Monday, August 21, 2017

Constitutional Arithmetic Post-Charlottesville: Sometimes One Plus One Equals Zero

by Michael Dorf
(cross-posted on Take Care)

Since the white supremacist march, rally, and mayhem in Charlottesville, some civil libertarians have begun to question whether the white supremacists were entitled to march and rally at all, in light of the fact that they were armed. For example, the Executive Directors of three large ACLU affiliates in California stated: “If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution.” Given the organization's history of defending the constitutional rights of unpopular, even repugnant, speakers, that position has been controversial.

It shouldn't be. As a simple matter of common sense, a march or rally by people who are heavily armed is not an exercise of what the First Amendment calls "the right of the people peaceably to assemble" (emphasis added). Even a child knows that. So what explains the controversy?

Part of the answer is, I suspect, is a fallacy of arithmetic. There is a First Amendment right to hold a rally or a march. There is (let us assume for the moment) a Second Amendment right to carry firearms openly in public. Thus, the logic goes, an armed march is the exercise of two rights, not just one, and should be doubly protected.

However, that logic is false. Constitutional arithmetic is not ordinary arithmetic. Sometimes one plus one equals zero.

Friday, August 18, 2017

Free Speech and Guns in 2037

By William Hausdorff and Eric Segall

Grandpa, I learned in school today that not so long ago American hate groups were allowed to march through the streets of our town, shouting threats and racial slurs at people, and to carry guns while they did that.  And that some people got killed.

I’m so glad they can’t do that anymore. Can you explain this to me?  Because I really didn’t understand it.  Is all that really true?   

Well, you're too young to remember this, but it all began to change with what happened in Charlottesville, Virginia back in 2017—just about 20 years ago. 

The Company Trump and His Supporters Keep

by Neil H. Buchanan

We have long since passed the point where it makes sense to try to compare Donald Trump's outrages.  "A new low."  "Most depressing."  "Even more dangerous." "Unprecedented in its depravity."  The inventory of negative superlatives has been depleted.  Everything, it seems, is the worst.

I will not, therefore, try to claim that there was one Trump statement in the last week that shocked me more than any other.   I will, instead, take one of his moments of awfulness as a starting point to make a larger argument.

As most observers know, Trump claimed in his indescribable press conference on Tuesday, August 15, that there were "some very fine people on both sides" of the Charlottesville protests.

Trump's claim seemed to be that some fine people marched alongside groups of men carrying Nazi and Confederate flags who were chanting anti-semitic slogans, but the company they kept does not reflect badly on them, because they were merely there to protest the removal of a statue and the renaming of a park.

Even giving a complete (and undeserved) pass to people who would defend statues and other public honoraria that exist "to celebrate white supremacy," the best response I have seen to Trump's whitewashing (unfunny pun intended, of course) of bigotry was offered by the late-night host Jimmy Kimmel:
"If you’re with a group of people and they’re chanting things like 'Jews will not replace us' and you don’t immediately leave that group, you are not a very fine person."
Failing to notice the company that people choose to keep is an act of willful moral blindness.  Any person who could say, "Well, these people shouting hateful slurs and carrying the symbols of America's defeated enemies don't make me want to leave their presence," is a person who himself is morally bankrupt.

The question is how far this extends.  And it brings into sharper focus a question about Trump's voters that far too many commentators have been failing to understand for the past two years.

Thursday, August 17, 2017

A Pregnant Minor's Best Interests

by Sherry F. Colb

In my Verdict column for this week, I discuss an Alabama law regulating the judicial bypass hearing that minors get if they cannot or will not go to their parents to obtain consent for an abortion. The purpose of the judicial bypass hearing is to allow minors who are uncomfortable approaching their parents about their unplanned pregnancy (or whose parents refuse to consent) to approach a judge instead. The judge will then decide (1) if the minor is mature enough to make the decision on her own, and (2) assuming that the minor is not mature enough, whether an abortion is in the minor's best interests. The Alabama statute was unusual in that it provided that the minor's parents, the local District Attorney, and a Guardian Ad Litem for the embryo or fetus could or would also be parties to the bypass hearing. A federal court held this unusual statute unconstitutional, and I elaborate that holding in my column, which then discusses the communicative significance of inviting a prosecutor, the girl's parents, and a representative of the embryo or fetus into the courtroom. In this post, I want to focus on one of the two questions that a judicial bypass is in place to answer: if the minor is not mature enough to make the decision on her own, then is an abortion in her best interests?

Wednesday, August 16, 2017

What's the Difference Between Confederate Leaders and Slave-owning Founding Fathers?

by Michael Dorf

Baltimore's overnight removal of Confederate statues and similar actions elsewhere raise the question also raised by President Trump in his remarks yesterday expressing solidarity with the "many fine people" who just happened to participate in explicitly racist and antisemitic events in Charlottesville: "Is it George Washington next week? And is it Thomas Jefferson the week after?" The short answer to Trump's question is that we honor Washington and Jefferson despite the fact that they owned slaves, whereas memorials to the likes of Robert E. Lee, Jefferson Davis, and Stonewall Jackson honor them because they fought for the Confederacy, a secessionist movement that had the preservation of slavery as its organizing principle.

Yet the longer answer is more complex. The nationwide movement to strip honors from people who participated in slavery and institutional racism has as its object some people whose contemporary honors can fairly be said to be based on other accomplishments. For example, the movement at Princeton to take away Woodrow Wilson's honors proceeds despite the fact that almost no contemporary Princetonians who seek to retain those honors thereby wish to honor Wilson's virulent racism or his "accomplishment" of segregating the federal workforce. Just as most Americans honor Washington and Jefferson despite rather than because of slavery, most Princetonians who honor Wilson do so despite rather than because of segregation. So what's the difference?

Tuesday, August 15, 2017

Trump Has the Opposite of a Poker Face

by Neil H. Buchanan

No one who has been paying even a little bit of attention to Donald Trump could have been surprised by his abject failure of leadership after the violent white supremacist rallies in Charlottesville this past weekend.

Trump's White House staff includes people who have built their careers by fomenting racist hatred, and Trump has enthusiastically embraced their themes and resentments.  He had no inclination to criticize a part of his base that he has actively courted.

There has already been an outpouring of excellent commentary regarding Trump's contemptible evasions.  Jennifer Rubin, a conservative columnist for The Washington Post, posted a blizzard of insightful blog entries, including one in which she decried "Trump's moral idiocy."  (On the other hand, some nominally respectable right-wingers are now busily trying to create false equivalence between Trump and Barack Obama.)

But by far the best responses thus far have come from the political comedian John Oliver, whose opening segment on his HBO show on Sunday night (August 13) offered a string of brilliant comments.  Two lines were especially devastating.

First, after showing a clip of David Duke praising Trump, Oliver dead-panned: "I've got to say, David Duke and the Nazis really seem to like Donald Trump, which is weird, because Nazis are a lot like cats: If they like you, it's probably because you're feeding them."

Then, Oliver showed a clip from earlier in the day in which Trump failed to respond to repeated opportunities to control and undo some of the damage of his earlier condemnation of violence "on many sides, on many sides."  After Trump's last failure to respond, Oliver said: "He had one last shot before the buzzer on the racism clock hit zero, and he threw an air-ball so far away it landed in the Third Reich."

Michael Dorf did a fantastic job of imagining the speech that Trump could have delivered under these trying circumstances -- not the speech that Dorf would want Trump to give if Trump were suddenly to become a progressive pluralist, but simply one that expresses "sentiments that are appropriate to the gravity of the occasion but also consistent with the views that President Trump's least objectionable supporters attribute to him."  Like all of us, however, Dorf knows full well that Trump could never deliver such a speech.

I suspect that I will find myself writing directly about those topics soon, but I want to use this column to put Trump's far-too-late, scripted attempt at damage control in the context of his tendency to say things in a way that cannot be adequately captured in written transcripts.

To put the point simply, Trump has the opposite of a poker face.  No matter the words coming out of his mouth, it is always obvious what he actually means.

Monday, August 14, 2017

Some initial steps if the Democrats are really serious. Start by looking different.

By William Hausdorff

I’m a little ashamed to admit that I already miss the Mooch.  Unlike Spicer, Huckabee Sanders, Conway, and the rest of that robotically mendacious crowd, Anthony Scaramucci, the effervescent but sadly evanescent White House communications director, appears to be occasionally capable of unprogrammed, human-like opinions.

Nevertheless, only after the Mooch was dismissed for delivering his must-read interview-rant, could I (momentarily) pull myself out of reach of the daily splattering of untreated sewage that passes for White House communication.  I decided to try to think about where Trump and the Republicans are heading. 

Saturday, August 12, 2017

The Speech A Presidential Trump Would Give

by Michael Dorf

In response to the Charlottesville violence at a white supremacist rally, President Trump condemned the "egregious display of hatred, bigotry and violence on many sides"--a statement that can be read to place primary responsibility on the white supremacists but that falls short of doing so expressly. Even if we acknowledge that some counter-demonstrators were responsible for some of the violence, does Trump mean to suggest that the hatred and bigotry come from many sides? Why does he not unequivocally condemn and separate himself from white supremacists?

The answer may well be political. Perhaps Trump fears alienating his alt-right base. If so, nothing I can say here will persuade him to do anything other than continue to issue ambiguous platitudes. Still, on the off-chance that Trump wishes to say something presidential, I humbly offer a speech for him to deliver. To be clear, this is not the speech that I would write for a president whose views I found closer to my own. Instead, it expresses sentiments that are appropriate to the gravity of the occasion but also consistent with the views that President Trump's least objectionable supporters attribute to him.

Friday, August 11, 2017

Trump and North Korea: Where is Congress?

By Eric Segall

Donald Trump might be the last person on the planet I would trust with making reasonable decisions concerning what to do about North Korea's nuclear capability. Having said that, we shouldn't trust any President with the unilateral power to commit a non-emergency, no-need-for secrecy, act of war without congressional consent. The founding fathers wanted to separate the war declaring function from the war fighting function, yet here we are in a world where the President can unilaterally start a war. Congress must act, and act now.

A Tepid Defense of the "Diversity" Rationale for Affirmative Action

by Michael Dorf

My most recent Verdict column (now also available via Newsweek) discusses the recent announcement that the DOJ is committing resources to investigating and potentially suing American colleges and universities over their affirmative action programs. I describe the potential peril that the announcement--if the DOJ follows through--holds for colleges and universities that push the edge of the envelope of what the SCOTUS precedent currently permits and even for those that hew strictly to the line between permissible "plus-factor" affirmative action and impermissible de facto quotas. For the latter, the greater danger would be another SCOTUS appointment for President Trump (or, in the event of his removal, any other Republican president).

Here I want to discuss a related issue. Defenders of affirmative action--and even some of its critics--frequently criticize Justice Lewis Powell's controlling opinion in the Bakke case on the ground that it rejected the most compelling justification for race-based affirmative action while validating a relatively weak justification. I'll offer a hesitant defense of Powell's position (which subsequently was adopted by a SCOTUS majority).

Thursday, August 10, 2017

Political Advantage and Policy Responsibility for Democrats

by Neil H. Buchanan

The Democratic Party, we are forever being reminded, has had a bad run recently.  Although I continue to believe that commentators have overstated their troubles and that Democrats' fortunes will soon improve, there is certainly no denying that Republicans are in charge nearly everywhere.

If great power implies great responsibility, however, then no power might imply no responsibility.  Are the Democrats off the hook?  When Barack Obama was in the White House, congressional Republicans exercised their irresponsibility not just during the two years that they were the minority party in both houses but even after they took back the House in 2010 and the Senate in 2014.

From budget showdowns to repeated meaningless votes to repeal the Affordable Care Act to filibustering executive and judicial nominees, the Republicans acted entirely for political gain.  And, as sad as it is to say, they were not punished for their irresponsibility.  Indeed, they thrived.

True, Republicans did win fewer seats than they could have (especially in the Senate) by running a surprising number of cuckoo-pants candidates -- "I am not a witch!" -- but they continued to win at both the federal and state levels with candidates who never took seriously the notion that they were there to govern.  Indeed, they never took any facts seriously, because everything was about ideology.

What should the Democrats do now?  They are truly in the position where they can say, "We have no power to stop you, so we are not going to do anything to help you, even if you need us to do the right thing."  Should they do that?  They answer is not as easy as I would like it to be.

Wednesday, August 09, 2017

What Matters at the SCOTUS and for Constitutional Democracy?

by Michael Dorf

Tomorrow I will be speaking on a series of panels at the 19th annual Practicing Law Institute (PLI) Supreme Court Review session in NYC, with simulcasts in various locations as well as a webcast. I have been a panelist at this event since its inauguration and am, as always, eagerly looking forward to it. In addition to returning panelists Erwin Chemerinsky, Joan Biskupic, Burt Neuborne, Ted Shaw, Sherry Colb, Marty Schwartz, Leon Friedman, and myself, this year we add Judge Sandra Ikuta. (Although co-organizers Chemerinsky and Schwartz always ask us to provide fair accounts of the Court's work, the lineup slants liberal, so they make sure to include at least one recognizable conservative. Last year we had Judge Jeffrey Sutton and Jeffrey Wall, who is now acting Solicitor General. This year Judge Ikuta will be doing the work of the two of them!)

The day is organized around various topic areas and the cases the Court decided in each topic area. I'm responsible for presenting the immigration cases, including the Travel Ban case, as well as a couple of cases on the "Business Interests and Civil Litigation" panel. I'll also have opportunities to comment on the various other cases that my fellow panelists present on these and other panels. The day begins with an overview, which is something of a free-for-all. As advertised in the schedule, one topic that will no doubt get a fair bit of attention is the impact of Justice Gorsuch. I'll say a couple of words about that--the exact couple of words will be "extremely conservative"--but I intend to use some of my time during the opening panel to highlight the threat to constitutional democracy posed by President Trump.

Tuesday, August 08, 2017

What is This Rule of Law Thing Really About?

by Neil H. Buchanan

It seems almost impossible to read about the Trump Administration without coming across yet another author who is worried about Trump's threat to the rule of law.  This threat is very real, and it is a good thing that so many commentators are shining a spotlight on Trump's lawlessness.

In the midst of Trump's maelstrom of misdeeds, however, there is a danger that we will forget exactly what is at stake when we are talking about the rule of law, a term that can all too easily become a vague abstraction (like democracy).  When we say that the rule of law is under assault, what do we mean?  Why does it matter?  What happens if it is eroded or lost?

Monday, August 07, 2017

Two Branches, Two Leaders, Two Speeches to Adolescent Boys

by Michael Dorf

The warp-speed news cycle has moved on, but I want to linger a bit over what now seems like ancient history: President Donald Trump's speech to the Boy Scouts Jamboree two weeks ago. I shall contrast Trump's speech with one the previous month to a similar (albeit smaller) crowd: The ninth-grade commencement address that Chief Justice John Roberts delivered at the Cardigan Mountain school, where his son Jack was among the graduates. The Roberts speech was everything that the Trump speech wasn't: self-deprecating; well-crafted; compassionate; and wise. The contrast tells us something profound about the differences between the men who respectively head the judicial and executive branches of our national government.

Friday, August 04, 2017

Why Does Trump Press the Lie About Voter Fraud?

by Neil H. Buchanan

Donald Trump provides so many examples of blatant and overt racism that it almost seems unnecessary to focus on less obvious evidence of bigotry.  Even so, there are important lessons to be learned from the choices that Trump makes about which issues to highlight and which fights he picks, almost all of which come back not only to his own narcissism but to his deeply racist worldview.

Ever since the 2016 election, Trump has been obsessed with proving that he won BIG.  He continues to insist that his 44th-biggest out of the 56 margins of victory in Electoral College history was a landslide, and many of his surrogates (including the ones whom he has fired) have dutifully repeated this nonsense.

But at least that particular claim can be dismissed as mere puffery, yet another example of Trump's willingness to claim that his buildings are taller than they are, that his businesses are more successful than they are, or that his "words" and "brain" are better than they are.  Ultimately, the word landslide is vague enough that most people will end up rolling their eyes and saying, "Whatever you want to call it, dude.  Get over it."

The more interesting question is why Trump is pushing so hard on the lie about the phantom illegal voters who supposedly cost him a popular-vote victory.  According to Trump, his 2.9 million-vote defeat is explained by something like three or five million illegal votes for Hillary Clinton.  This lie turns out to be very revealing.

Thursday, August 03, 2017

The Debt Ceiling for (Republicans and Other) Dummies

By Neil H. Buchanan

Republicans in Congress and their allies in the Trump Administration should have one overriding priority right now, and that is to repeal the debt ceiling statute.  Note that I did not say that their goal should be to increase the debt ceiling, although that is the more likely -- and, absent an outbreak of sanity, necessary -- path that they must follow.

The one thing that they cannot do is nothing, because that would lead to an unprecedented disaster.  The problem is that there is so much misinformation and ideological posturing about the debt ceiling that it is only too easy for fake populists to pretend that the debt ceiling is not a big deal or that other issues take priority.  They are dangerously wrong.

Even though we have been through debt ceiling standoffs multiple times over the past six years, there is still a great deal of misunderstanding about the issues and the stakes involved.  Here, I will explain what is happening, what could happen, and why the different approaches to the debt ceiling matter.

In particular, I will explain why I would stand with the Trump Administration (a statement that I never expected to make) if they took what would seem to be a radical step and ignored the debt ceiling when the time came.  With or without that, however, a huge crisis faces us unless Republicans in Congress fix this problem soon.

Wednesday, August 02, 2017

Common Sense, Legal Doctrine and Wedding Cakes

By Eric Segall

Next term the Supreme Court will hear a case brought by a baker who refused to sell a wedding cake to a same-sex couple. The baker argues that a Colorado non-discrimination law which makes it illegal to refuse to do business with people because of their sexual orientation violates his first amendment rights to freedom of speech and religion. Most scholars agree that the speech claim raises more difficult questions than the religion one, but this post focuses on the baker's claim that the Colorado non-discrimination law as applied to him is inconsistent with his right to the "free exercise of religion."

Death vs. Never Having Been Born

by Sherry F. Colb

Charlie Gard died last week. In my latest Verdict column I discuss his tragic life and the legal battle the ending of it occasioned. Charlie's parents disagreed with the boy's doctors because the former wanted to keep him alive to try an experimental treatment but the latter (the doctors) wanted to disconnect the boy from life support and give him a dignified death. In my column, I discuss what I regard as an optimal way to approach parental decision-making regarding a child's treatment, given that parents are generally the most likely people to have their child's best interests in mind.

In this post, I want to consider a different issue that emerges from Charlie's case. It is the "death versus never having been born" issue. Charlie was born with a genetic disease. His illness, mitochondrial DNA depletion syndrome, is a horrible disease that is incurable and typically kills children in infancy or early childhood. Assuming that Charlie's parents were unaware that he had this condition prior to his birth, it is possible that if his parents had known ahead of time, they may well have chosen to terminate the pregnancy. Doing so would have spared Charlie (or, more accurately, the child who would have been Charlie) the pointless suffering that he ended up experiencing.

Tuesday, August 01, 2017

Democracy, Constitutions, and Courts--Abroad and at Home

by Michael Dorf

The beginning of August for me heralds the new academic year. The registrar sends out reminders to post syllabi. The annual supplement to my casebook arrives in the mail. Despite the heat, my thoughts turn to the new batch of eager 1Ls that will shortly arrive for me and my colleagues to corrupt.

The coming semester will mark the first time I have taught constitutional law during the Trump presidency. I taught federal courts in the spring, for which various Trump policies--especially the Travel Ban--provided grist for discussion. But the federal courts issued raised by the Trump administration, like the subject in general, were somewhat technical.

By contrast, thinking about Trump and the Constitution writ large provides an opportunity to think about the very nature of constitutional democracy. Things long taken for granted--like the fact that a president would not attempt to cancel an election or refuse to accept the result of one--may now be discussed as more than fanciful hypotheticals. The distinction between stable democracies and fragile ones becomes somewhat less important as we contemplate the fragility of our own democracy. That, in turn, suggests a wider scope for comparative analysis. Accordingly, I want to consider some lessons we might learn about the relation among democracy, constitutions, and courts from recent events in Poland, Pakistan, and Venezuela.

Monday, July 31, 2017

Up In Arms: Radical Trans Critiques of Trans Military Inclusion

by Diane Klein

I first became interested in transgender issues more than two decades ago, as an academic feminist, and then, when I began studying law, as an aspect of gender and legal theory and a pressing civil rights cause. One afternoon during law school, my Feminist Legal Theory seminar at UCLA met outdoors, in the courtyard the law school shares with the philosophy department.  As I and other law students opined condescendingly about Title VII and trans issues, Talia Mae Bettcher, then a grad student in philosophy, tapped me on the shoulder and quite literally gave me my comeuppance.  A decade or so later, with every self-styled legal feminist using trans people and the legal issues they raise (and face) as metaphors and thought experiments for every other gender-related issue under the sun, Dean Spade did so again, powerfully cautioning those of us who imagine we are progressives and allies to refrain from the production of scholarship for our own advancement that only exploits and misuses the community it purports to serve.

This week's trans issue is trans military inclusion, thanks to Trump's tweets purporting to ban transgender service people yesterday.  Although the Joint Chiefs apparently intend to ignore the Cheeto-in-Chief, and the tweets are of dubious legality, they naturally ignited a social media firestorm, among trans people and their allies.

So this is a moment when allyship (for me) means leveraging my privilege to amplify trans voices (instead of putting my own two cents in). Dean Spade,  Elijah Edelman, Maria Carmen Hinayon, and  Soma Navidson all offer critiques of U.S. militarism and imperialism that shed a different light on the conversation about trans military service.

Sunday, July 30, 2017

Magic Mitch McConnell's Skinny Mirror

by Michael Dorf

In an episode of Seinfeld, Elaine buys a dress that looks good on her in the store, only to find that when she tries it on at home, it is unflattering. Outraged, she concludes that the store's dressing room was outfitted with "skinny mirrors." The episode seems an apt metaphor for the bit of theater that transpired in the Senate late last week. Say what you will about Mitch McConnell's appalling record; the man is a master magician. His so-called "skinny repeal" bill was a deeply layered trick. We may never know whether its narrow defeat at the hands of a battered-but-not-beaten John McCain was itself part of the illusion. I suspect not, but focusing too much attention on McCain simply legitimates McConnell's legislative legerdemain.

Saturday, July 29, 2017

A Former Student (Now Professor) Remembers Robert Ferguson

[Editor's Note: My remembrance of my late colleague Robert Ferguson prompted Ori Herstein to recall Robert from his vantage. Ori's memorial follows.]

For Robert A. Ferguson (1942-2017)
It was from a letter that I came to form my first impressions of Robert Ferguson.  Robert was writing to welcome Columbia Law School’s 2004 incoming class of doctoral students.  In time, he became a mentor to us all.  Looking back, much of what I came to admire in the man was evident in this first of many correspondences that we would exchange over the following thirteen years.  For Robert, self-regard and regard for those around him were like two sides of the same sheet of paper.  Which is why if he were writing to welcome his new students, he would compose an actual letter not an email.  And he would print it on posh formal stationary.  And take the time to individually address and hand sign all twelve of them.  Robert’s letter was of course well-fashioned, striking a balance between setting expectations and conveying warmth; between giving respect and garnering it.  A literary connoisseur and devotee of the English language, for him these letters served as the first opportunity of many to instill in his students his reverence for the Sisyphean craft of writing.  I still have that letter.  And I still remember how it sparked my anticipation for the hard work to come and how it made me feel bigger, welcome, and that I belonged.

Friday, July 28, 2017

Why McCain Might Not Really Have Been a Hero on the Health Care Bill

by Neil H. Buchanan

The Republicans have reached what we can only hope is truly and finally the end of the road for their obsession with repealing the Affordable Care Act.  The process was indescribably insane, especially in the last week or so, with a series of bizarre show votes that ultimately led to the Republicans' defeat.

Maybe it really is over, but we thought the same thing two weeks ago, only to watch things become even weirder.  Nothing would surprise me at this point.  We might never hear about health care legislation again, or we could within days or even minutes discover that the game is back on.

In any event, the key vote in that please-let-it-be-final showdown was cast by Senator John McCain.  Is that vote proof that, at long last, he truly is the principled maverick that he has long portrayed himself to be?  Perhaps, but I think that there is a better, more cynical explanation.  But first, we need to figure out what McCain's colleagues were thinking during this never-ending farce.

Thursday, July 27, 2017

Senatorial Incapacity Or, Why John McCain Should Not Be Casting Votes

by Diane Klein

On May 30, 2017, my 77-year-old father died, of an aggressive adenocarcinoma that began in the pancreas and metastasized to, among other places, his brain. His cancer was diagnosed March 19, 2017, and he underwent brain surgery on March 29, 2017, to remove a tumor the size of walnut (or a golf ball - it's all foods and athletic equipment with these things) from between his frontal lobes.  The craniotomy and brain surgery were a "success" - he healed more or less without incident, and when he died, you could hardly see the scar.

Why do I mention this? Two reasons.  First, it allows me to be critical of a terminal brain cancer patient like John McCain without seeming callous. (Though not quite as critical as this guy.) But second, although my father's cancer was of a different kind than McCain's, my interaction with him gave me an up-close look at a smart, strong, but sick and elderly man laboring under a brain disorder of whose cognitive consequences he seemed not entirely aware.  And it gave me a chance to witness the dynamic by which the patient and those closest to him conspire so that everything can feel like things are still normal.

That the loved ones of a dying man want desperately to believe that he is or will be "fine," and ignore evidence to the contrary for as long as they can, is sad but natural and understandable.  That the Senate Republicans (and, it seems, many Democrats) are willing to do the same, for political ends - for Republican healthcare legislation, no less!, is simply ghastly.  McCain should have stepped down upon receiving this diagnosis and anointed a successor.  He is not fit to serve, or to vote in his representative capacity - no matter how useful Republicans may find him.

Wednesday, July 26, 2017

The Long Path to Universal Coverage

by Michael Dorf

The legislative free-for-all currently unfolding in the Senate will test the proposition that it is impossible for a small-d democratic government to repeal a major entitlement program. Conservatives who opposed the Affordable Care Act fought so hard to block it in the courts before it went into effect and then before it became too entrenched because they believed--as did progressives who defended the ACA--that what psychologists call the endowment effect would protect the ACA. The endowment effect makes people value something they already have more highly than something they don't. That psychology certainly operates among the public, with polls showing that there is much greater support for retaining the ACA than for any of the GOP proposals to repeal or repeal-and-replace.

If Congress nonetheless manages to repeal or, more likely, weaken, the ACA, that will not be a refutation of the existence of the endowment effect. It will merely be a demonstration of the undemocratic features of our national government--especially the grossly disproportionate representation given to small states in the Senate and gerrymandering in the House. Even then, passage of an unpopular repeal (skinny or otherwise) or repeal-and-replace would not necessarily stand as a condemnation of American democracy unless and until Republican Senators and House members fail to pay a price at the polls.

Meanwhile, however, most of the attention currently being paid to the congressional drama overlooks the endowment effect in reverse. When asked whether it is a good idea to strip 22 or 23 million people of their health insurance, most Americans have the good sense to say no. The unasked question is whether it is also a good idea not to provide health insurance to the 26 million Americans who still lack it.

Can Lawyers Ameliorate the Trumpian Threat?

by Michael Dorf

My latest Verdict column takes issue with the tendency of the punditocracy to call every political issue with constitutional overtones a "constitutional crisis." I adopt and build a little on the typology of crises set forth in an insightful 2009 University of Pennsylvania Law Review article by Sandy Levinson and Jack Balkin. I conclude that the possibility of a presidential self-pardon--while despicable--would not plunge us into a constitutional crisis, because our existing institutions could readily resolve the legal question whether a president has the power to issue himself a valid pardon.

Of course, the particular institution that would ultimately resolve the question concerning self-pardons is the U.S. Supreme Court--either by deciding itself or denying review from a decision by a lower court. I don't mean to say that the courts will save us from Trump more generally. In the column I point to genuine constitutional crises that Trump may be spawning and which the courts will not be well positioned to block. Just what role law and the courts will play in reining in Trump is perhaps the most important question for persons with legal training who see Trump as an existential threat to liberal democracy.

Tuesday, July 25, 2017

Veganism, Year Nine: Why Do Hipsters Mock Vegans?

by Neil H. Buchanan

In July 2008, I became a vegan.  Every year since then, I have celebrated my "veganniversary" by writing a column specifically on the subject of veganism.  Here are links to previous years' columns: 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, and my two original posts from 2008 (here and here).

Because Professors Colb and Dorf have covered the scholarly aspects of ethical veganism so well -- most importantly with their masterful 2016 book Beating Hearts: Abortion and Animal Rights -- I have generally (not always, but usually) used my posts to focus on the day-to-day experiences of being a vegan, in particular analyzing the way that vegans are treated and portrayed in popular culture.

Today, I will focus on the way that hipsters treat vegans.  Why hipsters?  The simple fact is that they are the group that is most comfortable with veganism, in part because there are so many hipster vegans.

Monday, July 24, 2017

The Politics of Mean

By Eric Segall

The President of the United States is one of the few democratically elected leaders in the world who is both the administrative leader of the government and the symbolic head of the Country. In many nations, these roles are divided between a President and a Prime Minister or even a Prime Minister and royalty with no official governmental responsibilities. This dual capacity of our Chief Executive makes it imperative that the President carry out his duties with class and character because his behavior has a role-model quality that affects not just our youth but our entire national character. This is why I thought Bill Clinton should have resigned the Presidency after we found out that he lied under oath about having sexual relations with a White House intern. His basic defense, that having oral intimacy is not “having sex,” I believe, had negative consequences for a generation of young Americans, and his obvious lying and truth-cutting was not the kind of behavior we want from an American President.

The hallmark of President Trump’s Presidency, so far, is the politics of mean. Trump’s behavior strongly suggests that it is okay to respond to the professional with the personal. Over the last couple of days, Trump used Twitter to repeat his campaign nickname for the former Senator from New York, Secretary of State, and First Lady, “Crooked Hilary.” He also called congressman Adam Schiff “sleazy.” Of course, these insults are just the tip of the iceberg.

Note to President Trump: You Already Own It

by Michael Dorf
(cross-posted on Take Care with some minor updates here)

Last week, as the latest Senate GOP effort to repeal and replace the Affordable Care Act (ACA) failed, President Trump voiced support for simply repealing the ACA, with a replacement to come later. When that Plan B (which had originally been Sen. Mitch McConnell's choice for Plan A) failed a few hours later, the president quickly moved on to Plan C: "We'll just let Obamacare fail. We're not going to own it. I'm not going to own it. I can tell you the Republicans are not going to own it."

Although the very next day the mercurial president attempted to strong-arm GOP Senators into making another push for Plan A, that approach looks likely to fail, even if Plans A and B make it to a floor vote this week. Thus, for the near term it looks like Trump will be following his Trotskyite the-worse-the-better Plan C. While a clear violation of his oath to take care that the laws be faithfully executed, not to mention immoral, there is a question whether it will work as a political matter. Is Trump right that by "letting" (about which more below) Obamacare fail, the GOP won't own that failure?

As the president himself might say . . . WRONG! Announcing that you are going to let Obamacare fail means that you own it. Or at least it should.

Sunday, July 23, 2017

Christopher Nolan, the Trump of Dunkirk, Misses the Boat

By Diane Klein

In "Dunkirk," Christopher Nolan (of "Interstellar" and "Dark Knight" fame) has given us a war movie only Donald Trump could love.  Full of bombast and spectacle, it is ignorant of history, devoid of nuance, frequently unintelligible, and ineloquent.  It is a movie by, for, about, and starring handsome Anglophone White men, and reflects a view of history in which only their lives matter.

The film's subject is the evacuation from Dunkirk in Northern France, of more than 300,000 Allied troops, mostly the British Expeditionary Force but also French, Belgians, and others.  The evacuation occurred between May 26 and June 4, 1940 - but the film takes place in what critic David Edelstein calls "Nolan time" - "cutting among several locations in several timelines." However effective this may have been in "Memento," here, it serves mostly to confuse and distract. Nolan's film doesn't tell us what year it is, much less what day - but perhaps that is because he can't.

Friday, July 21, 2017

The Prime Directive Is to Protect the Rule of Law

by Neil H. Buchanan

The transcript of Donald Trump's recent interview with the editors of The New York Times could simply be titled: "The Case for Dictatorship: A Child-Like Narcissist's Guide to Destroying America."  As soon as Trump started talking, he revealed for the umpteenth time that he is unwilling or unable to understand the limits on the president's power.

And now we learn that Trump has his minions investigating imaginary conflicts of interest that they can use as "leverage" against Special Counsel Robert Mueller and his team of investigators.  Trump even has his people talking about abusing the pardon power, including the possibility of pardoning himself.  He is, at long last, truly Nixonian: When the president does it, that means that it is not illegal.

Trump clearly believes that ethics rules are for suckers and non-presidents, and his claim that his toady of an attorney general, Jefferson Sessions, was "very unfair" for recusing himself from the Russia investigation tells us all we need to know about Trump's version of accountability.

Trump even attacked his own deputy attorney general, Rod Rosenstein -- who has probably done more than anyone else to destroy his reputation by working for Trump -- because Rosenstein is from Baltimore.  Why is that a problem, in Trump's addled mind?  "There are very few Republicans in Baltimore, if any."  As the kids say: WTF?!

Thursday, July 20, 2017

2017: Now Officially The Summer My Professional Responsibility Exam Questions Wrote Themselves

By Diane Klein

On July 17, 2017, The Rachel Maddow Show on MSNBC featured a segment about the latest allegations of financial wrongdoing involving Paul Manafort, Donald Trump's second campaign manager and attendee at the now-notorious Trump Tower meeting with Russian lawyer Natalia Veselnitskaya.

As part of that story, Maddow mentioned that Manafort is represented by Reginald Brown, a partner at Washington, D.C.-based megafirm WilmerHale.  Manafort hired him back on March 24, 2017.

For those who don't know, the law firm with the name that sounds like hipster beer is the result of a 2004 merger between Wilmer, Cutler & Pickering, and Boston-based Hale and Dorr.  It employs more than 1000 lawyers, 400 of them in D.C., the others spread over eleven more offices.  And virtually every lawyer associated with the Trump-Russia scandal is connected to it.

Wednesday, July 19, 2017

What's Wrong With Shotgun Weddings?

by Sherry F. Colb

My column for this week discusses the current state of California law, under which there is no minimum age requirement for marriage. There is a bill under consideration that would modify the law somewhat, but it has been amended to remove the age of 18 requirement and thus only adds some oversight in family court to prevent coercion. As I discuss in my column, the California statutory rape law, which requires that a person be 18 to consent to sex, suggests that sex with minors is inherently coercive and therefore not properly subject to oversight rather than outright prohibition.

In this post, I want to discuss one of the reasons that people cite for permitting children to get married, with parental (and court) permission: an unplanned pregnancy.

Tuesday, July 18, 2017

Freedom Apparently Means Whatever Republicans Need It to Mean

by Neil H. Buchanan

The Republicans' ongoing effort to take away health care coverage from tens of millions of people is probably only on hold.  In any event, their attempt to pass the Trump-McConnell bill has just "collapsed," because Senators Jerry Moran and Mike Lee have joined Rand Paul and Susan Collins in publicly opposing the bill.

That is a very good thing, of course, and I should take a moment to applaud Senator Collins, whom I have bluntly criticized many times over the last few years.  On this bill, hers was a public position that actually mattered, not a "free vote" or a statement of "concern" that then was not backed up by action.  Because the bill was unconscionable, she took a public stand against it.  I hope that she stands up like this again in the future, on health care and other issues.

Unfortunately, the other three Republican opponents of the bill -- Paul, Moran, and Lee -- did so because the bill was not harsh enough.  Apparently, Senator Ted Cruz's add-on to the bill, which saw him explicitly choosing full public funding for some health care recipients in order to give insurers the "freedom" to offer junk insurance policies to others, was too government-y for Paul and the others.

All of which means that Republicans' efforts to take away health care from vulnerable people is currently in limbo only because one of them was appalled enough to say no while three said, "Can't we make this even worse?"  Who knows how many Senate Republicans will sign onto something that the hardliners could support?

But there is another aspect of the Trump-McConnell bill that is worth considering, which is the Republicans' strategy to replace the dreaded "mandate" to buy health insurance.  It turns out that people's freedom to contract is sacrosanct to Republicans, unless that freedom must be sacrificed in order to destroy Barack Obama's Affordable Care Act (ACA).

Monday, July 17, 2017

Justice Gorsuch and Foolish Formalism

By Eric Segall

Last week, Professor John McGinnis wrote an essay at the Law & Liberty Blog praising Justice Gorsuch for his commitment to a “formal conception of law.” While others have criticized Gorsuch for his aggressive questioning and decision-writing so early in his SCOTUS career, McGinnis defended Gorsuch, arguing that his confidence stems from Gorsuch’s view that a “lawful judge should render judgment on the basis of his best judgment about the meaning of statutory and constitutional provisions that are put before him or her and candidly set out the reasoning in support, regardless of the political consequences and regardless of what others think.”  According to McGinnis, being a Supreme Court Justice for a formalist is "no different from being any other kind of judge.”  Because Gorsuch is an “experienced judge” who believes in formalism, he “was able to act forcefully from day one on the Supreme Court.”

Professor McGinnis is a respected scholar. His views on originalism, in a book he wrote with Professor Michael Rappaport, are interesting, provocative, and need to be taken seriously (which I do in my forthcoming book). But this praising of Justice Gorsuch, and his commitment to formalism, is both unpersuasive and dangerous.

Friday, July 14, 2017

This Is What One-Sided Dishonesty Looks Like

by Neil H. Buchanan

Faced with the historic unpopularity of his health care bill, Senate Majority Leader Mitch McConnell responded by making it even worse -- or, as the sub-headline to a New York Times editorial put it, Senate Republicans "found a way to make a horrible bill truly hideous."

This is not surprising, I suppose, although McConnell did manage to make it worse than even I cynically predicted earlier this week.  The new window dressing is even more minimal than expected.  Moreover, he adopted a proposal offered by the much-beloved Senator Ted Cruz, who figured out how to indirectly destroy the highly popular provision in the Affordable Care Act that prevents insurance companies from denying coverage to people with preexisting conditions.

As Donald Trump might put it: mean, mean, mean.  My focus here, however, is not on the Republicans' attempt to deny health care to millions of people, as shocking as that is.  Instead, I want to put this latest truckload of Republican dishonesty into some context.

Latest Travel Ban Ruling Helps A Lot But Not Enough

by Michael Dorf

Judge Watson just issued an order and opinion granting the plaintiffs' request to enjoin the government's narrow interpretation of the SCOTUS interim ruling in the Travel Ban Litigation. Procedural junkies wondering how, given that just a week ago he denied that he had the authority: The prior motion sought "clarification" of the SCOTUS order; Judge Watson said only SCOTUS could clarify; the Ninth Circuit agreed but helpfully added that Judge Watson could grant specific injunctive relief; that's what he did.

The new order expands the list of relatives and others who count as "bona fide relationships" to include "grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States." It also overrules the Trump administration by classifying an approved refugee's relationship with a resettlement agency as bona fide. And the order disposes of the plaintiffs' other requests, granting some and denying others. We can expect an almost immediate appeal to the Ninth Circuit, which I expect, will not disturb the injunction, and if that happens, the DOJ will try to go back to the SCOTUS on an emergency basis. I won't hazard a prediction about whether the Court would disturb this injunction before it reconvenes in October.

Thursday, July 13, 2017

Trump Jr. and Citizens United

by Michael Dorf

Despite its title, this is not an essay about whether Donald Trump Jr. violated federal election law by "solicit[ing]" a "thing of value" from "a foreign national" when he eagerly agreed to meet with a Russian lawyer acting on behalf of the Russian government for the purpose of receiving damaging information about Hillary Clinton's supposed Russian ties. I accept both that it is a somewhat unresolved question whether such information constitutes a "thing of value" under the statute and also that there is enough authority for the view that information alone can be a thing of value so that prosecuting Trump Jr. (and Jared Kushner and Paul Manafort) for their meeting with Natalia Veselnitskaya knowing what they knew would not constitute such a surprising interpretation of the statute as to violate the so-called rule of lenity (under which ambiguities in a criminal statute are resolved in favor of the defendant).

Nor is this an essay about whether construing federal election law to forbid the receipt of valuable campaign-related information from a foreign government agent--even if it was lawfully gathered, which Trump Jr., Kushner, and Manafort had no reason to assume Veselnitskaya's proffered information was--can be forbidden consistent with the First Amendment. I agree with Rick Hasen that if there are free speech concerns with some applications of the law under consideration (52 U.S.C. § 30121), the right approach would be either to construe the law so as not to reach such applications or to invalidate the statute as applied, not on its face. Thus, no one should read this essay as a defense of Trump Jr. or anyone else in the Trump campaign.

So what is this essay about? Simply put, I want to suggest that in a perfect world Section 30121 would distinguish between foreign governments involving themselves in U.S. elections and foreign nationals doing so. Unfortunately, we don't live in that perfect world because of the Supreme Court.

Wednesday, July 12, 2017

Would Trump's Defense In The Zervos Case Be Stronger If He Had Groped More Women?

by Michael Dorf

My new column on Verdict examines an argument set forth in the memorandum in support of the motion to dismiss that President Trump's lawyers have filed in the Summer Vervos case. Vervos, recall, is a former contestant on The Apprentice who sued Trump in January for defamation based on his calling her a liar. The allegedly defamatory statements were contained in Trump's response to the women who came forward contending that Trump had at one time or another acted towards them in ways much like what he described to Billy Bush on the infamous Access Hollywood recording. Trump repeatedly stated that his accusers were not merely mistaken but that they were liars.

The argument my Verdict column considers is Trump's contention that calling his accusers liars was mere hyperbole and fiery rhetoric that cannot be actionable because, in the context of a heated political campaign, these statements were opinion rather than claims of fact. I conclude that Trump's arguments on this point are weak.

Here I want to address two of Trump's other arguments made in the dismissal brief. First I'll revisit the contention that Clinton v. Jones--which allowed a damages action by a private plaintiff for pre-presidential conduct to go forward against a sitting president--does not apply in state court. Second, I'll consider the contention that Trump cannot be held accountable for defamation because the allegedly defamatory statements do not mention Zervos by name.

Tuesday, July 11, 2017

Moderate Cruelty in Health Care Reform

by Neil H. Buchanan

Although the news is once again being dominated by the latest bombshells about the Trump campaign's collusion with the Russian government during the 2016 election, the Senate is again moving toward a possible vote on their deservedly unpopular bill to repeal the Affordable Care Act (ACA).

The Republicans' ACA repeal effort quite literally means life and death for millions of Americans, and the only question is whether at least 50 out of 52 Senate Republicans will support Mitch McConnell's efforts to score a legislative victory on the backs of poor children, the elderly (most of whom have never been poor in their lives), and the working poor and near-poor people who do not receive health insurance through their jobs.

As I will describe below, defeat of the Trump-McConnell bill will understandably be called a victory for "moderation."  Nonetheless, it is important to keep in mind that even if the bill is killed by three dissenters, that will mean that 49 Republicans and Mike Pence would have been willing to vote for this exercise in cruelty.

Monday, July 10, 2017

A Personal Remembrance of Robert Ferguson

by Michael Dorf

Robert Ferguson died last week. I urge readers who are unfamiliar with Robert and his work to read the official obituary at the Columbia Law School website. It gives a good sense of Robert's place in the academy as a towering interdisciplinary figure in the world of law & literature as well as his fundamental decency as a human being. Here I want to reflect a little on the man I knew and the lessons that we might all learn from the example of his life.

Friday, July 07, 2017

Judge Watson is Either Definitely Wrong or Possibly Wrong

by Michael Dorf

Judge Watson's order declining to grant Hawaii's motion for clarification that "close relatives" includes grandparents (contrary to the executive branch interpretation of the SCOTUS decision in the Travel Ban case) rests on the view that the Supreme Court issued the underlying order, so it is up to the Supreme Court to clarify it. Insofar as Judge Watson meant that he, as a lower court judge, has no business clarifying unclear language by the Supreme Court, that's plainly wrong. Much of what lower court judges do in deciding questions of law is to clarify the meaning of decisions of higher courts. Ilya Somin, writing on the Volokh Conspiracy, is clearly right in criticizing Judge Watson on this point.

However, there is another, better way to read the order by Judge Watson. He is not saying that he lacks power to clarify the SCOTUS language. He is saying instead that while the case is before the Supreme Court, a motion for clarification of a Supreme Court order--as opposed to his own order--should go to the SCOTUS. He could still be wrong about that, and Hawaii has appealed to the Ninth Circuit. But the rules and standards governing what a lower court may do with respect to a case that is on appeal are sufficiently complicated, that his ruling in this regard is not crazy. Possibly wrong, mind you. But not crazy.

Thursday, July 06, 2017

The Meaning and Challenge of Intersectional Activism

by Michael Dorf

This week Prof. Colb and I are attending and speaking at Vegetarian Summerfest, an annual vegan conference with presentations focusing on multiple aspects of the vegan movement, especially nutrition, animal rights, and environmental issues. (It's called "vegetarian" for historical reasons, but the conference promotes and practices veganism.) Yesterday, we gave a joint talk titled "Animal Rights, Abortion, and Capital Punishment," which focused on issues raised in our book Beating Hearts: Abortion and Animal Rights, while experimenting with some ideas for a potential new book about the regulation of capital punishment and the regulation of animal slaughter. Each of us is also giving two solo talks. My talk today is titled "Intersectional Veganism." Here is the description from the program:
Some social justice activists promote “intersectionality”—the idea that various forms of injustice are connected. Intersectionality presents the vegan movement with opportunities and challenges. By making common cause with those who favor civil rights, women’s rights, LGBT rights, and others, we broaden our base. Yet given political polarization, intersectionality can also alienate potential allies. Let’s discuss our experiences.
In this post, I want to preview some of the themes of the talk, which should apply broadly to a variety of social and political movements. I will begin by distinguishing between two different ways in which the term intersectionality has been used.

Wednesday, July 05, 2017

An Unqualified Right to Die

by Sherry F. Colb

In my column for this week, I discuss a case in which a judge found a woman guilty of involuntary manslaughter for texting her boyfriend messages repeatedly urging him to commit suicide immediately, which he ultimately did. The column raises some potential objections to holding the woman who texted messages accountable for the actions of her boyfriend, including the freedom of speech, the right to die, and the notion that the victim's own actions superseded what his girlfriend said beforehand as the causal agent of his death. The column concludes that the judge was right to hold the girlfriend accountable, notwithstanding the various objections.

In this post, I want to elaborate on my view that a competent individual (i.e., one who understands what he is doing) ought to have a right to die, a point I make in passing in the column when discussing the right to die. The Supreme Court, in Washington v. Glucksberg, has rejected a right to physician assistance in dying, even for the terminally ill, and only six states and the District of Columbia recognize a right to assistance in dying. In those states, moreover, the right extends only to the terminally ill. I would recognize a right to die (and to assistance in dying) for anyone who wishes to end their life.

Tuesday, July 04, 2017

How do You Say Happy Birthday (and Remain Sane) in the Age of Trump?

By Eric Segall

Today is the 241st birthday of the Declaration of Independence. We treat July 4th as our country's birthday. Who feels like celebrating?

A related question is what does a sane person do when he looks around and sees madness everywhere? The President of the United States is exercising his power as if his office is the ultimate fantasy of a reality television star. He cares much more about ratings, insults, popularity, and revenge than sound policy, or policy of any kind. His top two advisers appear to be his 37-year-old son-in-law who has no experience governing, and a 64-year-old former media executive who might well like to see the world implode, and appears to be both a sexist and a racist. In any event, he too had zero government experience before walking through the White House doors.

The Secretary of State is the former CEO of Exxon, there is no FBI Director, the Sectary of HUD knew nothing about housing upon ascending to that office, while the EPA is now headed by one of the environment’s most formidable foes. The Secretary of Education detests public schools and likely couldn’t pass an eighth-grade civics test. Many high level executive branch vacancies remain unfilled (which I guess might be a good thing).

The Supreme Court of the United States is one vacancy away from turning sharply to the right for several generations. Rights we now take for granted may be lost, and rights big companies and the rich covet are likely just around the corner.

And the Congress, what can I say about the Congress? The Senate Majority Leader and the Speaker of the House can’t even bring themselves to meet the President in person and timidly suggest that tweeting out pro-wrestling videos smashing CNN, or personally insulting morning anchors with apparently false descriptions of bleeding facelifts, does not honor the Office of the President. These two men are, above all else, cowardly keepers of the partisan flames.

So, how do we celebrate our country’s birthday, and how do sane people keep their heads? I don’t know. All I can do is love and be thankful for my family, friends, and colleagues and keep them close both emotionally and physically. I can hope that this psychotic phase we are in will someday be just a period in time that was scary but didn’t cause permanent harm to the nation. I can hope that America is so rich with people of compassion, energy and good will that the 2018 elections will turn out differently, and the country will start climbing back. Hope is essential to birthday celebrations and to keeping one’s sanity. At least for me.

Most of all, on this birthday, I want to remember that we did eventually overcome the sin of slavery. That formal racial apartheid in this country is a thing of the past. That Joe McCarthy and Richard Nixon, though on top for a while, didn’t stay there. That although we are far from perfect, this country has seen a steady progress to a better, fairer society for all.

We Americans don’t run from adversity. Maybe that has something to do with our great western spirit and our urban toughness, I don’t know. Although we have taken a giant step backwards, I refuse to lose faith in my country and its people. Today I'll celebrate our past (not our present), and hopefully our future. Those are certainly worth celebrating.

So, Happy Birthday America, but not to you Mr. Trump.

Monday, July 03, 2017

Can Non-Sentient Entities Have Interests? (and Other Questions Raised by a Recent Review of Our Book)

by Michael Dorf

The latest issue of Between the Species, an online philosophy journal, contains a review by Philosophy Professor Mylan Engel, Jr., of my book with Professor Sherry Colb, Beating Hearts: Abortion and Animal Rights. (Engel's paper is styled an "article" because it is substantially longer than most of the book reviews the journal publishes, but for simplicity I'll call it a review.) Engel's review is generous and thoughtful. Professor Colb and I are grateful for his overall assessment and especially for his conclusion that our book "would make an exceptionally useful supplemental text for any contemporary moral issues course that includes sections on abortion and animal ethics," including his own such course.

As one would expect from any serious scholar, even though Engel agrees with our core thesis and argument, he does not spare us criticism with respect to areas of disagreement. In this essay, I'll respond to a number of Engel's critiques. By way of preview, Engel's most pointed criticism addresses our contention that abortions of pre-sentient fetuses are not immoral because an entity that is not and has never been sentient lacks interests and thus cannot be harmed. Engel's review expands on points he made at a panel on our book in 2016, and my response here will largely track what Professor Colb said in response at the time. I'll also address a number of Engel's other points. However, before taking the gloves off, as it were, I want to re-emphasize that I am truly grateful for Engel's serious engagement with our book. As a scholar, it is much better to be vigorously critiqued than blandly praised or, much worse, ignored.

Saturday, July 01, 2017

SCOTUS Takes On The "Cake or Controversy" Requirement, or, The Queer Motorist's Lavender App

By Diane Klein

In 1936, a Black New York City postal worker named Victor Green began compiling and publishing a travel guide - a pamphlet, really - that came to be known as "The Green Book."  Published annually for thirty years, growing from a local New York guide into an international travel directory, this booklet included lists of establishments - "Hotels, Taverns, Garages, Night-Clubs, Restaurants, Service-Stations, Automotive, Tourist-Homes, Road-Houses, Barber-Shops, Beauty-Parlors," "Trailer Parks and Camps, Summer Resorts" - that would serve Black patrons. Without such a guide, travel throughout much of the United States during the Jim Crow era was, at best, uncomfortable - and at worst, a mortal danger.  With nowhere to safely sleep, eat, or even refill the gas tank, a car trip was more daunting than inviting.  The Green Book aimed to fill that gap.

Friday, June 30, 2017

Why Does it Matter That America Is Now a Villain?

by Neil H. Buchanan

The annual Independence Day holiday festivities provide an opportunity to reflect on the unique place that the United States holds in world affairs, for better and for worse.  How much worse has it become because of Donald Trump?  And does it matter?

Back in 2008, as the Bush era was ending and we were attempting to assess the disturbing legacy of the Bush/Cheney Administration -- the falsified case for the Iraq invasion, the horrors at Abu Ghraib prison that had been perpetrated by U.S. Army and CIA personnel, the ongoing human rights disaster that was (and still is) the Guantanamo Bay prison, and on and on -- it had become obvious that the reputation of the United States as a beacon of hope had taken a huge hit in the eyes of the world.

In December of that year, I wrote a short essay, "Our Reputation Matters," expanding on an editorial in The New York Times that had argued for closing Guantanamo as a matter of both moral imperative and national self-interest.  The key argument in that editorial was that the world would not continue to follow the leadership of the U.S. if we were to continue -- especially, I would emphasize, under our new and idealistic president-elect -- to violate all standards of justice and decency by keeping the prison open.

We now know that Republicans and many Democrats prevented President Obama from delivering on that campaign promise.  Even so, U.S. standing and leadership in the world generally improved during the Obama years.  And now we have Trump.

Thursday, June 29, 2017

The 2016-17 Term: What a Court it Could have Been

By Eric Segall

If you are angry or worked up about the Supreme Court’s decisions this year, please raise your hand. That’s what I thought. Whether one is liberal, conservative or somewhere in-between, there are not many folks terribly upset about the 2016-17 term. Sure, some may disagree with the Court’s anti-historical free exercise decision in Trinity Lutheran, while others might argue over whether the lower courts’ injunction of the travel ban should have been kept in place in full or lifted altogether. Others might have wanted the Court to grant cert in a big gun case while others would have preferred the Court not to grant cert in the wedding baker case. But overall, compared to the last few (meaning like ten) terms, this last week of June is much calmer than previous years.

Wednesday, June 28, 2017

Making Sense of the SCOTUS Per Curiam in Arkansas SSM Birth Certificate Case

by Michael Dorf

In Pavan v. Smith, the SCOTUS issued a per curiam opinion reversing the Arkansas Supreme Court's decision upholding an Arkansas statutory scheme under which the husbands of women who give birth are listed as fathers on the children's birth certificates but the wives of such women in same-sex marriages (SSM) are not. The reversal relied on the 2015 recognition of a constitutional right to SSM in Obergefell v. Hodges. Because only three justices (Gorsuch, Thomas, and Alito) were recorded as dissenting, speculation immediately ensued about whether there were six votes for the result. If so, that would mean that Chief Justice Roberts, who dissented in Obergefell, has accepted the ruling as settled law.

However, as Joshua Matz explains on Take Care, we do not know whether the per curiam garnered five or six votes, because a justice can dissent from a summary action without publicly registering a dissent. I agree with Joshua that Pavan does not tell us much about where the Chief Justice now stands. For what it is worth, I think the odds that he would cast a fifth vote to overrule Obergefell are rather low.

The gist of the Roberts dissent in Obergefell was that the legal status of SSM should be left to the American people, but with support for the institution trending up, the issue could well look like harmless error to him--much in the way that many judicial conservatives who think the Constitution contains no right to contraception nevertheless do not want to spend their energy trying to overrule Griswold v. Connecticut. Thus, even were one of the members of the Obergefell majority to leave the Court while the GOP continues to control the presidency and the Senate, SSM would very likely remain legal throughout the land. (I have much less confidence about the continued vitality of a constitutional right to abortion under such circumstances.)

So much for the big picture. The Pavan case itself presents a puzzle, because the per curiam characterizes the state of the law in Arkansas very differently from the characterization that appears in the dissent. Who's right? (Spoiler alert: The per curiam is right and the dissent is wrong.)

Tuesday, June 27, 2017

Supreme Court Border-Shooting Non-Decision Confirms My Fears Regarding Bivens Actions

by Michael Dorf
(cross-posted on Take Care)

Yesterday's SCOTUS ruling in Hernandez v. Mesa decided one question and punted on two. After explaining what the case decided and what it did not, I'll explain why one of the punts confirms my fear--expressed in a DoL post last week that was cross-posted on Take Care--that federal civil rights actions against federal officers are practically a dead letter.

Here's My Travel Ban Cert Grant Column

by Michael Dorf

By late morning I will post some thoughts on the cross-border shooting case, Hernandez v. Mesa. For now, interested readers can get my take on the cert grant and accompanying order and opinion in the Travel Ban case, now known as Trump v. International Refugee Assistance Project, by reading my latest Verdict column.

Monday, June 26, 2017

Trinity Lutheran and the Death of the Case or Controversy Requirement (Until it Lives Again)

By Eric Segall

Of all the Court's zigzagging, implicit reversals, and outright reversals permeating constitutional law cases, perhaps the most incoherent doctrine of all is justiciability. Legal scholars across the political spectrum agree that the Court's standing, ripeness, and mootness doctrines have been manipulated by the Court over and over to reach whatever result the Justices prefer that day. These three doctrines derive from Article III's requirement that all federal cases involve a "case" or a "controversy." Before today, one thing that we thought was true was that the Justices would not decide advisory opinions or hear hypothetical disputes where both parties are in complete agreement on all the issues in a case. Sadly, even that rule is no longer true,

Today the Supreme Court decided Trinity Lutheran Church v. Comer, an important case raising high stakes about the separation of church and state. The Missouri Constitution has prohibited any public money going to religious institutions since the 19th century. Trinity Lutheran challenged this categorical exclusion when it was denied an opportunity to compete for state funds to improve its playgrounds. The lower courts upheld the state constitutional provision which exists in many other states. The case is difficult because, while most people agree that state aid cannot go to the religious mission of private schools, and while most people believe that police and fire protection cannot be denied to religious groups simply because of their religiosity, this case falls in the middle of those easy cases. The Court's decision that the law violated the Free Exercise Clause is extremely important but I will leave it to others to flesh out those implications. My complaint is that the Court should never have decided this case.

Emoluments and Justiciability

by Zachary Clopton

The President, without the consent of Congress, accepts an emolument from a foreign state. What next?

The answer is judicial intervention, say recent lawsuits from private citizens, government bodies, and members of Congress.

The merits of their allegations have been—and continue to be—thoroughly ventilated by others. This post addresses two issues related to whether these cases are appropriately handled by the federal courts at all, i.e., justiciability.

Saturday, June 24, 2017

Members of Congress Have Standing in the Emoluments Suit

By Eric Segall

The President of the United States owns a posh hotel in the shadow of the White House from which he derives foreign-government revenue. Along with income and benefits from many other domestic and international businesses, this revenue stream creates the very conflict of interest that the founding fathers wanted to prevent by writing into the Constitution that “no Person holding any Office of Profit or Trust … shall, without the Consent of the Congress, accept … any Emolument … from any King, Prince, or foreign State.”

Members of both the House and the Senate have filed a lawsuit seeking to enforce this provision. These legislators allege that the President has violated their right, guaranteed in the text of the Constitution, to vote on and authorize the President’s acceptance of “emoluments.” They ask that the court require the President to obtain Congress’ consent before accepting benefits from foreign governments or divest himself of all interests in those businesses. Before the court may rule on this case, however, the plaintiffs must demonstrate that they have standing to sue. As a matter of text, precedent, and policy, these plaintiffs should have standing in this case.