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.

Wednesday, October 18, 2017

The role of “moderate” Republicans in the Trump end-game

by William Hausdorff

I started writing for this blog 15 months ago, in July of 2016, when it became evident that Trump was about to capture the Republican nomination for President.  In the first column, I conveyed my bewilderment that “decent individuals” of the Republican establishment were playing along with Trump.  I noted the creepy parallel with how the conservative German political establishment played along with Hitler in the early 1930s.

Even before Trump was inaugurated the questions continued--would the Republican Senate majority blithely approve all of his cabinet nominations, no matter how crazy, nasty, or unqualified?

Only one Trump cabinet nominee failed to be confirmed.  Most strikingly, even though the National Security Advisor position is not subject to Senate confirmation, the certifiable whack-job Michael Flynn was named to the post with nary a Senate peep despite his and his son/advisor’s tweets on all manner of sick, bizarre conspiracy theories.

Since then, the deranged toddler-president, a serial liar, openly corrupt in so many ways, bitterly obsessed with his predecessor and his opponent in the last election, continues to be loathed by more than half of the population.  Lashing out uncontrollably on all topics and individuals trivial and powerful, especially women, black athletes, and Hispanics, he flagrantly and personally taunts the nuclear-armed North Korean dictator, and declares his scorn for the victims of catastrophic hurricanes and flooding in Puerto Rico by hinting at viciously cutting off vital humanitarian relief. 

Meanwhile, by unilaterally withdrawing from international agreements, the US government is systematically alienating its closest allies in Europe, as well as the other superpowers badly needed to help control North Korea and the still volatile Syrian situation.

This is not just bad for the US, it’s bad for business and bad for the Party in power.  For these reasons, I believe this is not sustainable.  The federal government cannot continue to function like this, even in the medium term.  I believe that the Party in power recognizes that.

Tuesday, October 17, 2017

Originalism and Textualism in Action: Not Constraining and Not Neutral

by Joseph Kimble

In an August 25, 2017 blog post, Michael Dorf asked, “How Determinate Is Originalism in Practice?” His conclusion from the evidence: not very.

There followed a series of exchanges between Prof. Dorf and Prof. Lawrence Solum about sample size, alternative reasons for originalists’ ideologically conservative results (such as the need to sometimes compromise with the nonoriginalist justices), the reluctance of progressives to make originalist arguments, and other counters to Prof. Dorf’s conclusion. In the end, I thought his conclusion stood up: while you might expect originalism to lead to moderately conservative results, the decisions of Justices Scalia and Thomas are anything but. Even without data, it’s “blindingly obvious” (as Prof. Dorf puts it) that their decisions are overwhelmingly conservative. Originalism does not constrain.

And neither does its companion, textualism. Here the empirical evidence is compelling, if not incontrovertible.

Monday, October 16, 2017

The Care and Feeding of a Poltiically Useful Non-Scandal

by Neil H. Buchanan

How does a false story become the basis of a political hit job, serving an ideological agenda while refusing to go away, no matter how many times it is debunked?  Why do some tall tales of political perfidy last far beyond their expiration dates?

At this point, anyone familiar with the U.S. political conversation cannot possibly know which of several "genuinely fake" scandals I might have in my sights.  The claim that climate change is a conspiracy among scientists?  Benghazi?  Vaccines?  The Clinton emails?  There is an extensive menu of false-but-persistent stories from which to choose.

As it happens, I am returning once again to the non-scandal that has enveloped the Internal Revenue Service for more than four years.  The Republican Party has been obsessed with the completely fantasy-based claim that the Obama Administration directed the IRS to "target" right-wing political groups that had applied for tax-exempt status.

I recently wrote a column in which I described a new report that should finally "remove the head or destroy the brain" of this zombie.  Should have, but won't.  Today, I am here to explain why nothing will stop Republicans from acting as if there really was a scandal all along.

Friday, October 13, 2017

What Does a Faux-Nobel Prize Tell Us About Economic Policy?

by Neil H. Buchanan

"You can't beat something with nothing."  That adage is usually trotted out when someone wants to say that a purely negative argument is not enough to win, that is, that "merely" showing that someone else is wrong is somehow never sufficient to win a debate.

As such, the saying ought to be the opposite of a truism.  If someone makes a bad argument, the only thing necessary to beat that argument should be a clear refutation.  "I am a great deal maker," says a man.  "No, you make bad deals," you respond.  "Oh yeah?  Show me someone who makes better deals!"

As illogical as that is, it is surprisingly common for people to continue to accept bad claims until someone proves an alternative claim.  Criminal lawyers will tell you that sowing reasonable doubt in a jury's mind is almost never enough, because jurors want "a better story."  If the defendant is not the murderer, then who is?

One would hope that such mindlessness would not infect arguments among academic experts, but it does.  In particular, the field of economics has been dominated for decades by people who proffer a bad theory but who have thrived by saying, "Oh yeah, you say our theory's bad?  Where's yours?"

It is no small matter that that dominant theory is rigged to generate right-leaning policy prescriptions.  Combined with serious financial backing from conservative sugar daddies, the field of economics has been built upon a default theory that purports to prove Ronald Reagan's assertion that government is always the problem and never the solution.

There have, of course, been plenty of economists with orthodox training who have argued in favor or both micro- and macroeconomic theories that lead to centrist and liberal policies.  But it has always been true that such theories and policies are viewed with suspicion and must be ten times as strong to receive even one-tenth of the credibility that standard right-wing dogma receives by default.

Thankfully, economists have in recent years started to relent, and the world is becoming better for it.  The orthodoxy is at last starting to crack.  The interesting question is whether the orthodox theory is dying because of its own inherent weakness or because something came to replace it.  Did nothing beat something, or did something beat something?

Thursday, October 12, 2017

Irrationality, Baselines, and Government "Intervention"

by Michael Dorf

Shortly after the news of the Las Vegas mass shooting broke last week, business reporters noted that, as is typical after mass shootings, the share price of companies that manufacture firearms went up. Why? Because in the wake of such events, gun sales spike. Why? Because people who are thinking of buying a gun think they better do so quickly, before the government makes gun purchases illegal. Savvy investors know this will likely happen, so they bid up the share price of the gun manufacturers in anticipation of the increased demand, increased sales, and thus better short-term profits.

But this only makes sense if the investors also anticipate that serious gun control will not actually be enacted. After all, if a mass shooting were to lead to the enactment of serious gun control, then the short-term spike in sales and thus profits would be more than wiped out by the long-term decline in business for the gun manufacturers. And it must also be true that the potential gun purchasers do not realize that gun control won’t actually be enacted; if they did, they wouldn't feel the need to stock up now. Indeed, we must assume even more—namely that some of the people buying guns in the wake of a mass shooting are not merely buying early but buying guns they otherwise wouldn’t have bought at all. After all, if gun purchases are merely shifted from (say) 2018 Q2 to 2017 Q4, that should have a small impact on share price, which, in a perfectly rational market, aggregates the value of the firm out to infinity. If all that were happening was the shifting in the timing of purchases, there should be only a modest benefit to the firm from earlier sales (because of the time value of money), probably not enough to justify the price spike we see following mass shootings.

And the market eventually figures this out. Thus, if you look at the performance of firearms stocks, you see that the gains they make in the immediate aftermath of a mass shooting are usually given up by about a week thereafter. For example, at the beginning of this week, American Outdoor Brands (the parent of, among other brands, Smith & Wesson) was trading for slightly less than it was before the Las Vegas tragedy, after having gone up then down. Storm Ruger stocks followed the same trajectory. Perhaps this means that the market figured out that this time there will be serious gun control, but that seems extremely unlikely, given the talk about, at most, banning bump stocks. Rather, it looks like Wall Street investors who bid up share prices of firearms stocks in the wake of mass shootings are not perfectly rational actors. If they were, they would anticipate the eventual fall of the stocks and so not buy. Indeed, if even a substantial minority of investors appreciated the pattern, they would also appreciate the arbitrage opportunity and bet against the firearms stocks for the medium-term aftermath of a mass shooting, which should eliminate the effect altogether. So these predictable gains-then-losses following mass shootings provide further evidence that the efficient capital markets hypothesis is not perfectly accurate. It appears that collectively, investors buying firearms stocks in the wake of mass shootings are victims of the availability heuristic: they overweight recent salient events in making their decisions.

Wednesday, October 11, 2017

The Automobile Exception and the Private Driveway

By Sherry Colb

In my Verdict column for this week, I examine the case of Collins v. Virginia, on which the U.S. Supreme Court recently granted review. According to the Court, the question presented by the case is the following: "Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house." As I discuss in my column, however, the facts of the case do not really present this question at all, in part because the vehicle in question (a motorcycle) was not searched and probably cannot be searched unless it is taken apart, and in part because the vehicle was covered by a tarpaulin, the removal of which constituted a search that does not neatly fit within the automobile exception at all. Here I want to consider whether there really ought to be an automobile exception.

Tuesday, October 10, 2017

Twenty Weeks

by Michael Dorf

This evening, Prof. Colb and I will be two of the four featured speakers on an inter-disciplinary panel titled Animals, Fetuses, and Morality at the University of Colorado. (With the cooperation of the technology, Prof. Colb and I will be participating virtually, because our flights were repeatedly delayed, canceled, rebooked, delayed, and canceled until there were no seats available to deliver us on time, so we're still in Ithaca.) We are very grateful to the sponsoring organizations--the Center for Western Civilization, Thought and Policy, along with The Center for Values and Social Policy--as well as to Prof. David Boonin of the UC Philosophy Department, who organized and will moderate the panel. We're also grateful to the other panelists, Theology Prof. John Berkman and Theology Prof. Charles Camosy, for agreeing to a topic that enables Prof. Colb and me to shamelessly promote our book on more or less the same subject. We look forward to a spirited discussion. I intend to organize my remarks around the bill passed by the House last week that would ban most abortions after twenty weeks of probable gestation--HR 36, the Pain-Capable Unborn Child Protection Act.

Monday, October 09, 2017

Who Cares That There Was Never a Scandal At the IRS? We All Should

by Neil H. Buchanan

Do you remember "the IRS scandal"?  If you do, you remember a lie.  Granted, it was an elaborate, innuendo-driven lie that many people repeated endlessly, trying to get you to believe that there was a scandal.  But it was still a lie, and a damaging one at that.

The reason to revisit this issue now is that the Treasury Inspector General for Tax Administration (TIGTA) issued a report last week that showed that the supposedly scandalous behavior never happened.  In other words, the central lie behind this non-scandal has been definitively undermined.

This is, or at least ought to be, big news.  Former President Obama and his supporters should view this as an opportunity to take a victory lap.  After more than four years of Republicans' efforts to try to backfill their absurd claims of a big political scandal, the entire story has (again) collapsed.

It is not just big news, but it is also wonderful news.  Anyone who cares even a whit about the rule of law should be delighted to know that the supposed abuse of government power that Republicans have been screaming about since May 2013 simply never happened.  Unsurprisingly, that is not how Republicans are reacting.

Friday, October 06, 2017

The Second Amendment Is Not a Relevant Part of This Story

by Neil H. Buchanan

Police are still investigating the Las Vegas massacre, with the death toll at 59 and hundreds of innocent victims now recovering from their bullet wounds and beginning to deal with psychological trauma that will surely last for decades.

The Republicans' response has been all too typical, using their "not now" mantra to try to shut down debate until the next, even more horrific disaster.

A tragedy this extreme has also brought forth a great deal of intelligent commentary, with a range of writers and many Democrats asking plaintively if we have finally reached the point where we might do something -- anything -- to try to prevent future mass murders.

One fundamental problem that long predates the carnage in Las Vegas is that the people who oppose the mindless extremism of the Republican Party and the National Rifle Association have meekly allowed the discussion to be about "gun rights," cowering in fear of a mythical version of the United States Constitution.

This must stop.  The simple fact is that the barrier to better regulation of guns is political timidity, not the Constitution.  Acting as if the Second Amendment needs somehow to be overcome -- including silly suggestions that we cannot do anything until we repeal that amendment -- is not just politically damaging but legally baseless.

Thursday, October 05, 2017

The Travel Ban and the Ontology of the Compelling Interest Test

by Michael Dorf

In my Verdict column for this week, I discusse how the Trump administration's release of Travel Ban 3.0 should affect the pending SCOTUS challenge to Travel Ban 2.0. I mostly steer clear of the mootness questions on which briefs will be filed today. I assume that even if the Court holds the current litigation moot, the validity of Ban 3.0 will be litigated in the lower courts almost immediately. My column discusses both statutory and constitutional objections to Ban 3.0, but here I will focus on the latter.

As I note in the column, the substitution of one mostly-Muslim country (Chad) for another (Sudan), the addition of some Venezuelan government officials, and the addition of a country that sends virtually none of its nationals to the US (North Korea) does not diminish the strength of the plaintiffs' prima facie case of discrimination: (1) The policy has a pronounced disparate impact on Muslims; and (2) that disparate impact is intentional, in the sense that, but for Trump's clearly displayed anti-Muslim animus, Ban 3.0 would not exist.

Therefore, the proper legal question (assuming courts get over any justiciability hurdles and arguments that ordinary constitutional principles have no bearing in the immigration context) is whether the intentionally discriminatory policy survives strict scrutiny, i.e., whether it is narrowly tailored to a compelling interest. Here I want to ask whether it makes sense to apply strict scrutiny--rather than a rule of per se invalidation--to laws and policies (such as the Travel Ban) that are motivated by animus.

Wednesday, October 04, 2017

Justice Scalia and the Myth of the Originalist Judge

By Eric Segall

At midnight last night, Amazon began selling the Kindle version of a new book containing many of Justice Scalia's speeches. The late Justice was an excellent public speaker, and it speaks well of him that he was so willing to shares his views with the public. There can be no debate that he was a dedicated public servant who devoted his career to trying to improve our country. But, and his passing more than a year behind us should not stop us from recognizing this truth, he was not in any measure an originalist judge.

Tuesday, October 03, 2017

Leave the Tax System Alone

by Neil H. Buchanan

The death of the Republicans' latest effort to take health care away from tens of millions of Americans is already a fading memory.  Sadly, we can be sure that that zombie will rise again.  The Senate's rules that supposedly constrained the Republicans in their efforts can, after all, be changed -- by the Republicans.  We can, therefore, count on a fourth, a fifth, and ultimately as many go-rounds as possible, so that Republicans can continue to pander to their base and donors.

Although it is crucial to defeat Republicans' serial efforts to destroy the American health care system, the problem is that the system really does need help -- not a lot of help, but just enough effort to stabilize the insurance markets and keep the system functioning in its less-than-perfect way, keeping more people alive than the Republicans' alternatives would allow.

This means that real human beings will suffer if Congress does nothing about health care.  Fewer will suffer than if Congress does the wrong thing, but affirmative effort needs to be expended to prevent a medium-sized catastrophe.  Based on everything we have seen thus far, unfortunately, Donald Trump and the Republican leaders in Congress will aggressively fight such an effort.

Taxes are different.  True, just as they did with health care, the Republicans are once again embarrassing themselves, running around with a terrible set of ideas that they do no even understand, trying to tell everyone that Trump's obviously false promises will somehow become reality and that they know how to make everyone better off.

Who cares that their non-plan omits most of the essential details?  That vagueness merely allows Trump's shills to have it both ways, scolding critics for jumping to conclusions based on incomplete information while simultaneously claiming that the yet-to-be-specified changes to the tax system will not be regressive.

The U.S. tax system is currently far from perfect, but a fair assessment of it is that it is good enough.  Just like the health care system, Trump and the Republicans would love to make it much worse, and they will fight efforts to make it better.  The difference is that, as far as the tax system goes, we will be just fine if nothing at all is changed.

Monday, October 02, 2017

What NBA Commissioner Adam Silver Doesn't Get About National Anthem Protests

by Michael Dorf

With preseason basketball now underway and the regular season set to begin in just over two weeks, the NBA may soon have to decide what to do if any players take a knee or register some other protest during the pre-game playing of the national anthem. Last week, NBA Commissioner Adam Silver noted that NBA rules require players, coaches, and trainers to "stand and line up in a dignified posture" during the playing of the national anthem. Silver has declined to say what discipline, if any, will be imposed on players (or coaches or trainers) who break the rule. But his explanation of his expectation that they will comply betrays a basic misunderstanding of principles of free speech.

Friday, September 29, 2017

Protecting Free Speech and Free Press From Motivated Malignancy

by Michael C. Dorf

[N.B. The following essay also appears on Take Care, where it is part of a symposium on defending the First Amendment against President Trump.]

In their respective contributions to this symposium, other scholars have wrestled with the question of how to distinguish between, on one hand, threats and actions taken by President Trump that implicate the First Amendment rights of private actors such as journalists and athletes, and, on the other hand, speech by Trump that does not have such implications, either because it falls within the “government speech” doctrine or because it emanates from Trump in a personal capacity. Although there are numerous borderline cases, the core cases—those that pose the clearest threat to free speech and freedom of the press—involve abuse of official power. To use an example posed in the opening essay by Anne Tindall and Ben Berwick, an IRS audit of Amazon or Jeff Bezos that is undertaken in retaliation for unfavorable coverage of the Trump administration in The Washington Post would violate the First Amendment, even though the IRS has the authority to audit Amazon and Bezos and even if the audit ultimately uncovered evidence of unpaid liability or even criminal wrongdoing.

Thursday, September 28, 2017

The Next Tax Bill Will Be Called Tremendous and Huge, Even If It Is Terrible and Small-Minded

by Neil H. Buchanan

"Trump Proposes the Most Sweeping Tax Overhaul in Decades," screams The New York Times.  Except he didn't.  Once again, Donald Trump has proved his lack of seriousness by promising a big tax plan and then delivering nothing more than a few talking points.

This has been Trump's pattern all along on taxes, from his campaign's multiple non-plans that did little more than express a desire to feed the rich to his advisors' release of a not-completely-filled page of bullet points this past spring.  Now, they have released a few more pages to distract the gullible political reporters who barely understand anything about taxes.  And it seems to be working.

As I pointed out in a recent column, there is a strangely non-adversarial relationship between the mainstream press and the Trump/Republican tax cutters.  Even though The Times and The Washington Post have reporters breaking story after story about hugely important matters like the Russia investigation and other impeachment-related inquiries, the two top papers in the country continue to be all but in the bag for Republicans on taxes.

That is not to say that the reporting takes a friendly tone.  There is plenty of discussion of the regressivity of the Republicans' tax dreams, but there is also far too much uncritical acceptance of the spin on taxes coming from Trump and his comrades.

Wednesday, September 27, 2017

Whodunit, and What Was Done in Rape Cases

by Sherry F. Colb

Years ago, I wrote an article entitled "'Whodunit' Versus 'What Was Done': When To Admit Character Evidence in Criminal Cases,"  published in the North Carolina Law Review.  In it, I discussed two types of cases that present themselves in criminal court. One is the "whodunit" case, in which everyone agrees that a crime was committed, but the prosecution and defense disagree about who committed that crime. The prosecution says that the defendant is the perpetrator and the defendant says that someone else, named or unnamed, is the real perpetrator. The other kind of case is the "what was done" case, in which the prosecution and defense agree about who the relevant players are (unlike in the whodunit case) but disagree over what happened. Here the prosecutor claims that the defendant did something criminal and the defense claims that it was the alleged victim (or perhaps no one at all) who did something criminal. In my article, I proposed, among other things, that propensity evidence (that is, evidence that a person has a particular character trait and therefore acted in a manner consistent with that trait) ought to be inadmissible in whodunit cases but admissible in what was done cases.

In this post, I want to use the "whodunit" and "what was done" framework to talk about the announcement by Betsy DeVos, Donald Trump's Secretary of Education, that the Department of Education would be rescinding the Obama rules (contained in a "Dear Colleague" letter), a rescission that formally took place on Friday. My column for this week discusses and defends two of the items that are found in either the Dear Colleague letter itself or in policies that some states have adopted for their campuses in response to the letter: the preponderance standard and the affirmative consent requirement. Here I want to explore the cost to the victim of sexual assault when she (or he, but I will use "she" because women are the much more frequent victims of sexual assault on campus) is not believed by the authorities to whom she goes for help.

Tuesday, September 26, 2017

Trump's White Supremacist DNA On Display Again

by Neil H. Buchanan

Who could have predicted that an unhinged attack on professional athletes would be Donald Trump's final unmasking as a full-on racist?  After everything that he has done and said -- not merely since he announced his candidacy in 2015 but throughout his life -- Trump finally found a way to remove the last shreds of doubt about his bigotry.

This is a good occasion to revisit a point that I made during last year's election campaign, which is that Trump's supposed devotion to America and our values becomes inoperative when he has a chance to be a white supremacist.  When he has a choice, Trump goes with the racist approach, not the American one.

Monday, September 25, 2017

Faith, Wedding Cakes, and the Rule of Law

By Eric Segall

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

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

by Michael Dorf
(cross-posted on Take Care)

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

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

Saturday, September 23, 2017

Graham-Cassidy and the Spending Clause

by Michael Dorf

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

Friday, September 22, 2017

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

By Neil H. Buchanan

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

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

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

Thursday, September 21, 2017

Socialism or Federalism? More Like Bribery and Revenge

by Michael Dorf

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

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

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

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

Wednesday, September 20, 2017

Unconscientious Objection

by Michael Dorf

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

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

Tuesday, September 19, 2017

NeverTrump Conservatives In a Futile Search For Relevance

by Neil H. Buchanan

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

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

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

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

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

Monday, September 18, 2017

Wedding Cakes, Urinals, and Other Art

by Michael Dorf

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

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

Sunday, September 17, 2017

Why the Court Can't Decide Masterpiece Bakery

By Eric Segall


If you are reading this Blog, you probably know that this Fall the Supreme Court will hear a case brought by Tom Phillipsco-owner of Masterpiece Bakeshop, who refused to bake a cake for a same-sex wedding. Colorado law prohibits businesses from refusing to cater to customers because of their sexual orientation. Phillips argues that both the free speech and free exercise clauses of the First Amendment prohibit Colorado from punishing him for his refusal. Last week, I wrote a piece for SCOTUSBlog arguing that his free exercise claims should be dismissed but conceding that his free speech claims are truly difficult. It turns out, however, that those speech claims cannot be satisfactorily resolved on the present record, and therefore the Court should not resolve Phillips' speech claims.

Friday, September 15, 2017

Who's Your Daddy? Genetic Citizenship, Presumptive Paternity, and the Dvash-Banks Twins

by Diane Klein

In our increasingly digital, interconnected world, lines on maps seem in some ways more artificial than ever.  Advances in both transportation and communication technologies mean that where a person is physically located matters perhaps less than it ever has.  Advances in reproductive technology and in the recognition of a wider variety of families mean that traditional notions of parenthood and "blood relation" may also matter less than ever.  But exactly where on planet Earth one happened to make one's entrance, along with the citizenship of one's parents (whatever their gender or sexual orientation), still matters - and maybe almost as much as it ever has.

The case of the Dvash-Banks twins - one a U.S. citizen, one not - is illustrative.  No, the birth mother did not give birth to one twin, run across the border, and give birth to the other.  Their seemingly-impossible-but-all-too-real situation is this: Their parents, Andrew and Elad Devash-Banks, are a same-sex married couple.  Andrew is a U.S. citizen; Elad is an Israeli with lawful permanent resident status in the U.S.  The couple were married in Canada in 2011, and were living there when they hired the services of a Canadian egg donor and gestational surrogate (sometimes called a "surrogate mother").  She conceived and carried to term two boys: one whose genetic father is Andrew; one whose genetic father is Elad.  Both men's names appear on both babies' birth certificates. The couple and the two boys (who appear to be about 10 months old) have moved back to California, Andrew's birthplace.

If you follow immigration law at all, you can guess the rest.

Thursday, September 14, 2017

The DREAM Act Should Apply Prospectively As Well As Retrospectively

by Michael Dorf

With the emergence in the last week of Bipartisan Trump, we face the prospect of congressional implementation of a statute that replaces DACA (Deferred Action for Childhood Arrivals) sooner rather than later. Despite some ambivalent tweeting, it now appears as though Trump has agreed in principle with Chuck Schumer and Nancy Pelosi to enshrine DACA in legislation that also includes additional border security measures (but not border wall funding). Between Democrats and pro-business (and thus pro-immigration) "establishment" Republicans, there is likely majority support in Congress for such a measure.

It remains, possible, however, that nothing will pass. After all, during the Obama presidency there also was majority support in Congress for some sort of moderate compromise on immigration that included protection for the Dreamers, but it was not passed then. Why not? Partly the answer is that even establishment Republicans who, if they had their policy druthers, would support immigration reform, were reluctant to do anything that could be seen as giving Obama a "victory." But that was not the only obstacle. Republican Senators and House members were also afraid of crossing the GOP base. Nothing fuels Republican primary challenges from the right quite like anti-immigration fervor, with the David Brat victory over Eric Cantor serving as Exhibit A.

How this will all play out now that Trump has gone soft on the Dreamers is anybody's guess. From talk radio to the halls of Congress, the leadership of the far right is freaking out about Trump's appearing to go soft on immigration. As the Bard of Sioux City (as Steve King is justifiably not called by anybody) tweeted: "@RealDonaldTrump If AP is correct, Trump base is blown up, destroyed, irreparable, and disillusioned beyond repair. No promise is credible."

But much of Trump's support is tribal and primal rather than policy-driven. If his base remains loyal, then Trump could sign a congressional DACA replacement, which in turn could lead enough House and Senate Republicans to join with Democrats in voting for it, on the premise that Trump's support gives them cover against an anti-immigration-fueled primary challenge. As the president likes to say, "we'll see."

Campus Rape as Explanation for Trump's Election: A New Low

by Neil H. Buchanan

In the era of Trump, there is no shortage of surprises in the news, and those surprises are almost always unpleasant.  When the news concerns Secretary of Education Betsy DeVos, all one can do is dive into the story with teeth clenched and wonder what new thing she has done or said that will set back America by another few decades.

It was a real surprise last week, therefore, when DeVos made an announcement that was not so facially outrageous that one wondered how fifty U.S. Senators (assisted by Vice President Pence, of course) had swallowed hard enough to put her in a position with real power.

This is not to say that DeVos had done something that pleased everyone -- and I am certainly not predicting that what she is going to do will be anything but awful.  She had, after all, announced plans to, ahem, revisit Obama-era guidance on how American colleges and universities should handle accusations of rape.

Campus rape is obviously an important and difficult subject, one that the Trump Administration is uniquely unfit to address.  Even if it is obvious where DeVos is going with this, however, some reasonable people were willing to give her credit for announcing a deliberative approach.

What is especially of interest to me is that DeVos's announcement about campus rape is being used by so-called thoughtful conservatives as yet another pretext to attack liberalism -- indeed, modernism -- in general.

These conservatives used DeVos's announcement as an opening to blame liberals for everything under the sun.  Especially when we start talking about sex, especially sexual violence, conservatives show their true colors.

Wednesday, September 13, 2017

How Far Should Undercover Police Be Able to Go to Catch Criminals?

by Sherry F. Colb

In my column for this week, I examine the practice of undercover police officers, sanctioned by at least three states, having sexual contact with suspected prostitutes. The alleged purpose of this sexual contact is to help catch the suspected prostitute agreeing to exchange sex for money. The theory behind the allowance is that if sex workers know that police are prohibited from having any sexual contact with suspects, then sex workers will ask police to touch them sexually before agreeing to exchange sex for money. If a prospective customer refuses to touch them, then they will know they are dealing with a cop and will refrain from any further commercial activity. In the column, I consider three perspectives, that of a feminist/anti-trafficking advocate, that of a libertarian, and that of a moralist, and discuss, for each one, how the allowance for sexual contact between police and suspected prostitutes would fare.

In this post, I want to consider the more general question of what undercover police officers should be able to do in their efforts to persuade their suspects that they, the officers, are actually fellow criminals in whom the suspects can place their trust. The ideal for undercover police officers is that they simply provide an opportunity for a suspect to commit his crime and that they (the police) do not do anything that is uniquely tempting or that pressures the suspect to do something that he would not otherwise do. Such excessive temptation or pressure, if great enough, could later be deemed entrapment by a court, a finding that would serve as a defense for the suspect in a criminal case.

Tuesday, September 12, 2017

DACA Lawsuit Part 2: The Baseline Problem in Disparate Impact Cases

by Michael Dorf

In my post last Friday, I discussed one of the claims raised in the lawsuit against the Trump administration brought by state Attorneys General to challenge the rescission of DACA--that it violates equal protection because it is motivated by racial animus. I noted that the challenge to DACA is structurally similar to the challenge to the travel ban but stronger in one way and weaker in two ways. It's (1) stronger because the claimants are in the U.S. already but (2)weaker in that discrimination on the basis of nationality is not, strictly speaking, the same thing as discrimination on the basis of national origin, and, (3) by contrast with the Travel Ban, which has an obvious and obviously intended disparate impact on Muslims, the DACA rescission applies to all undocumented immigrants, regardless of their country of origin.

During the panel discussion on immigration and executive action (video available here), Ilya Somin pointed to another difference that makes the DACA challenge weaker than the Travel Ban challenge: Whereas there is a straight line from Trump's "total and complete shutdown of Muslims entering the United States" to the Travel Ban, the path from Trump's anti-Mexican statements to DACA rescission is less clear; thus, attributing DACA rescission to unconstitutional bias is not as easy as attributing the Travel Ban to unconstitutional bias. As I noted during the discussion, I agree with Prof. Somin's assessment. I don't think that's fatal to the case against DACA rescission, however (and perhaps neither does he). Where there is a prima facie case of illicit motive, the burden shifts to the government to prove that the action (here DACA rescission) would have occurred even absent the illicit motive. Perhaps the government will be unable to make that case persuasively.

Meanwhile, a commenter on my prior post made more or less the same point as Prof. Somin. The commenter also called into question my analysis of Palmer v Thompson, the case in which the SCOTUS held that a Mississippi municipality's decision to close its public swimming pools rather than desegregate them was not racially discriminatory because doing so affected everyone equally. I wrote in the post that in light of the more recent disparate impact cases, if there had been proof of a disparate impact on African Americans in Palmer, the plaintiffs would have won. The commenter was dubious. Wasn't it obvious, he asked, that the closing of the public pools would have a disparate impact on African Americans? And if so, doesn't that mean that the subsequent disparate impact cases implicitly overrule Palmer (or that Palmer is wrong)? Good questions. I'll see if I can make any headway on them.

Monday, September 11, 2017

Heroes or Fools? Democrats and the Debt Ceiling

by Neil H. Buchanan

The big political story last week was that Donald Trump had sided with Democratic leaders Nancy Pelosi and Chuck Schumer in negotiations over the debt ceiling and the timing of the 2018 federal budget.  Predictably, political journalists were soon inundating the internet with thumb-sucking analyses, trying to guess what it all means.

Is Trump going rogue?  Is the rich kid from Queens returning to his outer-borough routes by joining up with Brooklyn's Schumer?  Has Trump soured so badly on Republican congressional leaders that he will now return to his days as something of a Democrat?  What explains the "swerve"?  Inquiring minds want to know.

The answer to all of those questions is, of course, that no one has any idea what is going on.  This is Donald Trump that we are talking about, after all.

What does still matter is the substance of the agreement that Trump blessed and, more importantly, whether subsequent reports are true that Trump and Schumer have agreed to repeal the debt ceiling in December.

If so, that would truly be a historic event, removing one of the most pointless, yet malicious, laws on the books once and for all.  It would be good for Trump, good for Congress, good for the country, and good for the world.  Which makes it all the more amazing that the debt ceiling has not already been ditched.

But it also raises the question of what Schumer and the Democrats are currently thinking.  The debt ceiling is a terrible law, but its terribleness only became obvious after Republicans in 2011 discovered that it could be used as a tool of obstruction.  It is, moreover, an incredibly dangerous tool of obstruction, which makes it all the more potent in hostage negotiations.

Given how little power Democrats actually hold right now, then, it is more than a bit surprising that they would be willing to give up the one powerful tool that they possess.

Is Schumer doing this because he is naive?  No, he in fact clearly knows how potent the debt ceiling is.  As strange as it is to say, it appears that Schumer might actually be doing the right thing for the right reasons.  That would be a story!

Friday, September 08, 2017

Similarities and Differences Between the DACA Lawsuit and the Travel Ban Litigation

by Michael Dorf

**Updated: Video available here**

At noon today I'll be speaking on a panel at Cornell Law School on Immigration and Executive Power. My fellow panelists are U Chicago Prof Eric Posner and George Mason Prof Ilya Somin, with my colleague Steve Yale-Loehr serving as moderator. The panel was planned months ago. During our planning conversations, the four of us envisioned it focusing chiefly on President Trump's Travel Ban, with other immigration issues serving as context for a broader discussion about executive power. Then came the announcement earlier this week that the administration will cancel DACA in six months (unless President Trump "revisits" the issue following congressional failure to act). Given the timeliness of the DACA issue, it will also feature prominently in our discussion today.

I intend to raise the lawsuit filed on Wednesday by the attorneys general of fifteen states and the District of Columbia, which alleges that the president's termination of DACA is unlawful. The lawsuit contends that terminating DACA violates: equal protection (because it intentionally discriminates against Mexicans); due process (by breaking a promise to DACA recipients that their information would not be used against them); the Administrative Procedure Act (as arbitrary and capricious); the Administrative Procedure Act again (for failure to utilize notice-and-comment rulemaking); and the Regulatory Flexibility Act (for failure to undertake required pre-adoption analyses). Here I'll offer a thought on the equal protection claim.

Thursday, September 07, 2017

Republicans Are Going to War With Each Other Over ... Something

by Neil H. Buchanan

Is the unsustainable Republican coalition -- big business interests, xenophobes, racists, misogynists, religious fundamentalists, anti-government absolutists, libertarians, militarists, isolationists, and debt-obsessed ignoramuses -- finally cracking apart?  If so, this week might eventually be viewed as the breaking point.

Even before this week, it was clear that the Republicans were in a love-hate relationship with Donald Trump, who highlights so many of their party's contradictions.  I therefore wrote a column yesterday (published today) in which I revisited a fantasy scenario that I had floated last year in which Republicans en masse had repudiated Trump after he secured their presidential nomination.

My basic argument was that Republicans could have "owned" Hillary Clinton if they had seemed to take the high road by helping her defeat a patently dangerous and unqualified nominee who was not really a Republican in the first place.  Republicans hate Clinton, but maybe their best revenge would have been to make her the most miserable and weak president ever.

As I was editing that column, news broke that Trump had infuriated Republicans yet again, this time by siding with the Democratic leaders of the House and Senate in negotiations over the budget and the debt ceiling.  I quickly added a reference and a link to that story, further strengthening my assertion that Republicans must truly be hating their life choices right now.

What is odd about this latest development, however, is that it is not at all clear why the Republicans are so upset.  Or, perhaps more accurately, the Republicans all seem to be angry, but for different reasons that are all mostly incoherent and are, in any event, mutually inconsistent.  What is going on?

Wednesday, September 06, 2017

How to Avoid Groundhog Day

By William Hausdorff

I’m tired of Groundhog Day.  Not the show on Broadway, which I haven’t seen.  And not the Bill Murray movie some years back, which I enjoyed.  I mean political Groundhog Day, now playing in the Middle East, in the southern U.S., and in Britain.


A Constitutional Right to Privacy Should Not Include (Positive as Opposed to Negative) "Food Preferences"

by Michael Dorf

In my latest Verdict column, I discuss the recent landmark ruling of the Supreme Court of India finding an implicit right to privacy in the Constitution of the world's largest democracy. My column is mostly laudatory. I also take the opportunity to discuss the virtues of comparative law. The Privacy Case judgment canvasses constitutional privacy jurisprudence in the UK, US, South Africa, Canada, and the EU. I suggest that we, in turn, could learn from sister legal systems.

In this essay, I want to address an issue that arises in passing in the Privacy Case: what is sometimes called "food freedom," i.e., the right to decide for oneself what to eat. The judgment does not discuss the issue at any length, but it does--unfortunately in my view--suggest that food freedom may be on the agenda for future cases. In a paragraph that mentions a variety of prior cases involving privacy issues, the court includes "food preferences and animal slaughter (Hinsa Virodhak Sangh)." The case cited is a 2008 judgment of a two-justice panel of the Indian Supreme Court rejecting a challenge to Ahmedabad ordinances closing municipal slaughterhouses during the eight-day Jain festival of Paryushan. As the panel saw it, that case involved the "right to carry on an occupation, trade or business" and the right to religious freedom or what we might call religious establishment in the US.

Properly understood, the Sangh case did not involve a right to food preference or food freedom. To the extent that the Indian Supreme Court has now implied that such a right may be protected in India under the rubric of a right to privacy, that implication should be rejected in future cases.

Tuesday, September 05, 2017

The Arpaio Story Exposes a Deeper Rot in America

by Neil H. Buchanan

Donald Trump's pardon of former Maricopa County (Arizona) Sheriff Joseph Arpaio will almost surely sink into the morass of outrages that somehow seem to cancel each other out, rather than accumulating in the public's mind.  That in itself is an indictment of our political system.

Before that happens, however, we should use this opportunity to take notice of just how corrupt a system of government has to be for someone like Arpaio to have done what he did, for as long as he did it, and with the impunity that he enjoyed.

Even though Trump's pardon was an affront to simple decency, and even though that pardon might well be the next big leap toward Trump's goal of becoming an unchecked dictator,  the deeper issue that the Arpaio story should also force us to confront is the failure of accountability (and basic reasoning) at all levels of government in this country.

The citizens and politicians of Maricopa County, the citizens and politicians of Arizona, local and national Republicans, and ultimately all of us allowed a monster to terrorize innocent people for decades.  What is wrong with us?

Monday, September 04, 2017

Trump's (Apparent) DACA Position Is At Odds With His Travel Ban Brief

by Michael Dorf

It appears that President Trump will likely announce that in six months he will cancel Deferred Action for Childhood Arrivals (DACA), the Obama-era program that enables people who came to the US without proper documentation as children to remain in the country to pursue an education and/or  work. Ending DACA would be cruel and would betray Trump's February assurance that he would "show great heart" to the hundreds of thousands of "Dreamers" who have relied on DACA. It would also display an incoherent approach to executive power, as can be seen by juxtaposing Trump's apparent plan to end DACA with his administration's SCOTUS brief in the Travel Ban litigation.

Friday, September 01, 2017

Harvey, Taxes, and Debt

by Michael Dorf

On Tuesday, President Trump and the First Lady went to Texas to survey the damage caused by Hurricane/Tropical Storm Harvey. Although the Trumps were widely mocked for their dubious attire, and Trump's speech said out loud what a savvier politician would only have thought to himself (namely, that his main concern was for how people will perceive his performance), the Texas visit was, unusually for Trump, almost normal. There is no operational reason for a president to visit the site of a natural disaster, but such visits have come to be the norm, as a means by which the federal government expresses support for the people most directly affected. In an administration characterized by chaos, racism, ignorance, incompetence, and petty cruelty, Trump's brief visit to Texas stands out as relatively ho-hum.

Not so his visit to Missouri the next day to tout his tax "plan." The quotation marks recognize that Trump has not proposed anything with sufficient detail to count as a plan. Nonetheless, we can assume--because Trump just said as much and more importantly, because it is the Republican go-to move--that any tax proposal with a chance of garnering majority support in Congress will cut corporate tax rates and cut individual taxes mostly for the rich and especially for the super-rich, but will be sold as a boon to the middle-class. The Reagan-era phrase "trickle-down economics" has fallen out of fashion, but in the wake of Harvey, it is probably a less embarrassing metaphor (even for a kompromised president) than the adage that "a rising tide lifts all boats."

Thursday, August 31, 2017

Pardons, Impeachment, and Politics

by Neil H. Buchanan

Adding to the list of things that ought to have been unnecessary to write, I recently offered this observation: "The Constitution is not a stupid document written by careless men."  Donald Trump's assaults on our system of government have been so fundamental that even the most crushingly obvious truths need to be revisited.

The point of that particular observation was to respond to people -- even many of Trump's fiercest detractors -- who have been saying that the president's pardon power is absolute and unreviewable.  If those people were right, then the Constitution would be not merely a suicide pact but a self-negating exercise, a piece of paper that created a limited government in name but a dictatorship in fact.

Even in the context of constructing a strong argument against the Arpaio pardon, for example, Professor Martin Redish recently claimed that "on its face the pardon power appears virtually unlimited."  This, fortunately, is wrong on its face -- and although I have never met Professor Redish, the rest of his argument makes me suspect that he would be happy to be wrong in this instance.

The relevant language from the Constitution is this: "The President ... shall have Power to grant Reprieves and Pardons ... ."  The only way that the pardon power would appear to be unlimited "on its face" is if one believes that "shall have power" unambiguously means "shall have complete and unreviewable power."  But it does not say that (nor does it definitively say anything else).

Because the pardon clause does not say that the president's power is unlimited, and because the word pardon is itself not self-defining (Does it include only acts of mercy?), it should very much be within the courts' purview -- as it is in all constitutional questions -- to hear and adjudicate challenges to the president's pardon power, from the Arpaio pardon to possible future pardons of Trump's family members and his other enablers.

Indeed, just as I had hoped, some people have already started to mobilize against Trump's unprecedented power grab.  The Washington Post's Jennifer Rubin, for example, wrote a column yesterday with the sub-headline, "Trump's pardon power may not be so absolute after all."

Wednesday, August 30, 2017

Lost in the Construction Zone

By Eric Segall

Last Friday, Mike posted an essay titled “How Determinate is Originalism in Practice?” He essentially argued that the decisions of Justices Scalia and Thomas suggest that originalism is less determinate than originalists contend because both Justices reached more conservative results than one would expect from a neutral application of the doctrine. Professor Larry Solum, a scholar associated with New Originalism, responded with a four-part series taking issue with many of the points raised in Mike's essay. Mike and I are both critics of originalism, although we do not agree on everything. Thus, this post speaks only for me. It is devoted solely to responding to the second part of Larry's response dealing with what he calls "public meaning and underdetermination." This aspect of Larry's response is important because it implicates the critique of many scholars that New Originalism is just living constitutionalism by another name (speaking of names, because I can't bring myself to call Mike "Dorf" I will refer to Professor Solum as "Larry" for the sake of parity. I hope he doesn't mind).

Why Abortion-Only Insurance Will Turn Off People Who Need It

by Sherry F. Colb

In my column for this week, I discuss the recently passed Texas law prohibiting health insurance companies from offering general policies that also cover abortion. If they wish to cover abortion, they must have a separate policy with separate premiums and requiring a separate signature by the insured. In the column, I consider a potential argument in favor of such a law: perhaps Texas wishes to make it possible for people who disapprove of abortion to avoid feeling complicit in the abortions that their insurance premiums subsidize. The column analyzes the strength of that argument through analogies to different types of complicity-avoiding claims.

In this post, I want to focus on the decision that a woman purchasing health insurance must make about whether to buy the supplemental abortion insurance plan on top of her regular plan. When purchasing ordinary insurance, one need not think about all of the unfortunate health events that might befall a person. One simply signs up for health insurance and knows that he or she is covered in the event of whatever health problems that he or she might prefer not to think about. But a single-event health insurance plan is quite different from that.

Tuesday, August 29, 2017

The President's Pardon Power Is Not Absolute

by Neil H. Buchanan

In what might be his most terrifying move yet (although there is plenty of competition for that dubious distinction), Donald Trump further burnished his racist credentials last week by issuing a presidential pardon to the former Maricopa County (Arizona) sheriff Joe Arpaio.

For those who have only the vaguest sense of how bad Arpaio's 24-year reign of terror was, Harper's provides a sobering list of outrages, including (but sadly not limited to) these offenses against human decency:
"[Arpaio] shot footage of female inmates that could be viewed online; forced hundreds of inmates not yet convicted of any crime to march from one jail to another in pink underwear; oversaw guards who referred to Latino inmates as 'wetbacks' and 'Mexican bitches,' strapped to a chair a paraplegic inmate and then tightened the restraints until his neck broke, and forced a female inmate to give birth in shackles." (italics added)
That is the person whom Trump has deemed a personal friend and an American hero.  Talk about being able to judge someone by the company he keeps!

As bad as the Arpaio pardon was, however, the greater worry among people who care about the rule of law -- honest conservatives every bit as much as liberals and centrists -- is that Trump might have discovered a shortcut to autocracy.

From now on, the worry goes, Trump might simply pardon people whenever it suits his purpose, directly negating the judicial branch and indirectly negating the legislative branch of government.  This might be the biggest leap yet toward a truly imperial presidency (and maybe outright fascism).

I certainly share those concerns, but I am also worried that those who oppose Trump are unilaterally disarming after the first shot has been fired.  Too many people are saying that there is nothing short of impeachment that can be done to stop Trump from turning the pardon power into a weapon of dictatorship.

Fortunately, they are wrong.  The pardon power is not absolute, and impeachment -- as merited as it already is in Trump's case -- is not the only way to respond to Trump's potential abuses of the pardon power.

Monday, August 28, 2017

Hate Speech and Private Disassociation

by Michael Dorf

In my Verdict column and an accompanying blog post last week, I proposed that Congress pass a statute imposing on internet domain registration, hosting, and other companies that provide essential services common carrier obligations, but that the statute ought to allow such companies, if they so choose, not to provide services to purveyors of hate speech, as defined by the statute. In both the column and the blog post, I acknowledged that the constitutionality of such an exception is unclear, given that, as construed by the Supreme Court, the First Amendment protects hate speech. Here I want to consider the question I bracketed last week: Would a common-carrier obligation with such an exception be valid?

I confess that after devoting considerable thought to this question, I find myself torn. Here I'll explain why I find this question difficult, mostly by exploring examples that pull in opposite directions.

Sunday, August 27, 2017

Our National Ache

By Eric Segall

Law Professors all over social media have been trying to figure out if we are in a "constitutional crisis" or heading towards a "constitutional crisis." Of course there is no standard definition of what that means, and therefore, not surprisingly, there is also much disagreement among the experts on what constitutes a "constitutional crisis."  Here is what I know: I am 59 years old, and never in my lifetime has there been such a prolonged national ache-not after Watergate, not after Lewinsky, not even after 9/11.

Saturday, August 26, 2017

The Arpaio Pardon Through the Lens of Trump Exceptionalism

by Michael Dorf
(cross-posted on Take Care)

Donald Trump's pardon of Joe Arpaio has been widely condemned as a threat to the rule of law. For example, Senator John McCain tweeted:








McCain is right. Arpaio was convicted of contempt for intentionally violating a court order forbidding him from detaining people solely on suspicion of having entered the country illegally. Trump's pardon is despicable because, as McCain notes, Arpaio's policy centered on illegal and immoral racial profiling of Latinos. It is a a threat to the rule of law because contempt is the means by which courts enforce their orders. The use of the pardon power to undo contempt convictions poses a threat to the independence of the judiciary and thus, as McCain says, the rule of law.

Friday, August 25, 2017

How Determinate is Originalism in Practice?

by Michael Dorf

When originalism began gaining traction in the 1970s and 1980s, its proponents frequently cited its supposed constraining impact on judges as a virtue. This claim fit well both with originalism's ideological origins and its nature at the time. Although appeals to the framers were a common trope in judicial rhetoric in prior periods, by the time originalism began to crystalize as an "ism," it was largely a program of resistance against what conservatives saw as the excesses of the Warren Court and, to the extent that the Burger Court built on or failed to cut back on the work of the Warren Court, the Burger Court as well. At the time, originalism was generally promoted as aiming at implementing the framers' intent, which was thought to be reasonably determinate in its concrete applications. E.g., if the framers of the Fourteenth Amendment did not intend (or expect) it to forbid most forms of sex discrimination, then arguments for sex equality under the Fourteenth Amendment were inconsistent with this first wave of originalism.

Partly in response to withering criticism, originalism morphed over time, so that most people (and nearly all academics) who call themselves originalists now claim that what binds is the original public meaning of the Constitution's text, rather than the concrete intentions and expectations of its framers and ratifiers. And because the original public meaning of the more open-ended clauses of the Constitution tends to be, well, open-ended, original-public-meaning originalism tends to be substantially less determinate than (at least the claims that have been made for) old-style original intent. Originalists solved the problem of seemingly having to support a view of the Constitution that allows official sex discrimination and other unacceptable practices by sacrificing determinacy.

Except that most original-public-meaning originalists cling to determinacy as a virtue. They no longer claim that originalism is close to fully determinate, but they still frequently claim that it is substantially more determinate than other approaches to constitutional interpretation. This claim is empirically testable. If originalism were a methodology that constrained justices, one would expect that a justice who practiced originalism would be somewhat ideologically unpredictable. And yet, as I shall explain, originalism in practice is predictably conservative.

Thursday, August 24, 2017

The Press Continues to Give Trump a Pass on His Nonexistent Policy Agenda

by Neil H. Buchanan

[August 26, 2017: This column has been updated to fix some editing errors.]

There are serious concerns that Donald Trump's ceaseless rhetorical attacks on the news media could lead to very non-rhetorical violent attacks on reporters.  Trump hates to be the subject of negative coverage, so he attacks the messenger rather than changing his message.

One of the reasons that Trump is angry is that news organizations have made some efforts to prevent Trump's outrages from seeming at all normal.  The word "lie," which used to be all but taboo in American journalism when discussing politicians (and certainly presidents) has been forced into service in response to a president who lies constantly.

Even so, habits of mind persist.  There is, for example, a running list of Trump's lies in The Washington Post, yet the most recent update, "President Trump's List of False and Misleading Claims Tops 1000," uses all of the euphemisms for "lie" but contains not a single usage of the l-word.

What is all too easy to forget is that, even now, Trump benefits from journalistic habits and rituals that make him look much more effective -- and his policies much more defensible -- than the evidence can support.  It turns out that, especially on policy matters, reporters seem to have a default mode that gives Trump a pass and treats him as perfectly normal.

With a huge debate looming over whether Trump and the Republicans will be able to transfer trillions of dollars to the superrich from everyone else, this journalistic sloppiness matters.

Wednesday, August 23, 2017

Neo-Nazis, Wedding Cakes, and Compelled Speech

by Michael Dorf

On Verdict, my latest column addresses the free-speech implications of the denial by various internet companies of hosting, registration, and other services to the neo-Nazi website The Daily Stormer. To summarize and over-simplify, I argue: (1) Such companies (such as GoDaddy and Google) did not breach their contractual Terms of Service; (2) they did not violate the First Amendment, because as private actors, the Constitution (with the exception of the 13th Amendment) does not apply to them; (3) we ought nonetheless worry about an internet in which private censorship can deny a platform to unpopular speech, if not for the sake of neo-Nazis then for others; (4) Congress could address that issue with a statute imposing common carrier obligations on internet companies in most circumstances; and (5) such a statute could probably carve out an exception that allows such companies to refuse service to purveyors of hate speech. (I hedge by saying "probably" here and in the column because there is a possibility that the hate-speech exception would be struck down on the authority of R.A.V. v. City of St. Paul, about which I might have more to say in a subsequent post.)

Here I want to explore the interests asserted by the likes of GoDaddy, Google, and other internet companies in denying service to neo-Nazis and their ilk. I'll then consider implications of my analysis for the pending Supreme Court case of Masterpiece Cake Shop v. Colorado Civil Rights Comm'n.

Tuesday, August 22, 2017

Northerners, Heritage, and Confederate Sympathies

by Neil H. Buchanan

The day after a Klan sympathizer drove a car into a crowd of counter-protesters in Charlottesville, killing one person and injuring nineteen others, I received an email from a friend:
"The driver who killed the counter protester in Charlottesville is from Maumee (Ohio). I think there's something extra awful about northerners defending the confederate cause."
This was personal, because I grew up in Maumee, which is a suburb of Toledo, near the northern border with Michigan and only about an hour from Detroit.

I responded that I knew of one guy from my high school class who had joined the KKK, and I thus assumed that there have always been white supremacist groups in that area.  Indeed, there are right-wing extremist groups all over the country, from New York State to Michigan to Montana and beyond.  In a way, therefore, there was no reason to be surprised that my home town -- any home town -- could have produced this kind of monster.

As it turned out, the murderer in this case was not really from Maumee.  After some quick checking online, I learned that he had grown up in Kentucky and had only moved to Ohio a year ago after his mother took a job there.  For no good reason, I exhaled and felt some sense of relief.

Mirroring the second sentence of my friend's email, I also found myself thinking, "Well, Kentucky, I see.  That makes more sense."  But does it?  Kentucky was not in the confederacy, either, and there are certainly areas of other non-secessionist states (Illinois, Indiana, Pennsylvania) that were sympathetic to the South.  My current home state of Maryland, of course, has its own complicated story.

So my question is whether my friend's strong visceral reaction to northerners who defend the confederate cause -- a negative reaction that I fully share -- makes sense.  In order to answer that question, it is necessary to understand where our gut-level reaction comes from.