Friday, December 29, 2017

Politics and Constitutionality

By Michael Dorf

For this final post of 2017, I just want to direct readers to my latest essay on Verdict, where I argue that insofar as the new tax law punishes blue states and their residents, it is unconstitutional--even as I acknowledge that it would be very difficult to prove the claim in court. Here I simply want to add that I am aware of a potential critique, according to which it is never illicit for Congress to favor residents of the states with a majority of representatives; that's just politics, the critique goes; if you want more benefits for your state, win more elections.

I would say three things in response. First, there's a difference between members of a legislature looking out for their own constituents--which we expect--and looking to punish voters in jurisdictions that voted for the minority party--which we have not hitherto expected. Second, as I said, I realize that this distinction in principle will be very difficult to apply in practice, which is why I expect any such claim to fail in court. And third, as I say in the column, failure of an objection in the courts does not mean the objection is invalid; it just means that there are institutional limits to where the claim can be pursued.

Happy new year and thanks to all the DoL readers.

Thursday, December 28, 2017

The Tax Bill Is a Huge Win for Democrats

by Neil H. Buchanan

Surprising everyone (including themselves), Congressional Republicans joined hands earlier this month and said, "Look at us, we're finally doing something!"  They then passed a blatantly regressive and extremely unpopular tax bill and started celebrating.  Donald Trump signed it, and here we are.

It did not matter to Republicans:

-- that no one (other than Republican donors and ideologues) thought that changing the tax system was even a medium priority,

-- that the bill was written for (and in some cases was literally written by the lobbyists for) the largest corporations and wealthy people, 

-- that the bill received the worst poll ratings of any major piece of legislation in history,

-- that the bill made the tax system even more complicated than it already was,

-- that the process of creating the bill was chaotic, compressed, and entirely partisan,

-- that the Republicans went out of their way to take a whack at taxpayers in blue states, hypocritically violating the Constitution by deliberately setting up discriminatory treatment among the states (and all but dooming many of the sixteen blue-state Republicans in the House who lamely voted against the bill), or

-- that the Republicans lied nonstop about the magical growth effects of tax cuts.

With this mess now the law of the land, and the process of exposing its numerous hidden loopholes only beginning to flower, the next battle is over people's perceptions of the new law.  Republicans have convinced themselves that they can turn this around, that people will come to love this exercise in stroke-the-rich lawmaking.  They are fooling themselves.

Wednesday, December 27, 2017

District Court Tries Too Hard To Duck Emoluments Clause Case

by Michael Dorf

Last week Federal District Judge George B. Daniels of the SDNY dismissed the lawsuit pending in his court against President Trump alleging violations of the (foreign and domestic) Emoluments Clauses on multiple procedural grounds. In under 30 double-spaced pages, Judge Daniels concluded that: the private plaintiffs who run businesses that compete with Trump's businesses lack Article III standing because their injuries are too speculative; they also lack Article III standing because their claims are not redressable; they lack prudential standing because their injuries do not fall within the zone of interest protected by the Emoluments Clauses; the institutional plaintiff CREW (Citizens for Responsibility and Ethics in Washington) lacks Article III standing; the case presents a non-justiciable political question; and the lawsuit is not ripe.

Wow! That's a lot of flaws. How could the plaintiffs' cast of all-star lawyers have filed such a weak case?

The short answer is they didn't. I argued back in January that the case for Article III standing by CREW under existing Supreme Court and especially Second Circuit precedent is pretty strong. I argued in April that the addition of the competitor plaintiffs should have made the argument for standing "bulletproof." Was I wrong?

So thought some skeptics, who took to Twitter last week and retweeted the tweet by Take Care promoting my April essay, thereby implicitly criticizing the "bulletproof" characterization. Fair enough, I suppose, but I wrote in both my January blog post and the April Take Care essay that I thought it quite possible that the Supreme Court would overrule or narrow out of existence the key decision upon which CREW relied for standing. After all, the majority opinion in that case was authored by Justice Brennan, and given the ideologically rightward drift of the SCOTUS over the last 35 years, there was and remains a worrying possibility of a de facto or de jure overruling should the case end up before the justices.

What I did not expect was that a federal district judge would simply fail to apply the law that currently binds him. Yet that's more or less what Judge Daniels did. His opinion rejecting jurisdiction may ultimately be upheld by higher courts that either fail to follow or expressly overrule existing precedent.

So in a sense the skeptics are right, but only because a bulletproof vest provides no protection against a dirty bomb.

Tuesday, December 26, 2017

My SCOTUS 12 Days of Christmas Wish List

By Eric Segall

This term the Supreme Court is tackling an array of important constitutional questions, including how states organize their voting districts, the relationship between sexual orientation discrimination and freedom of speech and religion, and whether states may charge state employees mandatory fees for the work public sector unions do on their behalf. I certainly have a rooting interest in all three cases: please do something about partisan redistricting; don't cave to the discrimination is really free speech/freedom of religion trope; and, of course,s tates can charge fees to public sector union workers without first amendment restraint. However, my wish list is less substantive, but still important. So here goes:

Friday, December 22, 2017

How Will Democrats Respond to the Republicans' Tax Travesty?

by Neil H. Buchanan

Possibly the most infuriating aspect of the tax circus that we have witnessed over the last few months is the Republicans' insistence that they are doing something difficult.  This is a "big win," say the Republicans, and the supposedly skeptical press prints headlines like "McConnell Gives Trump Gift to Celebrate Tax Win" and "U.S. House to Vote Again on Tax Bill, Trump on Verge of Win."

I suppose the press justifies this by saying that the Republicans view it as a win, and the Democrats voted against it, making it accurate to score this as a W for the Republicans.  The problem is that this framing continues to ignore the fact that the Republicans can do whatever the hell they want to do.  They temporarily have the numbers to pass anything they want in both houses of Congress, limited only by whatever rules they decide to continue to impose on themselves.

In other words, even if this bill is a victory for Republicans in some sense, it is hardly something that should be hailed as a mighty accomplishment in the face of tall odds.  This is merely Republicans doing what Republicans have always wanted to do (after beating each other up for a few months).  They have done nothing that requires skill, unless not tripping over their own feet counts as a skill.

Thursday, December 21, 2017

Is the Tax Bill a New Low in American Politics?

by Neil H. Buchanan

The Republicans have now passed their stroke-the-rich tax bill, and we might (or might not, as I will explain tomorrow) be dealing with the consequences of this mess for years.  It continues to be ridiculous to call this a "fundamental tax overhaul" or "sweeping reform," as the major media outlets insist on doing ad nauseam, but the final bill did surprise me by being relatively large.

I say "relatively" because George W. Bush's first big tax cut bill in 2001 was scored as a $1.35 trillion revenue loser over the standard ten-year budget window, whereas this one is somewhere between $1 and $1.5 trillion.  With national income having almost doubled from 2001 to 2017, the new tax cut is much smaller in any meaningful sense than Bush's bill.

Indeed, The Washington Post's fact-checker ran the numbers and found that the current bill is not only not especially large, but it is actually smaller than two tax cuts passed during Barack Obama's presidency.  (Shhh ...  Don't tell Trump!)

On the other hand, Ryan Grim at The Intercept offers a provocative claim that this is the largest tax increase by far in U.S. history.  His argument is that the Republicans actually cut taxes on their favored patrons (corporations and rich people) by $6 trillion and then made up $4.5 trillion of that amount by increasing regular people's taxes, so that the bill, "properly described, is two things: the largest tax cut — and also the biggest tax increase — in American history."

In other words, as unprincipled and ridiculously ad hoc as this bill is, it certainly represents something significant in that it is a hugely regressive piece of legislation.  Whatever its net cost might be, it dramatically redistributes income upward.

And that is before we even take into account the assault on Medicare, Social Security, Medicaid, and "welfare" that the Republicans have promised for next year (partly justified by a supposed deficit problem that they deliberately intensified with this tax bill).

My expectation that the Republicans would fail to get themselves organized enough even to accomplish their ill-conceived ends turned out (quite unfortunately) not to be true.  Whereas I expected them to bicker among themselves until eventually settling on some minimalist rump bill that would cut taxes in a blunt way (reducing rates, for example), they actually got nearly every Republican in the House along with all 52 senators to vote for this ambitiously antisocial tax bill.

As much as I would like to diminish the significance of something that Trump will call "huge," what they did was certainly more consequential than I thought it would be.

I believed that some Republicans would balk at various pieces of the plan as it was hashed out because I continued to believe that there would be some lingering levels of substantive and procedural decency on the Republicans' part.  I was wrong.  They all exposed their utter lack of shame, arguably bringing us to a new low in recent American political history.

But is this truly the lowest point that we have reached in recent decades?  I will consider a few competing moments before explaining why this tax debacle is plausibly worse than any of them.

Wednesday, December 20, 2017

Why Not "Just Say No" to Sexual Harassers?

by Sherry F. Colb

My column for this week examines the case of Carpenter v. United States, which presents some important Fourth Amendment privacy issues. In particular, I consider Justice Gorsuch's peculiar reluctance at oral argument to utter the word "privacy" in connection with the Fourth Amendment right against unreasonable searches, a reluctance that I suggest has substantive implications. In this post, I want to discuss a different sort of privacy invasion and how an experience of my own might bear on the question of why people do not always contemporaneously protest this type of invasion.

When police want to search a person's car (or suitcase or house), they frequently ask for their target's consent. This is at least in part because an officer's desire to search does not always coincide with probable cause, a warrant, or whatever else might be required for a lawful search to take place. If a suspect gives consent to the police, however, then that consent renders the search that follows legal even in the absence of any ex ante factual basis for suspecting the target of wrongdoing. Consent trumps a lack of probable cause.

Tuesday, December 19, 2017

Susan Estrich Plays the Feminist Card, Hopefully for the Last Time

by Michael Dorf

Yesterday, Ninth Circuit Judge Alex Kozinski retired effective immediately in response to the growing number of accusations of sexual harassment and misconduct by his former law clerks and others. Having yesterday described Judge Kozinski as a "bosshole" who nevertheless was genuinely fond of the law clerks he gratuitously overworked, I want to praise him today for having made the right call. Given his statement that he "cannot be an effective judge" in the face of the allegations, I assume that Judge Kozinski means to retire completely, rather than to take senior status.

Whether Judge Kozinski's retirement fully ends the controversy over his conduct remains to be seen. In the meantime, I want to dwell a little bit on the role that his lawyer, Susan Estrich, briefly played in the saga. Late last week, Estrich issued the following statement on behalf of Judge Kozinski: "Many of the things that are being said about me are simply not true, but I deeply regret that my unusual sense of humor caused offense or made anyone uncomfortable. I have always treated my male and female law clerks the same."

That statement was inadequate on its face for at least three reasons. First, "just kidding" has never been a good defense for touching a woman's breasts without her consent, not in the mid-1980s or last year, when, according to the WaPo story cited above, Kozinski allegedly did those things. Second, a fair number of the allegations come from people who were never Kozinski's law clerks. And third, it should be obvious to anyone with even the most passing familiarity with the law of sexual harassment--and both Kozinski and Estrich have more than a passing familiarity--that treating male and female supervisees exactly the same can amount to the creation of a hostile environment for the women but not the men (or, in rarer cases, vice-versa), depending on what the "same" treatment is.  Images of naked women and sexual talk are pretty much a textbook example.

Kozinski thus seemed to be left with the Donald Trump/Roy Moore defense that all of the stories were made up for no apparent reason. Or at best with the Al Franken defense that some of the stories were made up for no apparent reason. Except that Estrich provided a reason. And it's a doozy.

Monday, December 18, 2017

Judges, Bossholes, and Coaches

by Michael Dorf

[*** Update: Judge Kozinski has apparently decided to retire (by which he appears to mean retire entirely rather than take senior status). Although my piece below discusses Judge Kozinski, its main points are more general and thus, I hope, continue to be relevant to our national conversation about sexual harassment, sexual assault, and, as is the focus here, workplace bullying regardless of its gendered dimensions. Now back to what I wrote before learning of Judge Kozinski's retirement.]

I do not have a #metoo story to relate of sexual harassment by Judge Alex Kozinski, at least nothing in which I figured as a victim of any sort of abuse. But I do have a story . . . or rather, I know some stories. In any event, I'll start at the beginning.

Friday, December 15, 2017

Con Law Exam 2017: Pardon Power, Trump, Braavos, and More

by Michael Dorf

Per my usual practice, I have set forth below the exam I recently gave to my first-year constitutional law students. It's got two questions with two parts each and was an 8-hour open-book take-home with a 2,500-word limit. Feel free to submit answers in the comments. I'm busy grading the students' exams, so I won't comment further on answers submitted here.

Question 1

On January 10, 2018, Special Counsel Robert Mueller’s investigation of alleged Russian interference in the 2016 election and related matters leads to a grand jury indictment of Donald Trump, Jr. In response, President Trump issues a full pardon to his eldest son. Sustained criticism ensues, with critics in the press and elsewhere complaining that the president is abusing his power by favoring a close family member. On January 13, Trump tweets:

Thursday, December 14, 2017

Making a Murderer Postscript: The Perversion of Henry Friendly's Innocence Concern

by Michael Dorf

In 1970, the University of Chicago Law Review published an article titled Is Innocence Irrelevant? Collateral Attack on Criminal Judgments by federal appeals court judge Henry Friendly. Judge Friendly was a judicial conservative in the small-c sense, non-ideological, committed to deciding cases narrowly, and an expert legal craftsman. As a young lawyer, Chief Justice John Roberts clerked for Friendly during Friendly's later years, and Roberts is fond of quoting (though not always abiding by) Friendly's aphorism that if it is not necessary to decide an issue to decide a case it is necessary not to decide the issue.

Is Innocence Irrelevant? was somewhat uncharacteristic of Friendly in that it offered a controversial policy proposal on a politically contentious issue. Writing in a period of transition from the Warren Court to the Burger Court, Friendly lamented that federal habeas corpus petitions by prisoners sentenced under state law were too often succeeding based on procedural irregularities that had no connection to innocence. To use the more nakedly political argot, federal courts were letting guilty state prisoners off on technicalities. Quoting Justice Hugo Black's dissent in a then-recently-decided case, Judge Friendly offered what he regarded--and what many still regard--as a self-evidently sensible proposition: "the defendant's guilt or innocence is at least one of the vital considerations in determining whether collateral relief should be available to a convicted defendant."

The ensuing nearly five decades have proven Judge Friendly prophetic--but probably not in a way that he would have approved. In 1976, the Supreme Court held that habeas corpus would not be available at all for petitioners claiming that otherwise-reliable evidence obtained in violation of the Fourth Amendment was used to convict them. The next year, the Court would make it considerably harder for petitioners who had failed to raise their objections in compliance with state court rules to obtain relief in federal court on otherwise meritorious claims. Other judicial narrowings followed and then, in 1996, Congress passed and President Bill Clinton signed the Antiterrorism and Effective Death Penalty Act (AEDPA), which further limited habeas corpus.

The Court decisions and AEDPA have made it much more difficult for prisoners without plausible constitutional claims that bear on innocence to obtain relief via habeas corpus. To my mind, that is understandable if not ideal: understandable because innocents serving prison sentences or awaiting execution suffer a much graver injustice than guilty parties whose proceedings were tainted by constitutional error; not ideal because habeas review once served, but no longer serves, as a means of ensuring that state court judges under political pressure to be tough on crime give full effect to the constitutional rights of criminal defendants.

But even if one thinks that Congress and the courts were right to cut back on habeas in cases where prisoners raise claims that speak only to the fairness of the proceedings, not to guilt or innocence, there is cause for alarm. Modern habeas law honors only half of Judge Friendly's agenda. It makes the bringing of habeas petitions by guilty defendants considerably harder than in the Warren Court era. But it also makes it extremely difficult for the innocent to obtain habeas relief. That proposition was on full display late last week in an en banc ruling by the US Court of Appeals for the Seventh Circuit.

Spoiler Alert: I will now discuss a case that figures in the Netflix documentary series Making a Murderer. If you intend to watch it but have not yet done so, you might want to bookmark the column and come back here after viewing.

Wednesday, December 13, 2017

The Embattled Trump Presidency: Lessons from Fiction

By William Hausdorff

It’s easy to get overwhelmed by information overload regarding the colorful Trump White House, its defenders and its attackers.  But as I learned from Libra, Don DeLillo’s fictionalized account of the John F. Kennedy assassination, one doesn’t need to know exactly what is happening to understand the main plot lines. 

That novel suggested that the essence of the Kennedy story was that there were at least three potentially murderous groups who felt aggrieved. These included Mafia figures furious that he named his brother as Attorney General, anti-Castro figures seething at Kennedy’s lack of support for the Bay of Pigs invasion, as well as pro-Castro figures outraged at the administration’s open hostility to Cuba.

As described in Philip Shenon’s excellent non-fiction analysis, the latter group, to which Lee Harvey Oswald belonged, may have been especially enraged by the news of US attempts to assassinate Castro.  In some ways, then, it didn’t matter who ended up pulling the trigger.

What are the broad lines of the Trump story here?

Tuesday, December 12, 2017

When Liberty and Equality Conflict -- And When They Don't

by Michael Dorf

My latest Verdict column dives into the weeds of the Masterpiece Cakeshop case. To summarize and over-simplify, I argue that while there are hard cases that pit liberty against equality, Masterpiece Cakeshop should be deemed an easy case. That's not because the baker has no interests in this case. He may well have a substantial stake in the outcome of the case. It's just that he cannot win on his free speech claim without blowing up anti-discrimination law, and his claim that he has suffered discrimination based on religion does not find support in the record.

Here I want to address an issue I use to frame the discussion in the column: Should we understand apparent conflicts between liberty and equality as genuine--as value pluralists like Isaiah Berlin and Bernard Williams argued--or should we regard them as spurious--as Ronald Dworkin did? I'm not going to try to definitively resolve that question, but I am going to try to use it as a way of distinguishing two kinds of cases: those in which the (real or apparent) sacrifice of liberty for the sake of equality is a source of moral regret and those in which it is not.

Monday, December 11, 2017

Republicans' Vapid Defenses of Reverse-Robin Hood Policies

[Note: This column was revised and edited for clarity at 8:05pm on December 11, 2017.]

by Neil H. Buchanan

As the Republicans in Congress try to drag their highly unpopular tax bill across the finish line, they have become ever more brazen in admitting what they really think about non-rich people who dare to complain about the feed-the-rich shamelessness of the Republicans' plan.  In case anyone had forgotten, Republicans are again making it clear that they think that non-rich people are lazy, shiftless leeches.

An op-ed by two analysts at the New America Foundation cuts through the nonsense and points out the fundamental reality: "Republicans Are Bringing ‘Welfare Queen’ Politics to the Tax Cut Fight."  Senator Orrin Hatch's recent complaint about "people who won’t help themselves, won’t lift a finger and expect the federal government to do everything" merely reminds us of Speaker of the House Paul Ryan's "makers and takers" meme and especially of Ryan's former running mate's infamous "47 percent" comments.  These, in turn, were mere updates of Ronald Reagan's infamous (and completely imaginary) "welfare queen" in 1976 who supposedly worked the system to the tune of millions of dollars of undeserved benefits.

Republicans also make arguments that, if taken seriously (which they should not be), would ultimately prove that all taxation (even regressive taxation) is immoral.  Although some Republicans might be willing to own up to that claim, a party that is obsessed with Pentagon spending and spending money to keep brown- and black-skinned people in their places -- which often means out of the country entirely -- needs to have some way of separating acceptable forms of taxation from unacceptable forms.

Republicans are stuck, because they have no way to justify tax cuts for the rich without insulting everyone else, and they cannot make choices among taxes because they are committed to the belief that all taxes are inherently bad.  What we end up with is the current mess of a tax bill and the shockingly bad salesmanship on display from the Republicans.

Saturday, December 09, 2017

The Year of the Terrible

By Eric Segall

The Year of the Terrible started on January 20th when the newly elected President of the United States gave his inauguration speech to the largest, most devoted crowd in the history of inauguration speeches. During that speech, he made clear what kind of role model and world leader he was going to be by proudly proclaiming “From this moment on, it's going to be America First…. We will follow two simple rules: buy American and hire American.” Of course, while Trump was speaking, his National Security Advisor Michael Flynn was allegedly on the phone texting a comrade that a joint nuclear power project with Russia was “good to go.” The melding of the Kremlin and the White House was off to a very good start.

Friday, December 08, 2017

The Other Kind of Sexual Harassment

by Sherry F. Colb

In my column this week, I discuss what I take to be at least one reason for the longstanding reluctance (by men and women) to believe women who say they have been raped or sexually harassed by seemingly normal, ordinary men. The reason has to do with the disturbing implications of acknowledging that such conduct has occurred. Disbelief in individual cases then functions as a form of denial across the board. In this post, I want to talk about a type of sexual harassment that has not been on the national radar lately but that is nonetheless a significant impediment to women's equality and to their sense of safety and wellbeing in the workplace.

Thursday, December 07, 2017

Estates, Death, and Relentless Republican Lies

by Neil H. Buchanan

The repeal (or near-repeal) of the estate tax is by no means the largest part of the Republicans' tax plans, but it is at the philosophical core of their anti-tax efforts.  Understanding how and why Republicans insistently lie about the estate tax provides a window into their longstanding effort to reward the wealthy simply for being wealthy and to punish everyone else for not being virtuous enough to be rich.

Untroubled by evidence and unencumbered by logic, the Republicans have been telling tall tales about the estate tax literally for decades.  Shamefully, many Democrats have bought into those lies, with the result that the estate tax is now a husk of what it should be.  Rather than full repeal, I suspect that the current political mess will leave an even smaller and less effective estate tax in place, thus allowing Republicans to continue to campaign against it -- and to continue to use it to raise funds from wealthy donors.

No matter whether my prediction turns out to be true, perhaps the most interesting and depressing aspect of the Republicans' anti-estate tax howling is that it shows how completely they are willing to put ideology before reality.  And they have been doing so for decades, long before Donald Trump's garish reality show allowed other Republicans to pretend to occupy a somewhat higher ground.

After briefly summarizing how the estate tax works, I will use Senator Chuck Grassley's recent arguments (and I use that term loosely) against the estate tax to illustrate the rank dishonesty and elitism of the Republicans' anti-tax crusade.

Tuesday, December 05, 2017

Three Problems With the SG's Klan Hypo in the Masterpiece Cakeshop Oral Argument

by Michael Dorf

During the oral argument in the Masterpiece Cakeshop case, Solicitor General Noel Francisco repeatedly used the following hypothetical example to make the point that a baker's creation of a custom cake (regardless of whether it contains an articulate message) is speech: Could the government "compel an African American sculptor to sculpt a cross for a Klan service?", the SG asked. And if not, doesn't that show that sculpting for a ceremony to which one objects--whether the medium is wood for a cross or dough for a cake and whether the ceremony is a wedding or a cross-burning--is expression to which the compelled speech doctrine applies?

The argument in the case was wide-ranging, with various outcomes possible. For at least some justices the case poses difficult line-drawing problems. But the SG's cross example does not do the work that he seems to think it does. Here I'll highlight three objections to it. One of them was offered during the oral argument itself by the lawyers opposing the baker, but went by quickly enough that it might not be sufficiently appreciated. The other two objections are my own contribution.

Originalism and Textualism in Action: Not Constraining and Not Neutral (Part 2)

by Joseph Kimble

      Several readers made thoughtful comments on my original post. They deserve equally thoughtful responses, which I’ll try to provide below.

     The short references are to the two articles I cited in the original post, one in The Scribes Journal of Legal Writing and the other in the Wayne Law Review.

     Most of the comments centered on the Wayne article about overrulings by the Michigan Supreme Court. (Reminder: the 81 overrulings by the Republican majority were 96.3% ideologically conservative.) Few readers addressed the evidence about Justice Scalia’s opinions in the Scribes article: 6 empirical studies (pp. 30–35) and 11 scholarly examinations (p. 35, note 96) that seriously militate against any claim that his textualism was nonideological, politically neutral, objective — the simple product of rule-of-law judging. How much evidence does it take to confirm what (in Prof. Dorf’s words) is “blindingly obvious” to anyone familiar with the tilt of those opinions?

Monday, December 04, 2017

Dialing the Shamelessness and Dishonesty Up to Eleven .. Twelve ... Thirteen ...

by Neil H. Buchanan

I am not the only observer who was surprised that the Republicans managed to get out of their own way and actually pass two versions of a relatively large change to the U.S. tax system.  (What will happen as they try to agree on a final version is, of course, anyone's guess.)  I was not, however, especially surprised by the added degrees of shamelessness and dishonesty that the Republicans were willing to bring to their effort.

After all, anyone who has been paying attention -- and who is not either a partisan Republican or a diehard believer that both parties are always equally to blame -- has seen this coming.  Each time a big policy debate has erupted over the past generation, the Republicans have outdone themselves and degraded our political system in ways that were once unthinkable.

Friday, December 01, 2017

Capitalists Against Capitalism

by Neil H. Buchanan

I have no idea why it still surprises me, but I am always amazed when conservatives who present themselves as the brave defenders of capitalism inadvertently reveal that they have absolutely no idea what capitalism is or how it works.  A serial offender is Donald Trump's budget director, Mick Mulvaney, who is now in the midst of a fight to take over the Consumer Financial Protection Bureau (CFPB).

As part of his public relations campaign, Mulvaney announced several days ago that Trump "wants me to get [the CFPB] back to the point where it can protect people without trampling on capitalism."  This is more than a bit odd, because Mulvaney has made it clear that he never thought the CFPB was at the point where it was not trampling on capitalism, and he and Trump clearly want to destroy the agency, not bring it back to some golden age of capitalism-friendly consumer protection.

The big point that Trump and Mulvaney are making, after all, is that the agency that has aggressively enforced anti-fraud laws to the benefit of American citizens must be stopped because its efforts to force Wall Street banks to obey the law are an affront to capitalism itself.  Notice that this is not even a statement that the underlying laws that the CFPB enforces are anti-capitalist (although I am sure that conservatives oppose those laws as well).  Mulvaney and Trump apparently believe that forcing banks not to break the law is itself a problem.

This is what we might call the Dumb Guy's Version of Capitalism.  A not-very-bright man hears that rich guys with lots of power say that they like capitalism and that they hate anything that limits their power, especially governments and labor unions.  Therefore, anything that rich, powerful guys like must be what capitalism is, and everything they hate must be an assault on baseball, hot dogs, apple pie, and (especially) Chevrolet.

It just so happens that that is completely wrong.  It was never true that what's good for General Motors is automatically good for America, and it is now even more important to understand the difference between being in favor of capitalism and being slavishly in favor of everything that business leaders say they want.

Importantly, this applies not just to the relatively small debate over the future of the CFPB but to every aspect of the Republicans' agenda.  Trickle-down tax cuts, gutted environmental regulations, weakened consumer and worker protections might lead to record-setting stock prices, but they are bad for capitalism and bad for America.

Thursday, November 30, 2017

The Four Lies and a Truth at the Heart of O'Keefe's Failed WaPo Sting Attempt

by Michael Dorf

Right-wing provocateur James O'Keefe and his organization Project Veritas were in the news this week, but not in the way that he hoped. O'Keefe sent a woman to talk to Washington Post reporters falsely claiming to have had an abortion as a teenager after she was impregnated by Roy Moore. Presumably, O'Keefe hoped that the Post would run the story, whereupon he would reveal that it was false, and this would show that: (a) the Post has a liberal bias that leads it to cut corners when reporting negative news about conservatives; and therefore (b) prior WaPo reporting on Roy Moore's sordid sexual history is not credible. The Post foiled O'Keefe's plans by fact-checking the woman's story. When it did not check out, the Post did not run her false story, instead running the story of how O'Keefe tried to fool the Post.

There the episode might have ended were it not for the fact that O'Keefe and his acolytes do not just run stings against liberal targets. To use the language of a forthcoming article in the University of Pennsylvania Journal of Constitutional Law by Prof Sid Tarrow and me, they combine stings--undercover reporting aimed at exposing wrongdoing--with scams--misrepresentation of the results of the stings through selective editing. Thus, even after the Post revealed that it was onto him, O'Keefe released a deceptively edited video suggesting that the Post was really just trying to cover up some other form of wrongdoing. This too was revealed by the Post.

Even as Prof Tarrow and I deplore scams, we acknowledge that there should be some protection for stings. We agree with Profs Justin Marceau and Alan Chen, who argue in a recent Columbia Law Review article that the First Amendment ought to be construed to permit some deception by journalists (and others performing journalistic activities) to gain access to persons or property in order to discover matters of public concern. Protecting scammers like O'Keefe may be the cost of protecting real investigative journalism by honest journalists and activists.

Wednesday, November 29, 2017

Why It's So Hard For The Senate To Purge Offenders

by Michael Dorf

My latest Verdict column explores the reasons for the difference in reaction time to sexual harassment, sexual assault, and other sexual misconduct in the private sector (thus far mostly Hollywood and the media) versus in government. I note that actors, directors, journalists, etc., have been meeting with swift termination, while elected officials have not been. I offer a couple of factors as key to the explanation of the disparity. First, polarization makes people likely to view both the seriousness and truthfulness of the allegations through a partisan lens. And second, even when people accept that "their guy" did the thing and it was bad, it is instrumentally rational to stick with your scoundrel if he will vote as you expect, rather than to jump ship in favor of an upstanding citizen of the rival party.

Tuesday, November 28, 2017

How Should a Committed Originalist Decide Masterpiece Cakeshop?

By Eric Segall

Next Tuesday, the Supreme Court will hear the case of the Colorado baker who refuses to allow his products to be used in same-sex wedding ceremonies or celebrations. Colorado courts found that his refusal violated a state law prohibiting vendors from discriminating on the basis of sexual orientation. The baker, Jack Phillips, claims that the Colorado law, as applied to him, violates the First Amendment’s speech and religion clauses. This collision between anti-discrimination laws protecting gays and lesbians on the one hand and opponents of same-sex marriage on religious and free speech grounds on the other hand is the latest battle in the national culture wars. 

Justices Gorsuch and Thomas both claim to be committed originalists. Since it is likely the four liberals on the Court will rule in favor of Colorado, one more vote for the State should result in its victory. How should a committed originalist decide this case? 

Dementor ideas—and how to survive them

By William Hausdorff

The glimmers of hope from the most recent state and local elections in Virginia and elsewhere paradoxically made me aware of how thick is the cloud of gloom that had descended on many of us since the previous US national election.  This gloom that has made many of us question, for the first time, the very resilience of the US political democracy.

In trying to cope with this, Masha Gessen drew on her previous life in a gloomy environment in an excellent essay:

…a decade and a half in Putin’s Russia taught me something about living in an autocracy. I am familiar with the ways in which it numbs the mind and drains the spirit. 

In contrast, I have recently been pondering the Dementors described by J.K. Rowling in her Harry Potter books:

Dementors are among the foulest creatures that walk this earth. They infest the darkest, filthiest places, they glory in decay and despair, they drain peace, hope, and happiness out of the air around them... Get too near a Dementor and every good feeling, every happy memory will be sucked out of you. If it can, the Dementor will feed on you long enough to reduce you to something like itself... soulless and evil. You will be left with nothing but the worst experiences of your life.

While it’s tempting to consider Trump the Dementor-in-Chief, a simple thought experiment reveals he is not the sole source—if he were removed from office tomorrow, even if a cause for great celebration, would the gloom lift overnight?  We would still have white nationalism, Pence, the Tea Party Congress, etc.  True dementors are much more insidious and subtle.

Monday, November 27, 2017

Of Magic Asterisks, Time Bombs, and Other Republican Deceptions

by Neil H. Buchanan

The Republicans' attempt to sell their damaging and regressive tax plan is proceeding pretty much as one would expect.  They are making unsupportable economic claims while endlessly repeating an up-is-down-freedom-is-slavery-everything-will-be-different-this-time big lie, claiming that their proposals are all about improving the lives of middle class people.  This has become standard operating procedure for Republicans in the twenty-first century.

Although we have long since become accustomed to most of this, we must constantly remind ourselves that it is a very sad state of affairs when we find ourselves saying, "Sure, one of the two major political parties cannot make an honest case even for its most fervently held policy goal, but what are you gonna do?"  Even so, at this point it would barely be worth writing yet another column on this topic if there were not some new aspect to the Republicans' relentless, pathological dishonesty.

And as it happens, there is something new going on in late 2017.  The Republicans have openly embraced not only fantasy economic forecasting but fantasy political forecasting as well.  They have decided to rest their political case on the assertion that the future tax increases for lower- and middle-class people that are necessarily built into their scheme will never happen, because today's Republicans just know that a future Congress will never let them happen.

This is even worse than it sounds.  Indeed, it represents an effort by Republicans to ignore very recent evidence about how the political process can go off the rails.  They are telling non-rich Americans to trust them, even though these same Republicans have shown no ability to predict their own future actions.

Remember the "sequester"?  That was the set of future automatic spending cuts that were included in a 2011 spending bill but that supposedly would never happen, because we all knew (or thought we knew) that everyone would find them so unacceptable that they would be repealed before they ever happened.  And then they happened.

Republicans apparently have conveniently forgotten all about that mess.  To understand why that matters so much today, we first have to expose the latest clumsy sleight of hand that is embedded in the Republicans' current strategy.

Wednesday, November 22, 2017

Reconsidering the Heckler's Veto Principle

by Michael Dorf

As I noted here last week, on Monday, UC Berkeley Law School Dean Erwin Chemerinsky delivered two lectures at Cornell on "Free Speech on Campus." He was thoughtful and erudite, and I say that because it's true, not only because Dean Chemerinsky said he agreed with everything I said in my preview blog post!

I'm not going to try to recap everything Dean Chemerinsky said. Instead, I want to focus on what he described as a gray area: the scope of the obligation of government--including public universities like UC Berkeley--to pay the added safety costs associated with speakers with highly controversial views.

Tuesday, November 21, 2017

Viewing Old Movies and TV Shows from a (Somewhat) More Enlightened Perspective

by Neil H. Buchanan

The sudden wave of social acknowledgement of the ways in which men have long mistreated women is as unexpected as it is welcome.  We are in what seems to be a transformative moment in history, and we can only hope that it leads to a thoroughgoing change in men's behavior and everyone's expectations.

By far the most ink has been spilled recently discussing U.S. Senate candidate Roy Moore and his harassment (and worse) of underage girls when he was in his thirties.  I have nothing to add to that discussion, but I will note that Donald Trump's (mis)handling of the Moore mess includes this gem:
"[White House press secretary Sarah Huckabee] Sanders said Thursday that Trump considers the allegations against Moore 'extremely troubling' but does not plan to rescind his endorsement and thinks that Alabama voters should be the ones to pick their next senator."
Now, if Trump truly believed that Alabama voters should pick their next senator and that no outsiders should try to change the outcome, he would never have endorsed Moore in the first place.  But Trump's version of remaining "neutral" about Moore is to endorse him and then not to rescind his endorsement even in light of extremely troubling allegations, so that Alabamians can think for themselves.  Brilliant!

Of course, by Trump's degraded standards of reasoning, that is almost Aristotelian in its nuance.  And let us not forget that Sanders has also said that the difference between Moore and Senator Al Franken is that Moore denies the charges.  Trump is famous for believing people's denials, after all.  Just ask Hillary Clinton and Barack Obama.

Speaking of Franken, as of this writing we now have two accusers who have put his political career in a tailspin.  In the few short days since the first accusation against Franken became public, there has been an outpouring of very smart commentary on both sides of the question of whether Franken should resign his Senate seat.  It is not an easy call either way, but for the record, my immediate reaction was that he had to go (and that was before the second accuser came forward).  Although this column addresses a different subject, I can say that I continue to believe that he should resign.

But beyond the direct political questions, the first Franken accusation has caused me to think about what counts as funny.  More specifically, the interesting question is how our standards of humor will change because of this turbulent moment in history, and how we will look at popular entertainment from the past in light of our new and (one fervently hopes) permanently more enlightened attitudes about sexual harassment and abuse.

Monday, November 20, 2017

Text and History Fed Soc Style

By Eric Segall

Professors Randy Barnett and Akhil Amar had a fascinating, informative and entertaining debate at the Federalist Society Convention on Saturday. The question was "Resolved: Lochner Still Crazy after all These Years." I recommend you watch the entire debate, but I want to focus on what Barnett said at the very end. In response to a question concerning how far the legal academy has come in accepting the idea that maybe Lochner wasn't all that bad, Barnett attributed the development to the Federalist Society's thirty-year commitment to pushing judges to adopt a textualist-originalist approach to constitutional interpretation. Barnett's explanation echoed the overriding theme of the conference, which was that finally textualist-originalist judges were being appointed to the bench. The White House counsel said at the convention, to everyone's delight, that "The Trump Administration's philosophy on judging can be summarized in two words: "Originalism and Textualism.'"

Friday, November 17, 2017

Disaggregating Free Speech on Campus

by Michael Dorf

On Monday Nov 20, UC Berkeley Law School Dean Erwin Chemerinsky will be giving two talks at Cornell on the topic "Free Speech on Campus," which happens to be the title of his new book with Howard Gillman. I'll introduce Dean Chemerinsky at the law school event and, following his talk, moderate a discussion. I expect to have something to say by way of post-mortem on Tuesday. In this essay, I want to make a preliminary observation about Dean Chemerinsky's topic and then offer some illustrations.

My basic claim is that some free speech issues might be resolved differently in a college or university (what I'll call "campus") setting from how they might be resolved in general (what I'll call non-campus settings), but that the difference the campus setting makes depends on the question. In some contexts, the fact that speech claims are made on campus should make them stronger relative to competing claims; in other contexts, the fact that speech claims are made on campus should make them relatively weaker; and in still other contexts, the campus setting should make no difference.

That might not seem like much of an insight, but I think it is nonetheless worth highlighting, because there is a tendency in public debate about campus speech for conservatives to accuse liberal academics of hypocrisy--of wanting to deny conservatives freedom of speech (by campus speech codes, say) in the one setting where it should be sacrosanct (via academic freedom). There may indeed be hypocrisy afoot (by liberals, conservatives, and/or others), but the fact that some speech claims are weaker in virtue of occurring in the campus context is not necessarily evidence for that fact. The difference that the campus context makes is multivalent.

Thursday, November 16, 2017

What Would a Frustrated Republican Say On the Way Out?

by Neil H. Buchanan

A surprisingly large number of Republicans have announced their departures from Congress this year.  Including those who are retiring, resigning, and running for other offices, there are currently 25 members of the House who are either already gone or will not be back in January 2019.  Most are not well known.  More prominently, Senators Bob Corker and Jeff Flake are also quitting in disgust.

This is more than a bit unusual, because it is usually the minority party that suffers big losses of experienced people.  Why stick around, especially in the majority-is-everything House, when you are in the minority and when there are no White House perks or photo ops to make your job exciting?

But Republicans are leaving in droves.  I will leave it to others to ponder what this means about the majority party's leadership and Donald Trump.  My question today focuses on what the Republican leavers will say and do as they walk out the door.  Will they unload a political version of "take this job and shove it," revealing their true thoughts about the policies that they were expected to support?

Wednesday, November 15, 2017

The Free Speech and Equal Protection Exclusionary Rule

by Michael Dorf

My latest Verdict column asks whether the Justice Department is violating the First Amendment by conditioning its approval of AT&T's acquisition of Time Warner on divestiture of either DirecTV or Turner Broadcasting, the parent company of CNN. I conclude that there is probably enough prima facie evidence that the decision is in retaliation for CNN's "fake" (i.e., appropriately negative) coverage of Trump to justify discovery regarding subjective motivation should the issue end up in court.

En route to that conclusion, I compare and contrast the legal approach that prevails in free speech and equal protection pretext cases, on one hand, with the legal approach that prevails in Fourth Amendment pretext cases. Here I want to explore a point that seems to be insufficiently appreciated: the existence and strength of what I'll call the "Free Speech and Equal Protection exclusionary rule."

Tuesday, November 14, 2017

What If We Were Only Trying to Improve the Tax Code?

by Neil H. Buchanan

Imagine a world, not at all like our own, in which the Republican majorities in Congress had decided to update the tax code in a way that truly deserved to be called "reform."

Rather than proceeding from the firm commitment that they must cut taxes on large corporations and the superrich (especially the "lazy rich"), Republicans instead could have approached the tax code realistically and productively, noting that it must necessarily be complicated -- because life is complicated, and people want the tax code to take into account life's realities -- but doing everything that they can to repeal or change tax provisions that simply do not make sense.

Again, that is most definitely not what Republicans are actually doing.  They have proposed a melange of unrelated changes to the tax code that will hit various groups of taxpayers, but this is only happening because Republicans imposed restrictions on themselves that required them to offset some of the huge revenue losses that their dearly desired regressive tax cuts will create.

Even so, there is an interesting -- if entirely coincidental -- possible overlap between what Republicans have proposed and what responsible legislators might have proposed.  It is thus useful to think about a few Republican proposals from the standpoint of whether they are defensible ideas on their own merits, ignoring the undeniable fact that these changes are up for debate only because Republicans are hellbent on delivering huge windfalls to their mega-patrons.

Monday, November 13, 2017

Should Media Companies Remove Old Content Featuring or Made by Sex Offenders and Other Wrongdoers?

by Michael Dorf

In light of the revelations and accusations that Kevin Spacey sexually harassed and/or assaulted various men and boys over the years, Netflix has suspended production of the upcoming season of House of Cards, in which Spacey has hitherto starred. Reportedly, the show's writers are attempting to write Spacey's character, Francis Underwood, out of the show. In the meantime, Netflix subscribers can still watch the existing five seasons.

That is more than can be said for fans of comedian Louis CK, who admitted late last week that he had pressured women to view him naked. Women have alleged that CK masturbated in front of them; CK's apology admits that he "showed them" his penis but does not specifically mention masturbating. In any event, the incompleteness of CK's apology does not seem to be at issue, because HBO acted before CK published it. Within a day of the initial revelations, HBO canceled upcoming projects with CK and also pulled CK's existing shows from its streaming services. Although I have not seen a similar announcement from the FX Network, which produced CK's popular series Louie, FX seems to have followed suit. On Sunday night, my search for "Louie" on the FX website produced no results.

What should one make of the decision of Netflix to leave older Spacey content accessible versus the decision of HBO and, apparently, FX, to remove older CK content? Obviously, this is not a constitutional question, as the respective networks are private actors to which the First Amendment does not apply. It might be a contractual question, depending on the terms of the networks' contracts with Spacey, CK, and the very large number of other people and firms involved in the various shows. Many contracts have catch-all "morals clauses," but they vary. For example, until recently, Bill O'Reilly's contract with FoxNews forbade the latter from firing him over sexual harassment allegations unless they were proven in court. Networks confronting alleged and/or admitted sexual misconduct by actors, directors, producers, and others responsible for the content they provide will have to untangle their various contractual obligations.

In the end, each network will make a business decision based on its assessment of the costs (boycotts, etc) and benefits (loyal fans, new viewers attracted by the controversy) of each case. Those are difficult to tally up in the abstract. Accordingly, network executives at Netflix, HBO, Amazon, and the many other companies that now deliver content to a world of media-hungry viewers might want to consider a normative question: What is the right course of action?

Friday, November 10, 2017

Scalia Speaks Well: But Not About Originalism

By Eric Segall

Justice Antonin Scalia lived a large life. There is no denying his remarkable ability to give speeches that dazzled those in attendance. His son Christopher Scalia and Ed Whelan have collected and published many of these speeches in their new book "Scalia Speaks: Reflections on Law, Faith, and Life Well-Lived." These talks, given around the world, provide the reader a wonderful account of Scalia the person, the philosopher, and the judge. On just about every topic, small and large, with one major exception, Scalia entertains, informs and energizes. My perspective is the same as other reviewers on this point so I will not elaborate further on the positive aspects of most of these fine speeches.

If the reader is looking for a strong justification for originalism in these speeches, however, she will be disappointed. The speeches on that topic, sadly, are cliche ridden, assume facts not in evidence, and most importantly, do not address the major issue many legal scholars had with Scalia's strong originalist stance--that he did not adopt that stance himself. Scalia's hypocrisy on the subject, the disconnect between what he practiced as a judge and what he preached off the Court and in dissent, is as large as the life the man lived.

I understand that this collection of speeches was not intended to present a full throttle defense of Scalia's views on either constitutional interpretation or originalism. Nevertheless, the editors did a wonderful job selecting those speeches that comprehensively, or at least accurately, cover Scalia's views on the topic. Moreover, although the speeches on such diverse topics as "Being Different" and 'The Arts" are wonderful, Scalia after all will be remembered most for his dogmatic views on judging and proper constitutional analysis. This post, therefore, focuses on how the collected speeches handle those topics.

Thursday, November 09, 2017

Stupid Tax Tricks

by Neil H. Buchanan

As I write this column, Republicans in the U.S. Senate are doing their part to make sure that the debate about taxes becomes even more absurd and incomprehensible.  Not that that's a bad thing.  This whole process is a sham, and we would be much better off if they did nothing at all.

And it might well come to that.  I continue to believe, however, that Republicans will flail about for several months but then cobble together something at the last possible moment before some self-imposed deadline.  Whatever they ultimately pass, they will call it "reform" and Donald Trump will call it "tremendous.

Whatever emerges in the end will almost certainly be nearly unrecognizable compared to where they started.  In the meantime, I find it unfortunately necessary to pay attention to the process, because Republicans will stagger along and make some ad hoc and often accidental decisions that will somehow become accepted wisdom.  Path dependence matters.

To be honest, however, for people who follow politics or tax policy (or both), all of this is as close to mental masturbation as it could ever be without misusing the word "literally."  Hence the following disclaimer: This column will probably end up being as relevant to future tax analysis as the House Republicans' failed March 2017 health care bill is to doctors and hospitals today.  You have been warned.

Wednesday, November 08, 2017

Surrogacy and commodifying women

by Sherry F. Colb

In my column for this week, I discuss the topic of surrogacy in the context of a New York State bill under consideration that would legalize such arrangements and make them enforceable. My focus in the column is on the baby's interests and on the potential parents who wish to use surrogacy to expand their families. In this post, I want to look more closely at the woman who carries other people's babies, the surrogate herself. Why would those focusing on the woman wish to ban surrogacy?

Tuesday, November 07, 2017

The Diversity Lottery and the Lottery of Birth

by Michael Dorf

The NYPD and other first responders were still tending to the dead and wounded late last week when the news that ISIS-inspired killer Sayfullo Saipov had come to the U.S. from Uzbekistan as a "diversity lottery winner" prompted President Trump to denounce the diversity lottery and to take a stab at NY Senator Chuck Schumer, despite Schumer's efforts to repeal the diversity lottery. Another day, another killing, another presidential debasement. Although pundits immediately observed the inconsistency between Trump's willingness to leap to policy action when Muslim immigrants kill versus his go-slow approach when white Christian Americans (more frequently) kill, that observation may be beside the point in this case. Even a stopped clock is right twice a day, and this time Trump may have fortuitously said something sensible.

Yale law professor Peter Schuck, writing in the New York Times, followed his condemnation of Trump's characteristic factual errors with a careful critique of both the origin of the diversity lottery (as a means of boosting immigration from Ireland) and its current impact (it crowds out family members of people lawfully here as well as people with needed skills). Much to the same effect, my colleague Steve Yale-Loehr put the point bluntly: “A lottery is a crazy way to run an immigration system.”

Professors Schuck and Yale-Loehr know more than I do about immigration law and policy. I am thus happy to concede that they--and, inadvertently, Trump--could be right that we would be better off without a diversity lottery. That said, I'd like to register at least a tiny bit of skepticism.

Monday, November 06, 2017

What Loyalty Demands of Citizens and Soldiers

by Neil H. Buchanan

Another day, another mass shooting that -- despite the seemingly endless gun violence that this country needlessly endures -- has a high enough body count to (for now) constitute front-page news.

Barely anyone noticed any of the multiple shootings in the five weeks between the Las Vegas massacre and what was quickly labeled the Texas Church Shooting, but the body count in those killings totaled 29, which is three more than the current death toll in Sutherland Springs.

We already know that there will still not be a real political debate about guns, and the people who continue to enable this carnage will return to their usual talking points about it being "too soon" to discuss policy and that the real problem is mental health (or something else, as long as guns have nothing to do with it).

For now, therefore, it seems safe to assume that Donald Trump and the Republicans will continue to promote their paranoid, macho fantasies about how none of this would be a problem if everyone had a gun.  The rest of us are left to ponder the madness.

In this column, I will address the problem of gun violence indirectly by clarifying a point that I made last week in a column about the so-called insurrectionist view of the Second Amendment, a fringe theory holding that the reason The People need to be privately armed is to be able to rise up against a despotic government.  In so doing, I will also make a larger point about the importance of soldiers' and citizens' commitment to the rule of law.

Although I devoted last week's column to debunking the purported justifications for the insurrectionist view, I may have inadvertently reinforced a presumption that seems to support that view.  Specifically, I took as a starting point for my argument an insurrectionist claim that some large number of U.S. military personnel and citizens would join in a revolt against the government.

Whether or not I left the impression that I agreed with that assertion, I want to be clear here that I disagree strongly with any such claim.  I was, instead, trying to show how crazy the insurrectionist view is even if one assumes bad things about the loyalty of members of the U.S. military -- and, for that matter, of even most gun-owning American civilians.  I emphatically do not share those cynical and insulting views.

Friday, November 03, 2017

The Tax Cut Mess

by Neil H. Buchanan

For months, I have been pointing out that Donald Trump and congressional Republicans have been offering "non-plans" to change the tax code.  Issuing press releases containing nothing more than vague bullet points -- yet somehow also making it clear that their ultimate plan would be hugely regressive -- the ruling party promised that the final plan would deliver on their years of promises of fundamental tax reform.

Well, the House's plan is now in, and it is ... not tax reform.  It is a hugely regressive tax cut, but unless there is a new definition of "reform" such that that word now means "change in various uncoordinated and unprincipled ways," then this is not tax reform, and it is certainly does nothing to fundamentally change the nature of the tax system.

Thursday, November 02, 2017

Complicity and Mandates

by Michael Dorf

In my latest Verdict column, I criticize the federal government's argument defending its initial refusal to permit a 17-year-old undocumented immigrant to temporarily leave federal custody for an abortion at private expense on the ground that thus releasing her would render the government complicit in the abortion. I explain that this is an extravagant view of complicity but that the government could be excused for thinking it might succeed because a similarly extravagant view of complicity might well have succeeded in the litigation challenging the exemption procedures from the Obamacare contraception mandate had the case not ultimately been resolved via a more or less forced settlement. There, the plaintiffs argued that having to ask for an exemption from the obligation to provide contraception insurance would itself implicate them in the provision of contraception insurance that would ultimately be provided by others. In the column, I liken that argument to the following hypothetical example:
Suppose that I, as an ethical vegan, do not wish to facilitate the consumption of animal products by others (as I most assuredly do not). It would be understandable for me to ask my boss to excuse me from, say, cooking and serving cheeseburgers at a company picnic. It would be absurd for me to complain that my boss should not make me ask to be exempt from such a duty, because when I ask, that will result in somebody else serving the cheeseburgers, which will implicate me. Even if that is actually how I feel, and even if I regard the raising, exploitation, and slaughter of cows and steers to make cheeseburgers as immoral (which I do), a definition of complicity that goes this far is unworkable.
My column then turns to Masterpiece Cakeshop and argues for a narrow definition of complicity more generally, essentially on grounds of democratic pluralism. We are a diverse People with diverse beliefs and practices. If we are to get along with one another, we must be able to understand that dealing with one another does not usually render us complicit in one another's choices. Here I want to add a few words about how that principle interacts with the difference between laws that prohibit conduct and laws that mandate conduct.

Wednesday, November 01, 2017

Writing About Law in an Avalanche: What is a Scholar to Do?

By Eric Segall

How people research and write about law has changed dramatically during the course of my academic career. Twenty years ago, although there was an abundance of relevant scholarship on most hard legal questions, there were reasonable ways of dealing with the quantity of relevant work. Today, there is virtually no way to keep up with the avalanche of high-level scholarly output devoted to most legal topics and current cases.

Tuesday, October 31, 2017

The Pardon Power is a Bug, Not a Feature

by Michael Dorf

When the news broke yesterday that former Trump campaign chairman Paul Manafort and his business partner Rick Gates had been indicted, speculation almost immediately turned to the question whether Manafort and Gates--and/or George Papadopoulos, another Trump advisor--would offer dirt on Trump in exchange for leniency. Trump channeler/potty-mouthed newly-former Twitterer Roger Stone and Trump lawyer Ty "Not that Ty Cobb" Cobb tried to throw cold water on the idea, saying that Manafort has no damaging information to share about Trump.

Maybe not, but the fact that Stone and Cobb say something is--how to put this?--not exactly irrefutable evidence of that something. Certainly the concerted efforts of Trumpologists to discredit special counsel Robert Mueller as biased because he is a professional acquaintance of fired FBI Director James Comey suggests that Trumpworld is not simply counting on the truth. Rather, the efforts to paint the longtime Republican with a reputation for integrity as a Democratic hack bespeaks at least the possibility of a backup plan in which Trump either fires Mueller (perhaps by first firing Jeff Sessions, then firing Rod Rosenstein, and then naming an acting Attorney General to do the deed) or promises Manafort and others in Mueller's cross-hairs pardons if they don't snitch.

Only the fear of political blowback stands in the way of Trump firing Mueller, but it didn't have to be that way. Had Congress not allowed the independent counsel provision upheld in 1988 in Morrison v. Olson to sunset in the wake of Kenneth Starr's pursuit of Bill Clinton, we would have on the books protections for the special prosecutor against being fired by the president based on the latter's simple unhappiness with the direction of an investigation.

But the pardon power appears to be something different entirely. Even if we still had a law insulating the independent counsel against being fired by the president, the pardon power would be available as a means of frustrating an investigation. And that is a bug, not a feature, of our Constitution.

Monday, October 30, 2017

Are NeverTrump Conservatives Better Than Anti-Trump Republicans?

by Neil H. Buchanan

Is there common ground between American liberals and some subset of the people who identify themselves as conservatives?  That is, are there meaningful issues on which -- were it not for the existence of a malignant narcissist in the White House -- something resembling middle-of-the-road reasonableness might prevail?

Sadly, we know the answer to this question when it comes to elected Republicans.  In my two most recent columns, I explained that there are no "moderate" Republicans in public office (and certainly not in the U.S. Senate, which is where America's most clueless pundits are sure that moderate Republicans most assuredly can be found), and I also argued that there are not even any "principled" or "reasonable" Republican officeholders, much less moderate ones.

It is true that a tiny number of Senate Republicans have recently taken a stand against the way Donald Trump conducts himself as president, which is a good thing and courageous in its way.  My point in my recent columns, however, was that a Trump-less Republican Party is still a party of policy extremists.  They might not approve of attacking the widows of fallen soldiers, but they are fine with (for example) taking health care coverage away from tens of millions of vulnerable Americans.

In those columns, however, I was discussing only conservatives who currently hold national office.  What about the right-leaning pundits?  Are there conservative commentators who might represent something other than the Ryan-Pence-McConnell version of enthusiastic water-carrying for the wealthy (while also doing the bidding of religious fundamentalists)?

Put differently, do the self-identified conservatives who are not worried about running for office, and who spend their time writing and talking about policy, and who have loudly and definitively rejected Trump, hold out the possibility of finding areas of policy agreement with liberals and Democrats?  The evidence is mixed at best.

Friday, October 27, 2017

The Trump DOJ's Puzzlingly Blasé View About Abortion Timing

by Michael Dorf

Acting before the Department of Justice could seek an emergency stay from the Supreme Court, an undocumented minor known in court papers as Jane Doe received an abortion just a day after the en banc US Court of Appeals for the DC Circuit ruled that the federal government could not continue to block her from doing so. Judge Millett's concurring opinion provides the chief rationale for the ruling, which was an otherwise unexplained per curium order. It is a remarkably thorough opinion, given the tight time constraints.

In a Verdict column next week, I intend to discuss one of the arguments that the government offered in its opposition to en banc review: the notion that permitting Doe to receive an abortion, even at private expense, would make the government complicit in the abortion, which the Trump administration opposes on moral grounds. I shall explain that while this is an unprecedentedly extreme view of complicity, it is the next logical step in a ratcheting up of complicity claims in recent years, first in religion cases and lately in speech cases. Spoiler alert: I disapprove of this trend.

Here I want to puzzle over another aspect of the government's position in the Doe litigation: Timing. The Trump/Sessions DOJ, in the nominal interest of protecting the unborn, took the position that a delay in obtaining an abortion raises no serious issues.

Thursday, October 26, 2017

The Continuing Extremism of Congressional Republicans

by Neil H. Buchanan

There is no question that moderation has died in the Republican Party, especially among those in the U.S. House and Senate.  From the environment to gun safety to women's rights to economic inequality to judicial appointments, congressional Republicans continue to vote in lockstep to pass an agenda that would make even Ronald Reagan cringe.

Recent events, however, have raised hopes that some of those extremely conservative Republicans will begin to act differently.  Might some, including those who are retiring -- the two most celebrated being Senators Bob Corker and Jeff Flake -- at last be willing to buck the party line and vote against the most extreme policies that their leaders have (since long before Donald Trump came along) been forcing down the country's collective throat?

Not a chance.  The underlying policy situation has not changed, with Republicans in Congress moving forward on their extreme agenda no matter what their feelings are about Trump's fitness for office or their worries about being complicit in the demise of democracy or nuclear Armageddon.  The United States Congress is still a place where elected Republicans go to give to the rich and take from everyone else.

Wednesday, October 25, 2017

Did the Access Hollywood Tape Help Trump? A Post-Weinstein Appraisal

by Michael Dorf

Watching the well-deserved fall of Harvey Weinstein, Bill O'Reilly, and other public figures who paid large sums to settle lawsuits for sexual harassment (and possibly worse), one can't help but think about the Groper in Chief: If a pattern of sexual harassment makes a man unfit to run a movie studio or to serve up daily doses of right-wing tripe on FoxNews, why didn't the Access Hollywood tape and the credible accusations of a dozen gropees sink Donald Trump's presidential campaign?

The conventional answer over the last year or so has been a variant on Trump's Fifth Avenue Conjecture. Trump famously said "I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn't lose any voters." People who supported Trump, the conjecture goes, knew he wasn't a saint but didn't care. They were in the tank for him, warts and all.

Undoubtedly there's something to that, but I want to propose a more radical--and more disturbing--hypothesis. I want to suggest that the Access Hollywood tape and Trump's general pattern of abusing women actually helped him. He didn't win the presidency despite his misogynistic misbehavior; he won the presidency because of it.

Tuesday, October 24, 2017

Is There Really More to Say About the Republicans' Supposed Moderates?

by Neil H. Buchanan

Note to readers: I have lightly edited this column at approximately 9:10pm on October 24 to incorporate the news of Senator Jeff Flake's surprise announcement that he will not run for reelection next year.

America's pundit class is terrified of the idea that there are no more moderates in American politics.  More accurately, the typical pundit (from moderate left to moderate right) is concerned that there seem to be no moderate Republicans left standing.

Simply recognizing this new reality would be threatening to the typical mainstream political writer, however, because admitting what has happened would make it necessary to saying something unacceptable: the two parties are not equally wrong about everything.  Because admitting that out loud is forbidden, these arbiters of political good taste both refuse to see moderation among Democrats and imagine moderation among Republicans.

Supposedly, polarization in both parties is driving all of our problems, and if everyone could simply learn to compromise, we would all be better off.  As themes for opinion columns go, this is safer than puppies, apple pie, or baseball.

Every now and then, I cannot ignore the twaddle any longer, and I rouse myself to writing a column that says, in essence: "Is anyone actually paying attention, or are they merely saying what they think everyone else thinks everyone is supposed to be saying?"  That question, far too often, is rhetorical.

Consider the news this week that the congressional committees investigating Russian interventions in the 2016 campaign on Trump's behalf now appear unlikely to reach definitive conclusions about what happened last year.  When Republicans try to sweep things under the rug and Democrats cry foul, that is described as "partisan fighting."  If only there were moderates out there!

We are thus going through another moment in which mainstream pundits are talking about Republican "moderates" and wringing their hands that those good people are unwilling to fight Trump's extremism.  As always, the problem is that there truly are no Republican moderates remaining in office, and those who are anointed the saviors of reasonableness simply do not fit the role.

Monday, October 23, 2017

Above The Law is Not Above Uninformed Invective: What's Their Issue With Vegans?

by Sherry F. Colb

Here is an open letter to the author of a recent essay on Above The Law:

Dear Mr. Mystal:

I had occasion last week to read your Above The Law essay, “Columbia Law Vegans Are Probably Discriminated Against, And I Assume Delicious.” It was quite disappointing, and I feel inspired to explain why.

Let me start by referencing the caption for the photograph at the beginning of the essay. It features a group of vegetables like corn and zucchini, and the caption reads “Would you kill me if I was able to look sad?” This is the only reference—and a rather oblique one, at that—to what might be motivating vegans to take upon ourselves “self-imposed ‘dietary restrictions.’” The caption suggests that vegans avoid animal products because animals “look sad” when they’re being slaughtered. Beyond this caption, if one were learning about vegans for the first time from your essay, one could be forgiven for concluding that we have no reason at all to refrain from eating and otherwise using animals. Below, I elaborate more on the caption. But I want to turn now to the issue of race.

Friday, October 20, 2017

The Double-Taxation Bogeyman Rides Again

by Neil H. Buchanan

The sales job for the White House's non-plan to change the tax system is not going well, by all accounts.  As usual, Donald Trump's lack of focus has distracted everyone, as he flits from one personal feud to another and circles back around to his obsessions with destroying the health care system and building his expensive and pointless wall.

Even so, I stand by my prediction that at some point Trump and the Republicans will pass something that -- no matter how limited or small it is -- they will call "sweeping tax reform," and the supposedly hostile press will play along.

After all, this is a group of people who held a Rose Garden celebration merely because they managed to pass a (terrible) health care bill through one house of Congress.  Imagine their victory lap even if they have done nothing more than, say, change the exclusions for the Alternative Minimum Tax or the depreciation rules for capital investment?  Imagine the lies that their in-house economists will tell of how this new bill will trickle down to the paychecks of "the forgotten people."

Although I am predicting that the talk of a big rewrite of the tax code will end in failure, it is nonetheless interesting and important to keep track of what is happening while the farce plays out.

There is one misdirection play in particular that might actually be used by both Republicans and Democrats for different purposes.  In separate areas of the tax debate, both sides might claim that they are right because it is ever so important to avoid "double taxation."  They will both be wrong.

Thursday, October 19, 2017

What to Do about SCOTUS Mistakes: A Not-So Modest Proposal

By Eric Segall

This week ProPublica issued a report with the headline "It's a Fact, Supreme Court Errors aren't Hard to Find." The group reviewed "dozens of cases" and said that it found a "number of false or wholly unsupported claims." Examples included erroneous voter registration rates in Chief Justice Robert's Shelby County decision striking down a key section of the Voting Rights Act; an unsupported conclusion by Justice Alito about the percentage of American companies that require background checks for its workers similar to the ones used for federal employees; and Justice Kagan's statements about the reliability of drug sniffing dogs in an important Fourth Amendment case. ProPublica claimed in the report to review 83 randomly selected opinions over a five year period and found assertions of "legislative facts" in 24 of those cases. The group alleged that seven of those opinions, more than 25%, contained false or unsupported statements of fact.

This report, which should trouble all Court watchers, commentators, and the American people, caught the attention of Fordham Law Professor John Pfaff, who wrote an op-ed on the problem in the New York Times. Pfaff observed that "policy is a major part of the Court's docket now" but neither the Justices nor their clerks have "any serious training" in empirical methods such as statistics. He argued that the Court has traditionally relied on amicus briefs "to provide it with that broad empirical background" but unfortunately "many amicus briefs include false or unsubstantiated empirical assertions, at least some of which make it into the Justices' opinions." Pfaff also noted that many, if not most Supreme Court cases, get to the Court after years of lower court litigation "providing interested groups plenty of time to gin favorable findings." So, in Pfaff's words, "what to do?"

Guns, Constitutional Tests, and Games

by Michael Dorf

My latest Verdict column asks whether a federal ban on bump stocks would violate the Second Amendment. The short answer is no, but as I explain, the full answer is a bit more complicated. During the litigation that culminated in the 2008 SCOTUS ruling in DC v Heller, it was taken for granted by all the lawyers and justices that the federal ban on possession and transfer of machine guns made after 1976 is valid. Indeed, as I note in the column, Walter Dellinger, arguing for DC, labored to persuade the Court that machine guns are indistinguishable (for Second Amendment purposes) from other firearms and that therefore the Court ought not recognize an individual constitutional right under the Second Amendment. The ultimate opinion for the Court strongly hints in dicta that the machine gun ban is valid, but doesn't do a very good job of explaining why.

My column argues that the actual test the Court announced for whether various types of weapons count as "arms" under the Second Amendment seems to point in favor of counting machine guns: There are enough of them in circulation--about half a million--to count as in "common use" and thus not "unusual." To be clear, I don't think the courts are actually going to invalidate the machine gun ban, but I do think that the explanation for the validity of the ban is problematic.

The column uses that fact as an occasion to discuss the validity of a hypothetical law that would ban bump stocks, but there is also a more immediate question. Various states have banned so-called assault weapons, especially semiautomatic rifles such as the AR-15. There is currently pending before the Supreme Court a cert petition by the plaintiffs who challenged Maryland's ban on semiautomatic rifles. They lost in the district court, won before a panel of the Fourth Circuit, and then lost before the Fourth Circuit sitting en banc. The cert petition alleges a circuit split regarding the proper test for determining whether arms are in "common use" but no split regarding bans on semiautomatic rifles or large-capacity magazines. Accordingly, it is difficult to predict whether the SCOTUS will grant cert.

In any event, I want to use the balance of this essay to address a contention made back in 2011 by Judge Kavanaugh in his dissent from the opinion of the DC Circuit upholding the District's semiautomatic rifles ban. All of the judges on the panel agreed that semiautomatic rifles count as "arms" for Second Amendment purposes. The question was how to determine whether a law (more or less) banning this category of arms was nonetheless valid. Applying intermediate scrutiny, the majority said yes. By contrast, Judge Kavanaugh said no, but he gave a different answer to the threshold question of what standard of scrutiny applies. Noting that courts were divided over whether strict or intermediate scrutiny applies to laws infringing the Second Amendment, Judge Kavanaugh said neither. Instead, he wrote, courts should “assess gun bans and regulations based on text, history, and tradition.” In so stating, he echoed a point that Chief Justice Roberts made during the oral argument in Heller. There is a superficial appeal to their idea, but, as I shall explain, it is unworkable.