any person who is a citizen or subject of a member country, may appeal any adverse ruling by the highest judicial authority of a member country with regard to the validity or application of any international agreement to the ILUMA Court, which shall issue rulings that are fully binding on the courts of the member countries.” ILUMA specifies that the ILUMA Court is a 7-member court, with members each serving for 12-year terms, and chosen by lot from a list composed of one nominee per member country (except that no country may have more than one member at any time).

President Sanders submits ILUMA to the Senate for its advice and consent. On a party-line vote, ILUMA receives support from a majority but fails to garner the 2/3 vote needed to approve a treaty. President Sanders then changes course and re-submits ILUMA to the House and Senate as ordinary legislation. It passes under the title “ILUMA Implementation Act,” and President Sanders signs it. The other signatory countries also approve ILUMA. The first ILUMA Court is chosen. It includes no U.S. members.

Meanwhile, in April 2017, President Sanders imposes a 30% tariff on all automobiles assembled outside of the United States. General Motors (GM), a U.S. corporation headquartered in Michigan and incorporated in Delaware, assembles thousands of its vehicles in Mexico and Canada for sale in the United States. GM sues the Secretary of Commerce in the Court of International Trade (CIT), an Article III court. GM argues that as applied to its Canadian and Mexican-made cars, the tariff violates NAFTA. GM wins, but the ruling is reversed by the Federal Circuit.

The case then reaches the Supreme Court, which holds 5-4 that the tariff is valid because President Sanders had the authority to nullify NAFTA and validly did so. The Supreme Court further holds that once President Sanders invalidated NAFTA, the NAFTA Implementation Act became inoperative because “there was nothing to implement.”

GM appeals to the ILUMA Court. After briefing and oral argument, the ILUMA Court by a 4-3 vote reverses. It first finds that GM can take advantage of ILUMA “because a corporation is a person under U.S. law, see 1 U.S.C. § 1.” The ILUMA Court then finds that “under U.S. constitutional law and federal common law, a president may nullify a treaty but not a congressional-executive agreement such as NAFTA, which is in the nature of an ordinary statute, and thus can only be nullified by repeal.” Accordingly, the ILUMA Court holds that the tariff thus violates NAFTA and the NAFTA Implementation Act. The ILUMA Court remands to the U.S. Supreme Court “for further proceedings consistent with this judgment.”

The case is now back in the U.S. Supreme Court. You are a law clerk for Justice Garland. In the prior proceeding, Justice Garland voted with the majority. He does not know whether he is bound by the ILUMA Court’s ruling.

Question 1. Write a memorandum setting forth the relevant considerations and how you think they should be resolved.

The following facts should be assumed for question 2 only.

In May 2017, Congress passes and President Sanders signs the Corporations Ain’t People Act (CAPA), which contains a variety of provisions governing campaign finance and other subjects. As relevant here, CAPA also contains the following provision.

Sec. 401. Notwithstanding any other provision of law, no court in the United States shall have jurisdiction over any claim by any corporation or an agent acting on behalf of any corporation seeking injunctive or declaratory relief against a state or federal official on the ground that said official is under a duty to comply with federal law. If any portion or application of this provision is found unconstitutional, the remaining portions or applications shall be severed and valid.

Although sparse, the legislative history of Sec. 401 of CAPA indicates that its sponsors sought to “eliminate Lochner-type Ex Parte Young actions and Section 1983 actions by big corporations, thus preserving court access for natural persons.”

In June 2017, under lobbying pressure from the large conventional agricultural sector in the state, the Hughes legislature passes and Hughes Governor PeƱalver signs the Protecting Our Consumers From Insects Act (POCFIA). The Act requires that “select produce offered for sale to consumers in Hughes be labeled in bright red letters in at least 20-point type with the words ‘Beware of Bugs and Bug Parts.’ ” It further requires that the packaging on such produce also must prominently display the following image of a locust in an area that is at least four square inches:

The definitional portions of POCFIA make clear that conventionally grown produce—i.e., produce grown using insecticides—is not subject to the Act’s labeling requirements. However, all produce that would qualify as “organic” is subject to the requirements.

The penalties provision of POCFIA states that “any person who sells produce not properly labeled under this Act shall be liable for a fine of up to $10,000 and/or imprisonment for up to five years” for each improperly labeled item sold, with penalties to be assessed per item, fines to be cumulative, and sentences to be consecutive.

Sarah Jane Hawkins and her immediate family members are the only shareholders in Hawk Farm, Inc., a closely held corporation that operates Hawk Farm. Hawk Farm grows organic strawberries on the Hawkins family farm in Hughes. Hawk Farm sells approximately $300,000 worth of strawberries annually through grocery stores and restaurants throughout Hughes. Upon the passage of POCFIA, Hawkins and Hawk Farm, Inc. sue Hughes Attorney General Regina Blume in federal district court in Hughes, invoking 28 U.S.C. § 1331 as the basis for jurisdiction, and bringing causes of action under Ex Parte Young and 42 U.S.C. § 1983.

The complaint alleges that POCFIA is preempted by the federal Organic Foods Production Act, 7 U.S.C. §§ 6501 et seq., both expressly by 7 U.S.C. § 6507 and impliedly. The complaint also alleges that POCFIA compels speech in violation of the First Amendment.

With respect to jurisdiction, the complaint alleges “in the alternative that Sec. 401 of CAPA was never intended to apply to small family farms like Hawk, or it is facially unconstitutional, or it is unconstitutional as applied.”

Blume moves to dismiss the complaint on the ground that there is no jurisdiction in light of Sec. 401 of CAPA, which, her 12(b)(1) motion contends, “applies by its plain language and is valid both on its face and as applied.” You are a lawyer for Organics for Everyone, a non-profit organization that promotes organic produce. You are working pro bono for Hawkins and Hawk Farm, Inc.

Question 2: Write a memorandum candidly assessing the chances that the district court will accept jurisdiction over the lawsuit.

Question 3: Concurring in the judgment in Brown v. Allen, 344 U.S. 443, 537 (1953), Justice Jackson wrote: “It must prejudice the occasional meritorious application to be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.” Do you think that the path of the law of habeas corpus as a collateral remedy in the ensuing 63 years vindicates Justice Jackson’s concern? Why or why not?

End of Exam