Friday, April 20, 2018

How to Live Greatly in the Law

by Michael Dorf

Last night I had the honor of delivering some brief remarks to the soon-to-be-graduated JD class of 2018 at Cornell Law School's 3L Dinner. On most such occasions I speak off the cuff. For this one I chose to write out my speech. I deviated a bit from my prepared remarks, but not that much. They follow:

Thursday, April 19, 2018

Was I Wrong About the 'Sweeping-ness' of the Tax Bill?

by Neil H. Buchanan

Last Fall, as the tax debacle was playing out, I frequently mocked the media for adopting the Republicans' spin that the tax system would be fundamentally changed by the bill that Republicans  eventually rammed through Congress (without hearings).  Republicans talked as if they were going to change the very nature of the tax system, but it seemed obvious that they were going to muck around with the system simply to shovel ever more money to rich people and corporations.

That is, indeed, what happened.  The final bill was a mess, and its regressivity is breathtaking.  Even so, it seemed that reporters had received a memo ordering them to use the word "sweeping" whenever they talked about the Republicans' tax bill.  As early as September, this was already a tired description, but "sweeping" reform is what the Republicans said they were providing, and the mainstream media obediently played along.

Despite the horrible final legislative product, the press is still uncritically repeating even the most absurd Republican talking points.  For example, a Washington Post reporter wrote this week that "GOP leaders and lawmakers used the opportunity of this week’s tax deadline to make the point repeatedly that this is the last year that Americans filed their taxes under the old tax code and that next year they will encounter a new, simpler and more favorable set of tax rules."

Whatever other virtues one might be able to imagine in the Republicans' bill, being simpler is not one of them.  The evergreen promise to "put it all on a postcard" was once again dropped when convenient, and the system is even more complicated than it was before.  Yet a reporter at a major newspaper cannot even be bothered to note that when GOP leaders "make the point" that next year's rules are "new, simpler and more favorable," their point is not true.

But my concern today is not with the continued free pass that Republicans have received from the press.  Instead, I want to ask whether I was too quick to reject the idea that Republicans were doing something "fundamental" or "sweeping" when they passed their stroke-the-rich tax bill.  It is possible that they made some de facto fundamental changes that were not immediately obvious -- and that the bill is even worse than than it initially seemed.

Wednesday, April 18, 2018

Why Do Judicial Nominees Hide Their Views About Abortion?

by Michael Dorf

In my latest Verdict column I discuss the Senate Judiciary Committee hearing last week on the nomination of Wendy Vitter for a federal district court judgeship. Vitter refused to answer the question whether she thought Brown v. Board of Education was rightly decided. I explain that this is probably not a sign that Vitter is a closet segregationist but instead a rational strategy for avoiding having to say whether she thinks that Roe v. Wade was rightly decided.

Skeptical readers might wonder why Vitter feels the need to avoid expressing a view about Roe, in light of two facts: (1) Given her past statements about abortion, it's obvious that she thinks Roe was wrongly decided and would undoubtedly construe abortion rights as narrowly as possible in any case involving them, even if she would not expressly defy SCOTUS precedent; and (2) Republican Senators, who hold a majority of the chamber, would be happy to confirm a nominee with Vitter's views about abortion. For them, this is a plus rather than a minus. Any pro-choice Senator who would vote against a nominee who expressly said that she thinks Roe wrongly decided but would vote to confirm Vitter based on Vitter's reticence is, not to put too fine a point on it, a naive fool.

Nonetheless, reticence on abortion continues to be a characteristic feature of judicial confirmation hearings, regardless of whether the nominee is a pro-life Republican or a pro-choice Democrat. Why?

Tuesday, April 17, 2018

Second in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (Michael Cohen)

by Diane Klein

The story swirling around Trump personal attorney Michael D. Cohen is unfolding so quickly that it is almost certainly too soon to say much that is definitive about it.  What is clear, however, is that following the FBI raid on his office, home, and hotel room (at the Loews Regency hotel on Park Avenue, his temporary digs during an apartment renovation), America is getting a perhaps much-needed lesson in the contours of attorney-client privilege, the crime-fraud exception, and the attorney-client relationship more generally.

Will Justice Gorsuch Give us a June Surprise?

By Eric Segall

The Justices who sit on the United States Supreme Court are flesh and blood people too.  Many court commentators, scholars, and pundits often forget that the Justices are flawed just like the rest of us and sometimes act in accordance with their feelings as much as what they perceive the law to require.  It is possible that for reasons having little to do with the law but a host of other factors, Justice Neil Gorsuch may surprise many people in an upcoming important case involving the alleged free speech rights of public-sector union employees.

Monday, April 16, 2018

Presidential Overreach and Supposedly Excessive Spending

by Neil H. Buchanan

Will Donald Trump induce his pliant congressional Republican allies to turn him into even more of an autocrat?  Last week, I discussed reports that Trump is channeling his inner Nixon once again, this time trying to impound funds from the most recent spending bill.  Essentially, Trump wants to be able to cancel items in that bill, even though he signed it, because he did not like all aspects of the new law.

I will summarize the mechanism for rescinding funds in a moment, but it is important to note up front that this is probably a dead issue, at least for now.  Politico reported two days after I published my column that "Republicans who helped craft the legislation are in open revolt" against the idea of allowing Trump to cancel some of its provisions.  Even so, we should remember that all bad ideas seem to come back from the dead in the Trump era.  To take but one example, his absurd border wall simply will not die.

Whether or not Trump is ever able to overcome this purported revolt -- or if he even remembers the issue at all -- it is notable that the initial idea of allowing Trump to impound funds found a ready enabler in House Majority Leader Kevin McCarthy.  Apparently, McCarthy has been trying to kiss up to the hard right anti-spending caucus in his party, all of whom are quite upset about the recent bill.

And that was before we found out that Paul Ryan would be leaving the Speaker's chair at the end of this year (or sooner).  McCarthy is about to get a do-over in his flailing efforts to become Speaker, and he is certainly willing to make it clear to everyone that he will happily do whatever Trump wants him to do.

Here, I want to discuss how presidential impoundment of funds fits into the broader story about federal spending, in particular the false ideas that both parties in Congress are too prone to spend money and that only a strong president can intervene and keep both parties honest.  As one might imagine, even arguments for enhanced executive power that might sound appealing in the abstract are less appealing at a time when saying, "Let us give the president more power," means "We're about to give Donald Trump more power."

Friday, April 13, 2018

Are Electorally Targeted Tariffs a Worrisome Form of Foreign Interference?

by Michael Dorf

Judged by recent stock market volatility, investors keep changing their minds about whether a genuine trade war--with its attendant reduction in overall economic activity--is in the offing. Even if Chinese concessions on technology transfer and tariffs enable us manage to avert a trade war, however, one feature of the heretofore-discussed retaliatory measures by US trading partners warrants consideration, because it poses a question about the legitimate scope of international politics, not just economics. It was widely reported that in choosing products for retaliatory tariffs in response to the Trump administration's announcements of tariffs first on steel and aluminum, and then on a wide range of Chinese products, Chinese government officials sought to concentrate the pain for maximum political effect. Similar efforts were under way by government officials in other countries when it looked like the steel and aluminum tariffs would hit them.

Thursday, April 12, 2018

Ryan's Wonderfully Selfish Retreat

by Neil H. Buchanan

In my Dorf on Law column earlier this week, I referred to "House Majority Leader Kevin McCarthy (the man who, by the way, would have been Speaker of the House if he could only have shut up about the Republicans' real reason for pursuing the Benghazi inquisitions)."  It was because of McCarthy's loose lips that Paul Ryan became Speaker in late 2015.

Little did I know that, less than a day later, McCarthy would be back in the running for the Speaker's position -- or, more likely, House Minority Leader -- when the man who displaced him shocked Washington by announcing his retirement.

Yes, Paul Ryan is walking away at the end of 2018.  He has provided plenty of material for people like me to write about over the years, but he will not be missed.  I expect to write a few additional columns about specific Ryan-related policy matters before he truly goes away, but for now I will focus on how his retirement reflects on him and exposes how his self-regard supersedes any of his supposed principles (even the principle of partisanship).