Phone Scams, the IRS as Bogeyman, and Republican Opportunism

by Neil H. Buchanan

Last week, I retrieved a voice mail message from my home telephone line.  The speaker sounded as if English was his second language, and it was clear that he was reading the following words:

"Hi, this is Officer Ron [or maybe Loren?] Schneider [or maybe Snyder?] from the IRS Department.  The reason for this call is to inform you that the IRS has issued an arrest warrant against you, and your physical address is under federal investigation.  So call me back to get the detailed information about your case.  My call-back number is 646-630-8992.  I repeat, it's 646-630-8992.  It's very important important we hear from you today.  Thank you."

I knew that it was some kind of scam as soon as I heard the words "IRS Department," which is as much of a tip-off of an ill-informed con artist as Ted Cruz's "IRS Code" nonsense.  A quick reverse phone lookup on whitepages.com confirmed that this is a known scam, with my entry of that phone number producing the following warning: "Scam or Fraud, Flagged as Irs Scam."  Mystery solved.  Even so, this incident brought up a few thoughts about the nature of these scams as well as the Republicans' ongoing attacks on the IRS.

I conferred with a couple of friends about that voice message, and one friend -- OK, it was Professor Dorf -- told me that both he and his father have received similar calls on their landlines.  One reasonable theory is that the scammers call landlines as a means of targeting only old people.  (Let's face it: Whether or not a person has a landline is a very good sorting mechanism for age.)  Going after old people is creepy, of course, but preying on the weak and especially the old is what scammers have done for as long as there have been scammers.

Although that message was obviously part of a scam, it was not obvious how the scammers intended to make their money.  Were they going to say that there had been an audit?  Interestingly, Professor Dorf had followed up on the call after he received such a voice mail.  Here is Professor Dorf's recollection of his call:

Answer: IRS.

Me: Hi. Can you tell me where I can get a form 1040EZ?

Answer: What?

Me: This is the IRS, right?

Answer: Yes. Do you want to pay your bill now?

Me: No. I want to file my taxes. How do I get a 1040EZ?

Hangup.

So, I am almost disappointed to say, there was nothing sophisticated here at all.  Presumably, if someone returned the call and said that she wanted to pay her bill, she would be told to pay some random dollar amount, and there would then be a script to deal with anyone who said that the amount was too high.  It was simple: Give us money, because we're the IRS (Department).

This call, again, was obviously not from the IRS, not just because of the weird word choices, but simply because the IRS would never do anything like this over the phone, and the Service would never, ever reach a point of issuing an arrest warrant without having gone through an incredible amount of due process.

However, this is not something that most people know, and claiming to be the IRS takes advantage of the ability of the mere mention of the tax agency to instill fear in the minds of the scammers' targets.  Especially for a confused older person, who frequently sees ads on late-night TV for sketchy companies telling people, "Don't be another IRS victim" (I am not making that up), saying that the IRS is calling is potent and scary.  Of course, it is a good thing when people feel that they must pay their part of the cost of living in a civilized society, but the vilification of the IRS leads to unreasonable fear.

The level of unfounded fear in the public's mind is actually quite fascinating.  For example, a clinical psychologist once asked me whether one of her clients could be jailed for not being able to pay his taxes.  (Her client was a substance abuser whose treatment was not going well.)  I pointed out that we have abolished debtors' prisons, and I assured her that the IRS was not going to throw her client in jail simply for being unable to pay his taxes.  (Speaking of debtors' prisons, we do know that far too many -- which is to say any -- local jurisdictions have set up systems of cascading fines that regularly lead to poor people being jailed.  But this is a Ferguson-like problem, not something that the IRS does.)

All of which is part of the more general atmosphere in which Republicans have chosen to attack the IRS rather than to fund it adequately and then exercise reasonable oversight.  Just last week, the Government Accountability Office published findings that the IRS (and many other government agencies) are saddled with archaic information technology.  Indeed, the master files for both individual and business taxes are written in "assembly language code—a low-level computer code that is difficult to write and maintain—and operates on an IBM mainframe" (Table on p. 2).  These 56-year-old systems need to be replaced, but the IRS does not have the budget to do so anytime soon.

Yet in the eyes of Republicans, this is proof that the IRS is at fault.  Now-Speaker Ryan's previous post was Chair of the House Ways & Means Committee, where he presided over an absurd bit of political theater regarding the IRS last Spring.  The Republicans' bright idea was that the IRS is deliberately trying to provide bad customer service, and that it had gone out of its way to squander money on previous computer upgrades.  Ryan and his party continue -- with evident success -- to try to convince people that the IRS is horrible, as a means of convincing people that taxation is bad.

Who cares that the Republicans need to destroy the system to achieve their goals?

In Praise of the Insincere Trans Debate

by Michael Dorf

During the last few years of the public debate over same-sex marriage, social conservatives found themselves making arguments against SSM that some conservative intellectuals sincerely believed but that did not reflect the actual basis for much (perhaps most) of the opposition to SSM. The actual basis for much of that opposition was a view--often but not always rooted in religion--that homosexuality is immoral or even disgusting.

But in polite circles, that's not the argument that was advanced. The argument offered was that marriage as an institution evolved for the purpose of providing a stable home for children conceived accidentally through heterosexual sex and that therefore extending the institution of marriage to same-sex couples was not required by its core purpose. This argument was coherent as an argument against a constitutional right to SSM, because it responded to the objection that denying same-sex couples the right to marry is irrational and thus unconstitutional. It's not irrational, the defenders of SSM bans said, because the failure to extend the institution was rational in light of its original purpose. For a number of reasons I won't detail here, I agree that that argument was rightly rejected in the Obergefell case, but at least I understand the nature of the argument in the context of constitutional law. As a policy argument, by contrast, the marriage-was-once-all-about-accidental-procreation claim was a non sequitur. The obvious response was and is: so what? Now that marriage has evolved into something else, there's no good reason to deny it to same-sex couples.

Something similar appears to be happening now with respect to discrimination against transgender persons. I suspect that, as with homosexuality just a few years ago, there is a mismatch between the arguments being publicly advanced for requiring transgender persons to use public restrooms designated for people of their sex assigned at birth and the actual reasons motivating the policy position. For many people, the actual basis for supporting restrictive restroom policies is a view--often but not always rooted in religion--that transsexuality is immoral or even disgusting.

But in polite circles, transphobia is not being offered as the reason to resist trans access to restrooms on the basis of gender identity. The chief argument now on offer is that permitting people to use restrooms based on their gender identity would facilitate assault by cisgender men using the permission for trans women who look like men as a cover to gain access to women's restrooms, where these cisgender men can commit sexual assaults and invade privacy.

Some people make this argument sincerely. Nonetheless, it is a bad policy argument, not so much because it's illogical--one can imagine circumstances in which it might be true--but because the solution doesn't fit the supposed problem. If permitting trans women to use women's restrooms creates opportunities for cisgender predator men to pose as trans women, the "bathroom laws," by requiring transgender men to use the restroom corresponding to their sex assigned at birth, i.e., the women's room, create opportunities for cisgender men to pose as trans men to gain access to women's rooms--unless bathroom police require birth certificates for women's room access.

Moreover, there's no evidence that sexual assault in women's restrooms by cisgender men passing as (cis or trans) women happens often. To be sure, one can say it hasn't happened yet because heretofore a person appearing to be a man entering a women's restroom would have been met with suspicion, but the truth is that in a nation with millions of public restrooms, someone wishing to gain access to a restroom as a means of committing assault already can do so just by sneaking in and hiding--or by choosing a different secluded location. Sexual assault of women by cisgender men is a very serious problem, but public restroom access is a tiny part of that problem--so tiny that it is hard to believe that the freakout about trans access to gender-identity-matching restrooms is motivated by concerns about sexual assault.

What are we to make of the mismatch between actual motives and public argument? It is a sign of real progress towards equality for trans Americans. Sometimes prevarication, like hypocrisy, is a tribute that vice pays to virtue. By not voicing their real (transphobic) objection to trans restroom access, Americans who oppose such access tacitly recognize the illegitimacy of their transphobia. Just as the disappearance from polite discourse of openly homophobic rationales for laws banning SSM (and laws denying gay equality more generally) was both an effect of and a cause of (further) decline in homophobia, so the decline in openly transphobic rationales for laws and policies that disadvantage trans people is an effect and--I hope--a cause of (further) decline in transphobia.

The States' "Bathroom Case" and Dynamic Statutory Interpretation

by Michael Dorf

On Wednesday, Texas and nine other states (as well as various localities and officials) sued the United States, seeking to block implementation of the policy regarding access to restrooms by transgender students set forth in the May 13 "Dear Colleague" letter from the Justice Department and the Department of Education. The lawsuit raises a number of procedural questions regarding jurisdiction and the Administrative Procedure Act--procedural questions of the sort that I often blog about. Indeed, readers may recall that I addressed only a technical procedural question a couple of weeks ago, in my post on the dueling lawsuits by the U.S. and North Carolina over the latter's "bathroom law."

For today, I want to bracket the interesting procedural questions raised by this latest Texas v. U.S. case --not to be confused with U.S. v. Texas, the immigration case now before the SCOTUS. The two cases are similar. In both, Texas argues that the Obama administration is attempting to accomplish by non-rulemaking agency action something that can only be accomplished either by legislation or by notice-and-comment rulemaking. Moreover, although broad constitutional objections to the exercise of executive power are asserted in both cases, close inspection shows that at bottom, each case is really about statutory interpretation. I might have more to say about the immigration case if and when the Court decides it later this Term. For now, I want to focus on the statutory interpretation issue in what I'll call The Bathroom Case.

The core of the plaintiffs' argument goes like this: When Title IX was enacted and amended, nobody thought that its prohibition on sex discrimination included either a prohibition on transgender discrimination or an obligation to permit transgender students to use sex-segregated restrooms designated for persons of the sex that corresponds to their gender identity rather than their at-birth biological sex. Indeed, its proponents provided assurances that restrooms segregated by biological sex are consistent with the statute. Thus, Title IX does not contain any obligation regarding transgender students today, and the "Dear Colleague" letter is accordingly ultra vires.

My goal here is not to try to resolve the case, which would involve many considerations I'm putting aside. In addition to the procedural issues noted above, there is a question of whether the federal government's interpretation of Title IX is entitled to Chevron deference. If it is, then the fact that the interpretation is a change from prior policy would not doom the federal government's position. The Chevron case itself, after all, upheld a changed interpretation of a statute.

But whether we are asking if the DOJ/DOE interpretation of Title IX is "reasonable" (as a court would ask in Step 2 of Chevron) or whether that interpretation is correct (as a court would ask if no deference is due), it's worth noting what appears to be an assumption embedded in the plaintiffs' core argument in The Bathroom Case: If Title IX didn't previously mean (or allow as a reasonable interpretation) that transgender discrimination or exclusion is sex discrimination or exclusion, then it can't mean that now, because at no time did Congress amend Title IX to include transgender discrimination. Put differently, the plaintiffs' argument depends on a view of statutory interpretation as static.

In an important article and book of the same name--Dynamic Statutory Interpretation--Professor Eskridge argued that traditional approaches to statutory interpretation aimed to uncover the original intention of the legislature, but that just as many people reject originalism in constitutional interpretation, so we should recognize that statutory interpretation also changes over time.

Since Eskridge first advanced the idea of DSI almost 30 years ago, the terms of the debate in both statutory interpretation and constitutional interpretation have changed somewhat. In the former, it is now conventional to distinguish among: (1) intentionalism; (2) purposivism; and (3) textualism.

Intentionalism in statutory interpretation aims to uncover and apply the intentions of the statute writers. Intentionalism founders on the problems--noted long before Eskridge wrote DSI--that even where the legislature anticipated a question, as a multi-member body it lacked any single intent with respect to that question, and that many of the hard questions in statutory interpretation are hard precisely because the legislature did not anticipate them. For these and other reasons--including skepticism about the reliability of legislative history--there are not many intentionalists around these days.

Purposivism, which is often associated with the Legal Process School of Hart & Sacks, does not aim to recover the actual subjective intentions of particular legislators or the legislature as a whole. Rather, it asks what purposes (which generally exist at a higher level of generality than intentions) reasonable legislators would have been pursuing in writing the statute the legislature enacted, and then construes statutory ambiguity in the way most likely to advance those purposes.

Textualism begins with skepticism about the legibility of legislative intent and the provenance of imputed legislative purpose. As to the latter, textualists warn that legislation is typically a compromise among people pursuing multiple conflicting purposes, so that any effort to infer and apply a purpose beyond what appears on the face of the legislation will likely simply impose the policy views of the judges.

Needless to say, these are almost comically abbreviated summaries, but they will suffice for now to make the point I wish to make: Intentionalism but neither purposivism nor textualism functions in the way that the plaintiffs' core argument in The Bathroom Case assumes that statutory interpretation works.

In making the foregoing statement, I am not saying that the plaintiffs will necessarily lose. What I am saying is that under neither purposivism nor textualism is a proposed reading of a statute ruled out simply because it would have surprised (or even angered) the lawmaker. To quote Justice Scalia in textualist mode in a sexual harassment case, "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Likewise, if the most reasonable purpose to attribute to the Congress that wrote and amended Title IX was to protect people against sex-role stereotyping and we now realize (even though the drafters and amenders of Title IX didn't realize) that requiring transgender individuals to use restrooms that don't match their gender identity is sex-role stereotyping, then Title IX should be read to forbid trans discrimination and exclusion.

Thus, the plaintiffs' core argument in The Bathroom Case makes an assumption that is inconsistent with two of the three leading approaches to statutory interpretation, and specifically the two approaches that are dominant in the courts.

Readers might be wondering whether I am saying that textualism and purposivism are dynamic, whereas intentionalism is static. Yes and no. Textualism is a family of theories rather than a single theory but for the most part textualists in statutory and constitutional interpretation believe that the meaning (i.e., semantic content) of a term does not change, but as readers know from debates about constitutional cases, the application can change. If it turns out that the meaning of "sex discrimination" is "practices that reinforce sex stereotypes" then we can recognize today that transgender discrimination is sex discrimination even though the enactors of Title IX would have disagreed with the specific application.

And again, likewise for purposivism. Purposivists tend not to talk much about whether the purpose of a statute is fixed at the time of enactment, but even if it is, just as the semantic meaning of the text can lead to results that the drafters wouldn't have anticipated or agreed with, so the objective reasonable purpose of the statute they enacted can turn out to have implications they didn't desire or expect. Both textualism and purposivism can be dynamic with respect to specific applications and expectations.

The, the plaintiffs' core argument in The Bathroom Case should fail. Perhaps there are other grounds on which they can win, but the fact (if it is a fact) that the application of Title IX to forbid trans discrimination or exclusion would have surprised the Congress that enacted or most recently amended Title IX is not dispositive.

The Sanders/Nader Comparison and Healing the Damage of the Primaries

by Neil H. Buchanan

A bit of a mini-debate has emerged recently among pundits over whether Bernie Sanders will be to Hillary Clinton in 2016 as Ralph Nader was to Al Gore in 2000.  Politico published a long-ish article making this claim ten days ago, and an op-ed columnist for the Washington Post weighed in on the issue the next day.  A simple Google search of "sanders nader" turns up multiple hits on the issue.  (For what it is worth, Nader himself has had good things and not-so-good things to say about Sanders this year.)

One of the reasons that I want to weigh in on this question is that I firmly reject the premise of the analogy, which is that Ralph Nader cost Al Gore the presidency in 2000.  Not only do I reject that claim now, but I rejected it from the very beginning, as I will explain momentarily.  Even so, I have reluctantly come to agree with the conclusion of that analogy, which is that Sanders and his supporters are now significantly increasing the likelihood that Donald Trump will be the next president.  No matter what one thinks about 2000, it now seems clear that we could see an even worse result in 2016.

Most people who lived through the nightmare of the 2000 election and its aftermath have at least a passing familiarity with the Democrats' case against Nader.  He ran a deliberately negative campaign against Gore, asserting repeatedly that the Republicans and Democrats were virtually indistinguishable on the issues, and in the end Nader supposedly cost Gore just enough votes to tip the election to Bush.

This counterfactual story has some support in the data.  Although Gore won the popular vote notwithstanding Nader's presence on the ballot, Nader's votes in both Florida and (we often forget) New Hampshire were enough to make the difference between the two major candidates.  If Gore had taken either state, he would have won the presidency.

Many Democrats to this day become enraged even thinking about Nader in 2000, and they take it as gospel that he alone is the reason that we were stuck with George W. Bush for eight years.

The usual version of this story is that Nader did this unintentionally, in the sense that he did not set out to make George W. Bush president, but he was willing to risk that outcome in the name of his own ambitions/goals.  An alternative claim is that Nader tried to hand the presidency to Bush, and that Nader was "secretly ecstatic" about having done so.  I find this implausible in the extreme, but it is at least possible that it is true.

In any event, the central assumption in either story is that Gore would have won if Nader had simply dropped out when it became clear that Nader's candidacy could make the difference in the election.  Much ink has been spilled on the question of whether Nader's voters would have voted for Gore in sufficient numbers, if they had voted at all, to guarantee a Gore victory.  That story is anything but airtight.

As strange as it seems for a Nader voter to vote for Bush, after all, it is possible that at least some of his voters would have been willing to guarantee Bush's election to try to spark a revolution.  (Even though I find that claim implausible when applied to Nader himself, it is easier to imagine sufficiently large numbers of Nader's supporters adopting such a nihilistic stance.)

To me, however, all of that counterfactual navel-gazing is based on far too static a view of the situation.  At some point, the story goes, Nader would have dropped out (and presumably either endorsed Gore or at least said that a Bush presidency was unthinkable), and all of the people who actually voted for Nader would then vote mostly for Gore, while the remaining eligible voters -- Bush voters, Gore voters, and non-voters -- would do exactly what they did in the actual election.

This never seemed plausible, even in the run-up to the election in the late summer and fall of 2000.  At that time, increasingly panicked Democrats were calling almost daily for Nader to drop out.  They were, of course, ignoring the bad campaign that Gore was running, especially Gore's decision to distance himself from Bill Clinton.  At a time when Arkansas and West Virginia were still quite plausible Democratic target states, a Clinton push in either place could have provided the extra electoral votes that Gore needed.  (That Gore lost his home state of Tennessee is also a long-forgotten inconvenient truth.)

The Gore people would surely claim that their decision to sideline the sitting president was ex ante a wise strategic choice, because it was still unknown whether Clinton's post-impeachment bounce in the polls was translatable into actual votes in a general election.  The understandable worry was that even if Clinton could nail down Arkansas's six votes for Gore, having Clinton in the news could have soured swing voters elsewhere, moving some battleground states that Gore eventually won into the Bush column.

That is the fun of counterfactuals, and it is exactly my point about Nader.  There are more moving parts in this little machine than "total votes for Nader in Florida."  No matter when Nader dropped out, that would have been huge news.  And the news would not have been spun positively for Gore.  With Karl Rove running things on the Bush side, and with the mainstream press so obviously leaning against Gore (writing stupid stories about his clothing consultants, and repeating the lie that Gore claimed to have invented the internet), what would the post-Nader-withdrawal story line have been?  "Gore makes secret deal with Nader to win election."  "Nader tries to help desperate Gore campaign."

If anything, the Gore people needed Nader to stay in the race so that they could continue to triangulate successfully.  Gore, trying to carry forward the ill-motivated agenda of the New Democrats, needed Nader as a foil.  The last thing he needed was for the political press to say that Gore must really be a leftist after all, which is exactly how Republicans and the pundits would have described anything resembling a backroom deal with Nader.

My conclusion, then, is that Gore could have lost badly if Nader had dropped out, because many of the swing votes that went for Gore could well have flipped to the "compassionate conservative" Bush in the maelstrom of accusations about Gore's supposedly revealed extremism.

I am certainly aware that mine is a minority view about the 2000 campaign.  I am also well aware that my story is as open to attack as any other counterfactual.  What I do find frustrating is the willingness of Nader-haters to make so many obviously incorrect simplifying assumptions in order to make the case that it was all Nader's fault.

All of which is to say that the SAT-style analogy -- Sanders is to Clinton as Nader is to Gore -- is based on an arguably false premise.  Ultimately, however, it is not necessary to reach a firm conclusion about 2000 to assess Sanders's impact in 2016.  Is he doing what many Democrats -- wrongly in my view, but nonetheless sincerely and emphatically -- believe Nader did in 2000?  Unfortunately, as I noted above, I am starting to think so.

Now, one could immediately point out that my description of Nader's role in 2000 (as what amounts to political cover from the left) could certainly apply to Sanders now.  Even setting aside any concerns about how Clinton might start moving to the right after Sanders is vanquished, it is not at all difficult to see the value in Clinton being able to present herself as the reasonable centrist among the three remaining candidates.  Republicans have a difficult task in painting Clinton as the crazy lefty-commie-socialist candidate when Democratic Socialist Bernie Sanders is pounding on her from the left.

Moreover, as a recent column in The New Republic points out, Sanders might already be pivoting toward attacking Trump and away from attacking Clinton.  That column also suggests that Sanders actually is trying to guarantee that Clinton beats Trump, but that she does so by continuing to be a liberal rather than by becoming the center-right candidate that is her instinctive default position.

All of that makes sense, and it certainly explains why I join many others in supporting Sanders in his decision to stay in the race as long as possible.  The problem is that the general election will not be a three-way race (thank you, Michael Bloomberg!), and at that point people will be choosing between Trump and Clinton.  Although I agree with Sanders that Clinton has a better chance of winning -- and of being someone whom people could support enthusiastically -- with an unapologetically progressive agenda, the problem is that Sanders and his supporters have taken Hillary Hatred to a very disturbing level.

Going all the way back to the young Sanders supporter who told Clinton during a town hall in Iowa that "I’ve heard quite a few people my age that think you’re dishonest," the Sanders camp has been pushing the untrustworthy/dishonest trope fairly relentlessly.  Interestingly, Clinton's response to that Sanders supporter -- a response that is all the more impressive because it was unscripted and betrayed no sense of the pain that a person must feel when being called a liar -- precisely diagnosed the underlying problem.  As The Hill reported:

“If you’re new to politics, if it’s the first time you’ve really paid attention, you go ‘oh my gosh, look at all of this’ and say, ‘why are they throwing all of that at her’?,” the former first lady responded. “I’ll tell you why — because I’ve been on the front lines of change and progress since I was your age. I’ve been fighting for kids and women and the people left out and left behind to help them make the most of their lives.”

And that is the real problem.  Even "The Daily Show with Trevor Noah" has begun to point out that the young people who are supporting Sanders have crossed a line in their emotional rejection of Clinton.  (Watch this brilliant segment: http://www.cc.com/video-clips/6i3juk/the-daily-show-with-trevor-noah-bern-baby-bern---bernie-sanders-supporters-at-odds-with-the-democratic-party.)

Those young people have no frame of reference, and all they know is that their hero has been saying really bad things about Hillary Clinton for months and months.  She must be evil, right?!  The same unhinged vilification is also evident in the attacks on the Democratic Party's leaders, including the ugly personal attacks on the Nevada state chairwoman after the recent caucuses there.

The point is that although the rough-and-tumble of primaries can generally be forgotten and the wounds allowed to heal over the summer, some wounds can be fatal.  The Sanders critique of Clinton reinforces the themes that the Republicans' attack machine has been repeating for a quarter of a century, making it understandable why Clinton's "negatives" in the polls are so high.

Sanders does not face the same problem that I described regarding Nader in 2000.  That is, Sanders is not running as an independent, so it will not seem suspicious when Sanders backs off from the Clinton attacks and joins forces with her.  When he does so, however, he has already made is own job more difficult.  Having told his legions of supporters that Clinton represents everything that is wrong with the country, he now has to get them to accept reality and support Clinton in November.

Sanders is capable of doing that, and I suspect that he will.  Even now, however, polls indicate that the anti-Clinton fervor among Sanders supporters is at historically unprecedented levels, with some Sanders supporters saying that they will vote for Trump and others saying that they will not vote at all.  Even if he thinks that he does not deserve to be blamed for that, Sanders needs to take responsibility for the healing that must happen as soon as possible.  We survived the presidency of George W. Bush, but we might not be so lucky this time around.

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.

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.

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. 

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.

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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 Peñalver 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