Monday, September 25, 2017

Faith, Wedding Cakes, and the Rule of Law

By Eric Segall

Everyone in the United States may worship their own God, multiple Gods, or no God at all.  We have the right to believe anything we want without fear of government reprisal.  We also generally may refuse to communicate government messages with which we disagree (warnings on dangerous products are an exception to that rule). We are also, in the majestic words of the great Chief Justice John Marshall, “a government of laws not men.” This term the Supreme Court is hearing an important case implicating these fundamental principles.

Trump on Compelled Speech: Unconstitutional for Bakers; Fine for NFL Players

by Michael Dorf
(cross-posted on Take Care)

In the Masterpiece Cakeshop case currently pending before the SCOTUS, the United States has filed an amicus brief in support of the cakeshop, arguing that "an individual’s right to speak or remain silent according to the dictates of his or her conscience" is so powerful that it should prevail over the government's interest in enforcing its public accommodations law. At a recent rally in Huntsville, Alabama, President Trump did his best to undermine the federal government's opposition to compelled speech by expressing the view that a professional athlete who quietly protests police brutality by taking a knee during the playing of the national anthem rather than participating in the patriotic display is a "son of a bitch" who should be fired for his temerity. He doubled down on this view via Twitter.

Can Trump's Justice Department's position on Masterpiece Cakeshop be reconciled with his own views about professional athletes? By that question, I do not mean to ask whether Trump had in mind some principle that distinguishes his administration's support for the free speech right of a baker to refuse to bake a cake for a same-sex wedding from an athlete's ostensible non-right against compelled participation in the national anthem. Presumably Trump had nothing in mind other than his usual toxic cocktail of rage and ego. What I mean is whether the positions can be reconciled. And as long as I'm asking that question, I'll ask the converse question for liberals like myself, who think that the athletes should not be disciplined for taking a knee but that the baker can be required to comply with the public accommodations law.

Saturday, September 23, 2017

Graham-Cassidy and the Spending Clause

by Michael Dorf

Yesterday I ran a piece on Take Care arguing that the funding formula of Graham-Cassidy violates the requirement in the SCOTUS Spending Clause cases that any conditions placed on states' receipt of federal funds must be "unambiguous." I meant to cross-post it here but then Sen. McCain announced he would vote against the bill, and so I concluded that there was no point. But it looks like Graham-Cassidy is not fully dead yet and might even come back to life in the next few days. Accordingly, I am hereby promoting my argument in the hope that, at the margin, it might affect the debate over the bill--which is plenty bad quite apart from my contention that it is unconstitutional.

Friday, September 22, 2017

Republicans Keep Lying About Taxes, and Reporters Keep Helping Them Do It

By Neil H. Buchanan

Whether or not Senate Republicans finally succeed in taking health care away from tens of millions of Americans, their next big target is the tax code.  And although the mainstream press's coverage of the new health care repeal bill has been appropriately (given the facts) harsh, journalists on the tax beat continue to give Republicans far too many passes.

As I pointed out in a column last month, business reporters in particular seem all too willing to assume that Republicans' favorite talking points about taxes are all true, and that we are only arguing over the details.  I noted, for example, that one reporter for The Washington Post -- a newspaper that is rarely accused of being in the bag for Republicans -- was perfectly happy simply to assume a direct causal relationship between the size of any tax cut and the rate of economic growth, when evidence of such a relationship is weak at best.

Unfortunately, the careless reporting continues, not just from that one reporter at The Post but among her colleagues as well.  Some of their errors might seem minor, but the larger impact of those accumulated errors is to give Republicans cover to pass regressive tax cuts.  That might not be what the reporters intend, but the danger is very real.

Thursday, September 21, 2017

Socialism or Federalism? More Like Bribery and Revenge

by Michael Dorf

As the latest effort by Republicans to repeal and replace the Affordable Care Act races against the calendar for a showdown vote, one of its sponsors, Lyndsey Graham, has declared that America faces a choice between "socialism or federalism." The characterization is preposterous, of course. If the ACA represents socialism because it includes subsidies to individuals to buy health insurance on the exchanges and increases federal funding to Medicaid--a program administered by states--then surely Medicare--a federally funded and administered program is even more clearly an instance of socialism; and yet, Graham does not oppose Medicare.

Nonetheless, there is a non-trivial chance that Graham-Cassidy will become law, thanks in part to the possibility of support from John McCain, who of late has been sounding less maverick-y than he did over the summer. Given some cover by Arizona Governor Doug Ducey's announcement that he supports stripping health insurance from millions of Americans, McCain is apparently now tempted to support his BFF Graham, despite his preference for "regular order" and, one suspects, despite the desire to inflict some more pain on President Trump.

To be sure, even if McCain votes for Graham-Cassidy, it could still fail, thanks to the defection of Rand Paul, who regards the bill as insufficiently cruel. Thank heavens for principle!

Assuming Paul holds fast, the GOP will need to switch either Susan Collins or Lisa Murkowski from a no to a yes. How might leadership do that? Collins is probably not in play. Threats against Murkowski backfired in July. Now the strategy for winning her over appears to be bribery.

Wednesday, September 20, 2017

Unconscientious Objection

by Michael Dorf

My latest Verdict column discusses the recent decision of the Israel Supreme Court giving the government a year to develop a plan to substantially boost participation by Haredi (ultra-Orthodox) men in the military or face a default solution of making all such draft-age men serve. The column is mostly about the relation between judicial review and legislation in comparative perspective. I claim that the difference between so-called "soft" judicial review in Canada and the UK versus "hard" judicial review in the US is not nearly so sharp as commonly assumed. In all of these countries (and Israel), there exist formal mechanisms by which legislatures may resist unpopular court rulings, but informal norms and political pressure make the formal mechanisms very difficult to use.

Here I want to say a word about the seeming strangeness of the underlying claim in the case:. The Haredim claim exemption from military service on the ground that they serve the state by studying holy scripture, thus bringing Divine protection. To be sure, in last week's ruling and a similar one in 2012, the Israel Supreme Court rejected this claim as a basis for a blanket exemption. Nonetheless, the fact that it was made at all--and the fact that the court credited it at all in allowing for some sort of accommodation rather than simply subjecting Haredim to the same service obligations as other Israelis--is on its face peculiar. It underscores that while Israel protects free exercise of religion, it is not a secular state. And yet, the claim of the Haredim is not so different from the logic that underwrote a US policy that eventually was changed during the Vietnam War: draft deferments for college students.

Tuesday, September 19, 2017

NeverTrump Conservatives In a Futile Search For Relevance

by Neil H. Buchanan

One of the depressing parlor games of the post-November 8 era has been trying to explain how the presidential election was even close enough for Donald Trump to wriggle his way through the eye of the Electoral College needle.  The game always involves a writer offering some theory or other and ends with: "And that's how you get Trump!"

Everyone has played the game, and I am no exception.  In some ways, it is a necessary and healthy response to a shocking electoral outcome.  We really do need to know how a patently unqualified con man, a habitual liar who disqualified himself from the presidency many times over, somehow rode his needy narcissism and ignorance into a most unlikely and disastrous presidency.

What we do not need are the pat answers that essentially boil down to each commentator seizing on his favorite issue and saying that Trump's victory proves whatever he has been saying all along.  This is the post-Trump equivalent of former House Republican Leader Tom DeLay's infamous declamation after the 9/11 terrorist attacks that "[n]othing is more important in the face of a war than cutting taxes."

For people who are interested in doing more than riding hobbyhorses, the post-election discussion can be interesting and important.  And it can change minds.  Many people on the left (including me), for example, have spent much of our lives decrying the dog-whistles of racism on the right, but we truly did not believe that the country was as racist (or misogynistic or xenophobic) as it turned out to be last November.  It was an unpleasant surprise, but we need to update our views in the face of new evidence.

But there still are plenty of people who are trying to shoehorn everything that they have always believed into the effort to explain why Trump is now president.  In small ways and large, their efforts are revealingly empty.  NeverTrump conservatives are an especially rich source of examples of failed attempts to use Trump's rise to somehow justify the unpopular ideas that they have been pushing for years.

Monday, September 18, 2017

Wedding Cakes, Urinals, and Other Art

by Michael Dorf

In his post for this blog over the weekend, my friend and co-blogger Eric Segall discusses how the record in the Masterpiece Cakeshop case before the SCOTUS is unclear in a way that could preclude the Court from deciding the merits. En route to that conclusion, Prof. Segall explains why, in his view, the case could be seen to present a difficult line-drawing task. At one end of a spectrum are non-expressive goods and services: Purveyors of rental chairs and tents as well as limousine drivers can presumably be obligated to offer their services on a non-discriminatory basis without raising any First Amendment issues. At the other end, the government should not (absent a very good reason) be able to compel a wedding singer to perform a particular song or a poet to recite a particular poem, nor (as Prof. Segall says in answer to a query in the comments), should the government be able to compel the composition of a song or writing of a poem (absent a very good reason). Somewhere in between these end points is the baking of cakes and the taking of photographs.

Prof. Segall brackets the question whether enforcement of an antidiscrimination law counts as a very good reason (or, in technical terms, satisfies strict scrutiny), as shall I for the moment. Here I want to problematize but then perhaps resuscitate his suggestion that there exist any goods or services that are not expressive. I shall do so in celebration of the 100th anniversary of Marcel Duchamp's "Fountain," which, in 2004, was voted the most influential work of modern art.