Thursday, April 27, 2017

Saturation Coverage of Non-News About Tax Policy

By Neil H. Buchanan

During the 2016 election campaign, Donald Trump hit a low point with the press when he announced that he would make a "major statement" about the birther controversy, supposedly to tell the world at long last that he had been wrong to say for years that Barack Obama was not a natural-born U.S. citizen.

In fact, Trump used the occasion to lead a meandering media event that he turned into an infomercial for his new hotel in Washington, D.C.  Finally, after jerking around the assembled press for what seemed like an eternity, Trump quickly said that Obama was born here and that the birther controversy was Hillary Clinton's fault all along.  He then left the room.

I take this trip down memory lane because that cynical manipulation of the press was supposed to have been a defining moment, the day that the press finally woke up and refused to be "played" by Trump's ongoing reality-TV show.  But of course, the press has instead slouched back into its familiar role of eagerly reporting on everything that comes out of the White House as if it is news.

Which brings us to this week's hysteria over Trump's "massive" tax cut.  Nothing of any real significance happened this week regarding tax policy, but reading the news coverage would make a reasonable person think that the world has just been shaken by the announcement of a major policy proposal.

In short, by doing nothing more than pretending to have something to say, Trump "won the news" again this week.  We know nothing more than we knew a week ago, but Trump succeeded in making it look as though he was doing something big before the 100-day mark of his presidency.  What can we learn from this non-event?

Wednesday, April 26, 2017

Wrongful Birth Suits: What's In a Name?

by Sherry F. Colb

In my Verdict column for this week, I discuss the legislation currently pending in Texas to abolish the cause of action for wrongful birth.  A wrongful birth suit is one in which the plaintiff claims that had the defendant done what he was supposed to do (e.g., a doctor notifying a pregnant patient that her fetus shows signs of severe abnormalities), the plaintiff would have terminated her pregnancy and the child would accordingly never have been born.  The plaintiff, if successful, can recover expenses occasioned by the birth of the child whom she would not have had in the absence of the defendant's wrongful conduct (or wrongful omissions).  In my column I discuss the implications of wrongful birth suits, both for issues surrounding abortion and for the symbolic meaning of such suits for people living in the world today who suffer from severe disabilities (of the sort for which the plaintiffs in such suits would have terminated their pregnancies).

In this post, I want to focus on the names that we give the lawsuits at issue, "wrongful birth" or "wrongful life" suits.

Tuesday, April 25, 2017

Trump Is -- Gasp! -- Being Dishonest About the National Debt

by Neil H. Buchanan

It has always been clear that Republicans are situational deficit hawks.  They are perfectly happy to run up huge amounts of debt when their men occupy the White House, and even to leave spending for their wars off of the official accounts.  When a Democrat becomes president, however, suddenly those Republican opportunists claim to be terrified of debt.

It was not surprising, then, that Donald Trump ran on an especially aggressive version of debt obsession, claiming that there was a "magic number" of "24 trillion ... 23 ... 24," one of which he claimed is "the number at which we become a large-scale version of Greece."

The most obvious reaction at the time was to point out that Trump's promises regarding military spending and huuuuge tax cuts (those tax cuts alone adding roughly a trillion dollars per year to the debt) would make it impossible to pay down the national debt, which Trump also promised to do.  But as a candidate, he had fun.  Why would he start to pay attention to reality now?

Monday, April 24, 2017

Hate Speech Is Free Speech, But Maybe It Shouldn't Be

by Michael Dorf

A student group at UC Berkeley invited Ann Coulter to speak. The event was cancelled due to ostensible security concerns in circumstances that led most reasonable observers (including me) to conclude that a substantial part of the reason Coulter was uninvited was the unpopularity of her views. There followed a round of condemnation of Berkeley and the presumably liberal "snowflake" millennial students who can't handle speech that spreads messages they find offensive, with the condemnation coming not only from the right but also from people who strongly disagree with Coulter (e.g., Coulter's fellow Cornell alum Bill Maher).

Enter Howard Dean, who defended Berkeley's rescission of its invitation on the ground that "hate speech is not protected by the first amendment." Numerous commentators correctly pointed out that under existing case law hate speech is protected by the First Amendment, with a Volokh Conspiracy piece by Eugene Volokh laying out the basics effectively.

Dean doubled down, citing a 1942 case, Chaplinsky v. New Hampshire as supposed authority for the view that the First Amendment does not protect hate speech. Dean is clearly wrong about Chaplinsky, however.

And so we learn that a medical doctor who served as governor of Vermont does not know a whole lot about constitutional doctrine. Quelle surprise! This episode would be mildly amusing, were it not for the fact that as a story of ignorance in high places it seems wholly inconsequential when compared to the fact that we have a former real estate developer/reality tv star for a president, and he does not even know how many articles the Constitution contains, much less what any of them says.

Turning back to Dean, we can grant that he was clearly wrong in his description of current case law. But the issue he raised is more complicated than the legal and journalistic establishment seem prepared to acknowledge.

Friday, April 21, 2017

Is It Even Possible to Be Too Hard on Supply-Siders?

by Neil H. Buchanan

The Republican leadership uniformly despised Donald Trump during last year's primaries, fiercely opposing him before finally meekly submitting to his misrule.  Throughout this tragicomedy, however, Trump and his party have always agreed on one thing: the magical effects of tax cuts for rich people.

No matter what concerns Republicans might have had about Trump's anti-trade shouting, or his proud ignorance of foreign affairs, or his very un-Republican track record on social issues -- a record that has not prevented Trump from now supporting the worst excesses of his party's culture wars -- Trump was as solid as a rock on regressive tax cuts and heedless slashing of safety and environmental regulations.

Trump is, in short, every bit as much of a believer in supply-side economics as every other eager Republican has been for the past generation or so.  This is why his decision to turn the page from his growing list of abysmal failures by trying to enact a big change to the tax code has made it important to understand again just what is wrong with the trickle-down version of supply-side economics that Republicans so fervently embrace.

In a number of recent columns, I have offered some fairly brutal assessments of supply-side economics.  I have argued, for example, that "those who genuinely continue to believe in the miraculous effects of supply-side tax cuts represent the triumph of faith over reason."

It is, however, worth stopping to ask whether I am being too hard on the supply-side devotees.  Is support for their theory as weak as I have been saying?  The answer is, if anything, that I have gone too easy on them.  It might well be impossible to be too dismissive of supply-side economics.

Thursday, April 20, 2017

Trump, Syria, Tienanmen, and the Downside of Civilian Control of the Military

by Michael Dorf

In my latest Verdict column, I weigh in on the debate over whether President Trump's April 7 cruise missile strike against a Syrian airbase violated domestic constitutional law and/or international law. Here is the nutshell version: 1) Trump needed but did not receive congressional authorization as a matter of domestic constitutional law, although in that respect his action conforms to a longstanding pattern (in which Congress has acquiesced) of accretion of war-initiating power in the White House; and 2) the action violated the UN Charter because it was not plausibly justified as individual or collective self-defense of states nor authorized by the Security Council, notwithstanding arguments by some scholars (most prominently Harold Koh) who say that humanitarian interventions are legal even absent Security Council authorization. The sorts of arguments made by Koh and other interventionists are contestable on their own terms and could ultimately undermine international law and thus the substantive humanitarian norms that the interventionists seek to protect.

In this post, I want to step back from the immediate controversy and even from the broader legal questions they raise about humanitarian interventions to report on a fascinating conversation I recently had with a Chinese scholar. That has led me to conclude that executive unilateralism is something of a universal problem and that a much-vaunted feature of many constitutions--civilian control of the military--is a double-edged sword.

Wednesday, April 19, 2017

Competitor Plaintiffs in Emoluments Clause Case Bolster Standing

By Michael Dorf
(cross-posted on Take Care)

Almost immediately after President Trump's inauguration, Citizens for Responsibility and Ethics in Washington ("CREW") filed a lawsuit against him alleging multiple violations of the Emoluments Clause occasioned by Trump's continuing to profit from his opaque business empire. The complaint alleged that CREW has standing because, as a government ethics watchdog agency, it would incur very substantial additional costs monitoring and otherwise responding to Trump's activities.

Some commentators objected that such costs ought not to suffice as an "injury" sufficient to confer standing under the Constitution's Article III because, they said, if it did, then any self-appointed do-gooder could manufacture standing simply by asserting an interest in monitoring and responding to alleged wrongdoing. These commentators typically cited Clapper v. Amnesty Int'l USA for the proposition that CREW suffered from a mere "self-inflicted injury." Yet, as I argued in response, the skeptics were falsely assuming that Clapper and other recent cases sub silentio overruled the chief standing case on which CREW relied: Havens Realty Corp. v. Coleman, which articulated the monitoring/response cost theory of standing.

That said, although Havens remains good law to support CREW's standing in the lower courts, the current Supreme Court might either overrule Havens or (mis)construe it as inapplicable to CREW, if and when the case arrives there. Although lower courts are forbidden from anticipatorily overruling SCOTUS cases on the ground that subsequent doctrinal developments have weakened them, the SCOTUS can of course overrule its prior decisions. Accordingly--and prudently--the CREW complaint has now been amended to add claims by parties that stand to lose money as a consequence of Trump's Emoluments Clause violations: a restaurant association suing on behalf of itself, its member restaurants, and restaurant workers; and Jill Phaneuf, a Washington, D.C.-based events booker who works with non-Trump hotels. The addition of these plaintiffs should make the lawsuit bulletproof on standing grounds.

Tuesday, April 18, 2017

Democrats Score Another Strategic Victory on Trump's Tax Returns

by Neil H. Buchanan

The annual deadline for filing taxes is guaranteed to bring out plenty of discussion of tax reform, and with a new president in office, the buzz is inevitably going to be even louder.  Unfortunately, that new president is Donald Trump, so this year's political discussion about taxes has become both deafening and stupefying.

Monday, April 17, 2017

To Fix the Confirmation Process We Need to Face the Truth About SCOTUS

By Eric Segall

As the dust settles over the bitterly partisan confirmation battles over Judge Garland and Justice Gorsuch, there is a large consensus that the Supreme Court is a damaged if not broken institution. Liberal commentators have been speculating, for the first time in 85 years, about the possibility of a Court packing plan the next time the Democrats hold both the Congress and the Presidency. The Editorial Board of the New York Times recently worried that the politics surrounding who nominates and confirms future Justices could “shake the court system and American jurisprudence to its core.” Even Chief Justice John Roberts lamented this week that that it will be “very difficult … for a member of the public to look at what goes on in confirmation hearings these days …and not think that the person who comes out of that process must …share that partisan view of public issues and public life.”

In light of Justice Gorsuch’s refusal to answer any meaningful questions at his confirmation hearing, as well as the GOP’s stonewalling of Judge Garland, it is tempting for Court watchers, as well as the Chief Justice himself, to blame the confirmation process for the current despair over the Court. But that leap is a serious mistake. The main reason the confirmation process is broken is that the way the public and the Senate view (or at least talk about) the Supreme Court is at odds with reality. Before we can fix the confirmation process, we need to have a more honest conversation about the Court itself.

Friday, April 14, 2017

The Gang That Can't Shoot Straight Takes Aim at the Tax Code

by Neil H. Buchanan

One of the recurrent questions of the Trump era has been whether there is any difference between the president and the rest of the Republican Party.  It is not just a matter of noting the many ways in which the national party establishment, which uniformly reviled Donald Trump during last year's primaries, so quickly and embarrassingly fell into line, although that is certainly a story in itself.

The bigger question has been whether the Trump Administration's conspicuous incompetence is merely a result of the White House team's inexperience or is instead evidence of something deeper.  It is becoming clearer every day that the Keystone Kops-like ineptitude that we are seeing in the era of Republican dominance is caused by ideological commitments and political rigidities across the Republican terrain.

There is, of course, a certain comfort in all of this.  As John Dean put it recently: "The [Trump Administration's] incompetence is the only thing giving me comfort at the moment."  But is it really just Trump and Steve Bannon who are being exposed as bumblers?

Thursday, April 13, 2017

Advice to Conscientious Originalists: Rebrand

by Michael Dorf

My post on Tuesday on the stakes of the originalism debate sparked very thoughtful responses by two of the leading "new" originalists: Georgetown Law Professors Larry Solum and Randy Barnett. In a Postscript I added to update my original post, I was happy to accept fully one of Prof. Solum's points (about the use of the term "semantic originalism") and to clarify how much of the level-of-generality argument I meant to endorse. Meanwhile, Prof. Barnett zeroed in on a claim I made in both Tuesday's post and at greater length in my 2012 Harvard Law Review essay The Undead Constitution: that scholars who in good faith pursue public meaning originalism thereby provide aid and succor to judges, public officials, and pundits who misuse their work in defense of original-intentions-and-expecations originalism or worse, ideological originalism.

Well so what? Why, Prof. Barnett asks, should the fact that some actors promote bad originalism prevent scholars with integrity from pursuing good originalism? Building on Prof. Barnett's piece, Prof. Solum argues that constitutional scholars ought to be scholars first and thus our obligation as scholars to "speak the truth" should prevail over any putative obligation to avoid giving ammunition to those who would misuse it.

Here I will briefly respond to this important question that Professors Barnett and Solum raise. To summarize, my answer is that scholars who are persuaded that public meaning originalism is correct should pursue public meaning originalist scholarship but that they should give it a new name that does not include any variants of the words "originalist" or "originalism."

Wednesday, April 12, 2017

United Airlines' Own Contract Denied it any Right to Remove Passenger

by Jens David Ohlin

On Sunday, United Airlines passenger David Dao was forcibly removed from his United Airlines flight when he refused to relinquish his seat. The police officers who removed him from the seat then dragged him down the aisle of the airplane. Videos of the incident show a visibly injured and bloodied Dao screaming. Videos also show a clearly injured Dao returning to the plane, walking up and down the aisle, and muttering that he needed to get home. He was then escorted off the plane a second time.

The incident has caused a PR nightmare for United Airlines. Videos of the incident have reinforced the public perception that airlines care too much about their profit margins and too little about their passengers. The initial public comments from the airline exacerbated the PR crisis by insufficiently recognizing the depth of the public’s anger over the issue. Instead of apologizing profusely in the first instance, the airline initially issued statements indicating that it was reviewing the situation and apologizing only for the need to “re-accommodate” the affected passengers. Only later did United CEO Oscar Munoz issue a blanket apology for the incident and pledge a full investigation and review of its policies that led to the event.

The airline’s stock has declined since the incident became public, and some on the Internet are suggesting a consumer boycott. Twitter users have relentlessly mocked the airline with a series of vicious memes.

For the moment, I want to focus on the basic premise—and legal assumptions—behind most of the press accounts of the incident. Most articles and news reports have implied that the airline was permitted to remove Dao from the airplane. Articles have made this claim as part of a larger point to readers: Airlines frequently overbook their flights and “bump” passengers, and then pay them compensation in line with federal regulations governing the payment of this compensation.  It happens all the time, according to the newspapers.

One-Sided Dishonesty

by Neil H. Buchanan

My two most recent columns addressed two very different subjects.  The Senate Democrats' filibuster of the Gorsuch nomination to the Supreme Court is worlds away from the Republicans' continued faith-based belief in supply-side economics, but both columns ultimately came back to the same larger points: Republicans' embrace of shameless dishonesty, and how everyone else should respond.

Yes, I know that no political party can ever be made up of angels, and people who write columns like this one are supposed to say that "both sides do it."  A few months ago, for example, after The New York Times published a guest op-ed arguing that Donald Trump is a threat to democracy, two letter writers were irate.

Supposedly, the problem was not that the op-ed had argued that Trump is a danger to democracy.  The big sin was instead that the op-ed's authors had not also chided Democrats.

Tuesday, April 11, 2017

The Stakes of the Originalism/Textualism Debate

by Michael Dorf

(Updated with a Postscript below.)

For a period after Justice Scalia's death, when it appeared as though President Obama would be able to name Scalia's successor and that a Democratic president would fill future vacancies, various commentators wondered whether Scalia's chief jurisprudential legacy--originalism in constitutional adjudication and textualism in statutory adjudication--would have staying power. For example, Prof. Eric Posner predicted that originalism would fade. Last week's Senate confirmation of Justice Gorsuch, who was happy to embrace the originalist and textualist labels, ensures that there will continue to be a market for briefs that make arguments appealing to originalist justices; this real-world relevance will in turn likely give a boost to originalist scholarship.

By originalist scholarship I do not mean historical scholarship. Just about all jurists and scholars think that the history surrounding the adoption of authoritative legal texts (be they constitutional or statutory provisions) has some substantial relevance to its proper contemporary application. What makes originalism ostensibly distinct from other views is what Prof. Larry Solum has called the "fixation thesis"--the notion that the meaning of a provision is fixed at the moment of its enactment--and the "constraint thesis"--the notion that this fixed meaning constrains constitutional practice. One can concede both points to Solum and concede further that whether judges accept these theses affects how they write opinions justifying their rulings. However, for reasons similar to those elaborated on this blog last week by Prof. Eric Segall in describing a recent article by Prof. Peter Smith, I think that whether a judge accepts Solum's theses has little immediate practical impact. Nonetheless, the stakes in the debate over originalism are not as low as one might think, as I shall explain.

Monday, April 10, 2017

The Rule of Law and Politics at the Supreme Court

By Eric Segall

Over the weekend I participated in a wonderful constitutional law conference at Pepperdine with among many others, Michael McConnell, Mark Tushnet, Akhil Amar, Erwin Chemerinsky, Judge Posner and Barry McDonald. The overriding question of the day was whether structural changes to the Court are necessary given our hyper-partisan times. Although folks disagreed over that question, there was a general consensus that the Supreme Court is in some important sense "political," although folks meant different things by using that label, which is the point I want to focus on in this essay.

Senate Democrats Show Strength, Liberal Pundits Show Weakness

by Neil H. Buchanan

And now Judge Gorsuch is Justice Gorsuch, completing the successful scorched-earth maneuvering by Senate Republicans to move the Supreme Court even further to the right.  May God have mercy on Mitch McConnell's soul (if He can find it).  As bad as this is, it is not a surprise.

What is surprising is that the Senate Democrats actually figured out a way to make a few good things happen in the midst of this yearlong travesty, even though they knew that they would lose the ultimate battle.  Somewhat more surprisingly, Democratic politicians were actually more savvy than the left-leaning pundits this time around.

Sunday, April 09, 2017

Imagining the End of President Trump

By William Hausdorff

There continues to be a steady drip of revelations about Russian links, unending lies surrounding them, and a snowballing accumulation of lawsuits.  I’m now trying to imagine what specific revelations would have to come to light for this Presidency to be fatally wounded, and which Republicans would eventually stand up to Trump.

Friday, April 07, 2017

Expanding Reality-Based Law in the Death Penalty Area

by Sherry F. Colb

In my most recent Verdict column, I discuss the case of Moore v. Texas, in which the Supreme Court rejected the Texas approach to determining whether a defendant is intellectually disabled and therefore ineligible for the death penalty.  A Texas state habeas court had recommended a finding of intellectual disability for Moore, applying standards from the most up-to-date clinical manuals addressing intellectual disability and mental disorders.  The Texas Court of Criminal Appeals ("the CCA") rejected the state habeas court's recommendation, however, applying instead the standards contained in a 2004 case, Ex Parte Briseno, which utilized a combination of standards from an older intellectual disability manual (since superseded by the one used by the state habeas court) and several factors seemingly invented by the Briseno court and related to stereotypes about the intellectually disabled (including a reference to the intellectually disabled character, Lennie, in John Steinbeck's 1937 novel, Of Mice and Men).  The U.S. Supreme Court reversed the CCA's decision, finding that the court should have applied up-to-date clinical standards to determine whether Moore was intellectually disabled.  In the column, I contrast the Court's preference for the truth regarding a convict's being intellectually disabled with the Court's and the evidence rules' willingness to entertain fictions as a premise for various rulings and rules.

Thursday, April 06, 2017

Prices, Money, Speech, and Democracy

by Michael Dorf

In my latest Verdict column, I question the wisdom of last week's Supreme Court decision in Expressions Hair Design v. Schneiderman. The case involves a NY statute that--as construed by the Supreme Court in reliance on the earlier opinion by the Second Circuit--forbids merchants from placing a "surcharge" on credit card purchases, while allowing a discount for cash purchases. Because these are economically identical, the Court said, the NY law is really a regulation of how merchants communicate with their customers and thus a regulation of commercial speech. Accordingly, the SCOTUS remanded to the Second Circuit for application of commercial speech precedents.

In my column, I connect Expressions Hair Design with the Court's campaign finance case law and express the concern that under the guise of freedom of speech, the Roberts Court may be undermining the New Deal settlement, by which courts grant near-complete deference to elected officials in regulating the economy. Here I want to elaborate the campaign finance point.

Wednesday, April 05, 2017

Professor Peter Smith and Originalism as Levels of Generality

By Eric Segall

I have been writing, reading, teaching and talking about originalism since 1995.  I try to keep up with the literature (a daunting task) but that perseverance can pay great dividends as it did this week when reading Professor Peter Smith's new article "Originalism and Level of Generality." Smith provides a wonderful explanation of just how far most contemporary academic originalists have strayed from a theory separate from "living constitutionalism," while also pointing out how inconsistent Justices Scalia and Thomas have been in their selective use of historical reasoning. While others including Mike and I have also told a similar story, Professor Smith has done an excellent job recounting it and bringing it up to date. I have never met Professor Smith but anyone interested in the current debates over originalism should read this piece.

How My Satirical April Fools' Essay Became Real Fake News

by Michael Dorf

Yesterday my April Fools' blog post criticizing the Trump administration for a non-existent plan to run ads urging people not to sign up for health insurance on the exchanges created pursuant to the Affordable Care Act was republished by Newsweek as though it were real. The amusing error says much less about Newsweek--given the sequence of events I'll describe below--than it does about Donald Trump.

Tuesday, April 04, 2017

A Do-Nothing Presidency is Win-Win

by Neil H. Buchanan

Why should Donald Trump bother trying to do anything during his presidency?  One answer might be that he has a list of things that he genuinely wants to accomplish, but that hardly seems likely.  He never really cared about anything other than insulting Barack Obama and spewing bigotry, and his views on substantive policy issues have always been, shall we say, fluid.

Even so, Trump has shown signs in the past few weeks of actually caring about notching "wins" in his presidency.  This is perhaps understandable for a person who loves to pin the loser label on everyone else.  Yet it truly is surprising that Trump is putting in something resembling real effort on various issues, especially issues on which he need not weigh in.

In a recent column, for example, I discussed Trump's unexpected embrace of the American Health Care Act, and I asked why he would "put his own credibility on the line with a bill that is obviously a train wreck."  The train subsequently crashed, and sure enough, Trump looks like a loser.

Unsurprisingly, he has been spending his time over the past week or so blaming everyone and anyone for that embarrassing defeat.  And now he wants to get involved in the tax reform food fight?  That is a recipe for political disaster for ever a skilled politician.

The question is: Why does Trump not simply give up now and play-act his way through a presidency in which nothing much happens?  This would make it possible for him not ultimately to be judged the worst president in history, and it would also allow him simply to enjoy the pure ego trip of being president.  Does he have the survival instincts to decide to do nothing?

Monday, April 03, 2017

Alternatives to the Pence Principle

by Michael Dorf

Since the (re)revelation that Vice President Mike Pence does not dine alone with women not his wife or attend parties where alcohol is served without his wife, most of the critical attention paid to this story (such as this Vox piece) has focused on the resulting (arguably illegal) denial to women of equal opportunities for career advancement, with a smattering of essays (such as this Atlantic piece) slotting the furor itself into a narrative of disconnection between religious conservative America and secular liberal America. Here I'll add a couple of observations about the phenomenon itself and then offer a thought about how someone with Pence's concerns might address them in ways that do not adversely affect women.

Sunday, April 02, 2017

Don't Celebrate Prematurely: The Trump Administration Has A "Plan B" For De-Funding Planned Parenthood

by Diane Klein

The collapse of the American Health Care Act (AHCA) was the biggest headline of March 24, 2017. The New York Times called it a "major defeat," and the next day, CNN called it an "acute embarrassment."  What Paul Ryan presented to the Republicans as a Hobson's choice - take this version of "repeal and replace" or nothing at all - instead left him in the position of Buridan's ass: starved for votes, unable to move left without alienating the Freedom Caucus (née the Tea Party), or right without losing moderate Republicans.

A crucial flashpoint in the debate was Planned Parenthood, a bête noire of the far right. The abandoned AHCA included provisions that directly targeted the organization, although not by name.  As the CBO explained, the AHCA cut off federal funds to any 501(c)(3) entity both "primarily engaged in providing family planning and reproductive health services and related medical care" and "that provides abortions" (other than in cases of rape, incest, or to save the woman's life), and, crucially, "that had expenditures under the Medicaid program that exceeded $350 million in fiscal year 2014."  There is only one such entity: Planned Parenthood Federation of America (including its affiliates and clinics).

Naturally, Planned Parenthood and its supporters were exultant at having "saved" the funding, and even the Breitbart.com story that day was headlined, "Cecile Richards Credits Planned Parenthood Supporters With Stopping AHCA." But while all of us were distracted by Devin Nunes and the unfolding Russia scandal, the Republicans kept Planned Parenthood in the crosshairs. On March 30, 2017, Vice President Mike Pence, an ardent abortion foe, cast a tie-breaking vote in the Senate to send a new defunding bill to Trump's desk. And given the alacrity with which Trump reinstated the "Mexico City policy" barring foreign aid to groups that even provide abortion counseling - it was one of the executive orders Trump signed on his first business day in office, January 23, 2017 - there is no reason to think he will hesitate to sign this bill.

Saturday, April 01, 2017

Law Profs React to Trump Order Authorizing Anti-Obamacare Ads

by Michael Dorf

Remember back when conservatives were going nuts about how President Obama was supposedly acting like a king because he was using prosecutorial discretion to prioritize deportation of violent criminals while supposedly giving legal status to various categories of undocumented immigrants? Most liberals pushed back by arguing that the programs at issue in what became the 4-4 deadlocked case of United States v. Texas did not actually present a problem under the Take Care Clause of Article II because the real issue was simply one of statutory construction. Nevertheless, a few liberals--including yours truly and, most prominently, UC Hastings law professor Zach Price--warned that we ought to be worried about some of the arguments being advanced to sustain executive power in the unlikely but terrifying event of a Trump presidency. (I summarized the debate in a blog post almost exactly a year ago.) Now that the unlikely and terrifying has come to pass, I take no satisfaction in saying "I told you so." But I say it nonetheless.

Friday, March 31, 2017

"Health Care is not a Right" is the new "Death Tax," Only Worse

by Michael Dorf

During the debate over the ill-fated "American Health Care Act," Freedom Caucusers and other critics from the right who thought that the measure did not go far enough toward completely repealing the Affordable Care Act frequently used the same talking point. Health care, they asserted, is not a "right." Many of these statements were uttered without any concrete semantic intentions; the utterers were simply dog-whistling their anti-government base while misleading the broader public, much in the way that Republicans previously learned from the likes of Frank Luntz to call the estate tax the "death tax" and to decry the Affordable Care Act as a "government takeover" of health care. Indeed, as I shall explain, if anything, the new rhetoric is even more misleading than the Luntzian malphemisms.

Thursday, March 30, 2017

Paul Ryan's Afterlife

by Neil H. Buchanan

The world finally caught on to Paul Ryan's game last week.  The Speaker of the House might not survive his inability to find enough Republicans to vote for his deeply unpopular and poorly crafted American Health Care Act -- a gratuitously cruel bill that Donald Trump, for no apparent reason, had embraced so completely that Ryan's bill became Trump's bill (TrumpRyanCare, as I called it) and Ryan's failure became Trump's failure.

One of Trump's strongest supporters on Fox News (which is filled with people vying to be Trump's strongest supporter) immediately called for Ryan to go.  The editors of The New York Times paired their scathing criticism of Ryan with a brilliant caricature showing Ryan as a tiny head on top of an oversized suit.  I have been calling Ryan an empty suit for years, so that one was especially fun to see.

I am not predicting that Ryan will actually be taken down by this latest display of his emptiness.  I have no greater predictive powers about such matters than anyone else, and if I possessed such powers, I would be inclined to use them for better purposes.  Instead, I want to explain why Ryan should want to treat this situation not as a threat but as an opportunity to leave Congress.

Wednesday, March 29, 2017

Attempting Confidentiality Rules With Non-Professionals

by Sherry F. Colb

In my column for this week, I discuss the case of Peña-Rodriguez v. Colorado, which held that an evidence rule prohibiting jurors from testifying about their deliberations in a hearing to invalidate a verdict (a "no impeachment rule") had to give way to the Sixth Amendment right to an impartial jury in a case in which the jurors would have testified that one of the other jurors endorsed racial stereotypes and indicated, among other things, his view that the criminal defendant was guilty of sexual misconduct because he was Mexican.  In both the majority and dissenting opinions, the Supreme Court exhibits respect for the no-impeachment rule (a version of which exists in every jurisdiction in the United States), a rule which is intended to protect jurors from post-verdict harassment and enable jurors to speak their minds during deliberations without worrying that their statements might later become public.

Tuesday, March 28, 2017

Will Republicans Burn Down the Senate to Cut Rich People's Taxes?

by Neil H. Buchanan

Even in a world where Republicans have shamelessly abandoned their supposed principles in order to embrace Donald Trump, the one thing about which they all still agree is that they must cut taxes on the rich.  On this point, Trump happily concurs.  Indeed, Trump's regressive economic views easily put him into what now counts as the Republican mainstream.

Now that they are looking for a place to start all the winning that Trump promised his non-majority of voters, the latest rumors are that congressional Republicans will take a run at the tax code.  Other commentators have noted that this is hardly an easy lift, especially because the details of a tax overhaul will quickly destroy whatever unity remains on the right.

That is surely correct, but my question here is a different one.  Suppose that the Republicans in Congress -- both their leaders and their most extreme members -- actually manage to get their collective act together and agree on the details of a huge gift to their wealthy patrons in the form of a tax "reform" bill.  Suppose also that Democrats in the Senate refuse to go along.  Are Republicans so committed to reverse Robin Hood policies that they will finally abandon all pretense of preserving Senate rules?

In other words, will Republicans "go nuclear" on tax cuts for the rich in the same way that they might change the rules to confirm Supreme Court nominee Neil Gorsuch?

Monday, March 27, 2017

Originalism Here, There, Everywhere and Nowhere

By Eric Segall

There was a time when a handful of legal scholars advocated for an originalist methodology that, if applied honestly, would significantly constrain judicial discretion even in hard constitutional cases. Professors Raul Berger and Lina Graglia, among others, argued that 1) the original meaning of the Constitution does not change; 2) that judges are bound by that meaning; and, most crucially, 3) judges should not invalidate decisions by other political actors unless those decisions are clearly and obviously inconsistent with that original meaning. If the original meaning of the text and history in question were subject to reasonable disagreement, then judges had to defer to other governmental officials.

Separation of Powers Better Justifies SCOTUS Nominee Reticence Than Judicial Impartiality Does

by Michael Dorf

Last week, I joined the chorus of academics decrying the futility of most of the questioning of Judge Gorsuch and other recent SCOTUS nominees. In a column, I agreed with Joe Biden's characterization of confirmation hearings as a "kabuki dance," even as I suggested that the hearings have some incidental educational value for the public. Then, in a blog post, I argued that Judge Gorsuch had introduced a new way for nominees to evade senators' questions: By characterizing just about every question as seeking his "personal"--and thus ostensibly irrelevant--opinion.

Judge Gorsuch also relied on the tried and true method of declining to answer questions about past cases on the ground that doing so would require him to pre-judge issues that could come or return to the Supreme Court, and thus compromise his impartiality. As numerous commentators have previously observed, this particular piece of conventional wisdom is highly dubious. If commenting, even tentatively, on whether he thought, say, Citizens United v. FEC or Obergefell v. Hodges, were rightly decided as an original matter would compromise Judge Gorsuch's impartiality in a future case seeking to construe their scope or overrule them, then, a fortiori, Justice Kennedy's impartiality is compromised in such future cases because he authored the majority opinions in both Citizens United and Obergefell. Yet no serious person thinks that Justice Kennedy (or the other justices who ruled on those cases) should be recused from any such future cases.

Accordingly, principles of judicial ethics do not justify the I-can't-comment-on-specifics-because-the-issue-might-come-before-the-Court excuse. In the balance of this essay, I want to suggest that there might be a somewhat better justification for that excuse: separation of powers.

Friday, March 24, 2017

Powerful People Prefer 'Personal' Relationships With Powerless People

by Neil H. Buchanan

The personal relationship that I have with my automobile insurance company is a cornerstone of my happiness.  Also, my sense of empowerment when I interact with my cable company makes me feel pleased that no one is coming between us.   I view it as essential to my life that those deep connections never be disturbed.

No, I have not lost my mind.  Instead, I am simply trying to force myself to think in the way that Republicans want me to think about the inherently unbalanced relationships that people with relatively little power have with the powerful.  Republicans ultimately rely on that deliberately naive view of "relationships" between individuals and powerful institutions to justify their anti-government crusades.

Thursday, March 23, 2017

Judge Gorsuch Makes It "Personal"

by Michael Dorf

My latest Verdict column went live yesterday morning, after a very full day of questioning of Judge Gorsuch by members of the Senate Judiciary Committee. The column makes a number of points about the way in which the Gorsuch confirmation hearing resembles other recent confirmation hearings--which I'll quickly summarize before turning to one way in which Gorsuch's answers strike me as novel.

Wednesday, March 22, 2017

Judge Gorsuch and the Role of Public Interest Litigation in our Democracy


by Alan K. Chen

In 2005, shortly before he was appointed to the federal bench, Supreme Court nominee Neil Gorsuch wrote a commentary for the National Review criticizing liberals’ reliance on litigation to accomplish social reform. This was not a surprising position for one of Federalist Society’s rising stars to take. Conservatives have long frowned upon public interest lawsuits as a means of pursuing social change.

Tuesday, March 21, 2017

Trump's Inescapable Carnival Act: Live By It, Die By It?

by Neil H. Buchanan

Has Donald Trump figured out how to beat the press?  There is understandable concern that his Twitter addiction has superseded the normal channels of political communication, and that he has in general put himself outside the rules of the old game.  If so, we have an even more serious problem than we thought.

Monday, March 20, 2017

Will Neil Gorsuch Be the Court’s First Originalist?

by David S. Cohen & Eric Segall

When Donald Trump nominated Judge Neil Gorsuch to the Supreme Court, he praised him as someone who will interpret the Constitution “as written.” Commentators from both sides of the aisle have described him as an “originalist” who will, in Gorsuch’s own words, rely on “text, structure, and history” to interpret the Constitution rather than his “own moral convictions.”

Sunday, March 19, 2017

Trust Buss'd

by Diane Klein

You don't have to know much about basketball to have heard of the Los Angeles Lakers, or to remember "Showtime," when the team won five NBA titles in the 1980s and Magic Johnson became a star. And you don't have to know much about estate planning to know why team owner Jerry Buss's succession plan was unlikely to succeed. All estate-planners know the grim statistics on family business succession.  Only around 30% of family businesses survive the death of their founder; just 16% make it to the third generation; and by the fourth generation (the founder’s great-grandchildren), just 3% are still in business and under family control.  This is actually a problem worldwide; family businesses in countries as different as Norway and Nigeria experience something similar.

Friday, March 17, 2017

Why the Establishment Clause Has Emerged as the Chief Stumbling Block for Trump's Muslim Ban

by Michael Dorf

Although the lawsuits challenging President Trump's first and second Muslim bans have offered a variety of legal claims, the one that has gotten the most leverage thus far appears to be the Establishment Clause challenge. Federal district courts in Hawai'i and Maryland both relied on the Establishment Clause as the basis for their invalidation of Ban 2.0 in the last few days. So did the federal district court in Virginia in enjoining Ban 1.0 in February. Why the Establishment Clause rather than the other claims?

Kasich Op-Ed on Health Care: The Annotated Version

by Neil H. Buchanan

Recently, The New York Times published a guest op-ed written by Ohio Governor John Kasich.  Kasich, a Republican, insists that he wants everyone to be moderate and bipartisan, especially regarding health care.

Some readers, especially those who have not yet hit their fortieth birthdays, might only know Kasich as the failed presidential candidate who managed to be among the last three men standing in last year's Republican primaries.  Other readers might simply have forgotten most of the key details of Kasich's long political career.

With that in mind, I am happy to provide here a translation of some of the key selections from Kasich's op-ed.  Think of it as Kasich under the influence of truth serum.


[Text]
John Kasich: End the Partisan Warfare on Health Care
By John Kasich, March 10, 2017

[Translation]
Hi, I'm John Kasich.  I was a member of Congress from Ohio for eighteen years, during which time my party made a lot of noise about how members of Congress should be term-limited to much less than eighteen years.  I became one of Speaker Newt Gingrich's top lieutenants in his successful efforts to end inter-party cooperation in the 1990's.  I voted to impeach President Bill Clinton.

Now, I am presenting myself as a moderate, and to my amazement, it seems to be working.  Even the editorial board of The New York Times all but endorsed me in the Republican presidential primaries last year, notwithstanding my extreme views on abortion, immigration, mitigating climate change, and nearly every other issue that matters.  Next to Ted Cruz, I looked less scary.  Lucky me!

[Text]
Americans are relying on leaders in Washington to fix health care, not engage in yet another unproductive partisan standoff. In 2010, one side of the political aisle in Congress, the Democrats, chose to “fix” health care unilaterally, without bipartisan support. The result was Obamacare, which has run up government spending while failing to drive down the cost of health care.

Now, with the political tables turned in Washington, the Republicans are starting down the same unilateral path, a course that can only further divide the nation. A true and lasting reform of the health insurance system must be accomplished by bringing the two sides together, not by replacing one divisive wedge with another.

[Translation]
I certainly know a lot about divisive wedges, and one of the best moves that people like me have developed over the years is to raise the level of vitriol and then complain that the conversation has become so unpleasant.  As but one small example, even as I posture about being nonpartisan, I make sure that I use the non-word "Obamacare" instead of Affordable Care Act.

Here, I am repeating the well worn lie that the 2010 negotiations over the health care bill were one-sided and that the Democrats refused to reach out to Republicans.  This is, as another op-ed for this newspaper put it, "The Original Lie About Obamacare."  The truth is that my Republican cohorts were told to oppose anything that Obama proposed, for purely political advantage.  Mitch McConnell, then the Senate Minority Leader, told his party's members to deny Obama any votes so that the president could not claim that the bill was bipartisan.

Having dishonestly characterized what the Democrats did in 2010, I now try to sound high-minded by saying that the Republicans should be bipartisan to show that they are better than Democrats.  But why should Republicans, who have the numbers to pass whatever they want, care about bipartisanship?  Because we will want to pass the buck when this thing goes bad, of course.  But I cannot say that out loud, so I will wrap myself in the warm glow of reasonable bilateralism.

The fact is that "true and lasting reform of the health insurance system" could be accomplished by one party.  If the Republicans really have a plan that would make people better off, they can pass it without Democratic votes and then let the people defend the law against future assaults.  But wait, that is what is actually happening with the ACA.

That law has not turned out to be perfect, but it has made people's lives much better, and a majority of the country now supports the law.  For that matter, there is a lot of support for a "Medicare for All" single-payer system, but I am not going to say that such a popular and less expensive plan should be adopted, because I am committed against all evidence to the idea that the ACA is a failure and that "market reforms" are the answer to every problem.  It is too inconvenient to note that the ACA is what a market-based health care system has to look like.

[Text]
"Throughout my career, I’ve learned that meaningful change happens only with bipartisan support. When I was chairman of the House Budget Committee in the 1990s, we were able to make over Pentagon spending, revamp welfare and balance the federal budget for the first time in decades because Democrats and Republicans made a commitment to work together. We disagreed and debated, but in the end we agreed to changes that strengthened our country."

[Translation]
I was the chairman of the House Budget Committee when Bill Clinton decided to triangulate on issues like welfare and the budget.  The federal budget was briefly balanced late in his term (as we were impeaching him), but that was to a significant degree caused by a surge of tax revenues during the dot-com bubble.

We got Clinton to agree to "revamp welfare" such that the harms of the bill would not be obvious until we experienced an economic downturn.  And when the Great Recession came, boy oh boy, did people suffer.  My party's response?  Cut off unemployment benefits even as the unemployment rate stayed elevated for years.

But the most important thing to remember about the 1990's is that Gingrich and I were the original post-truth hucksters.  Before he became a U.S. Senator, Al Franken and I got into an argument after a political event.  Newt had given his usual speech in which he bashed the press and Democrats for failing to understand that our Medicare plan would increase benefits from $4800 to $6700 over the space of several years.  Dumb liberals!

Franken, however, tried to get me to admit that these numbers were not adjusted for inflation.  He later recounted in one of his books that he succeeded in getting me to admit that we were being intellectually dishonest.  (The incident is described here.)  Not that I gave up easily, because it was really important to pretend -- even to Franken and a couple of journalists after hours -- that we were not lying.  But it did not really matter, because we just kept on lying about this even after Al got me to fess up.

So yes, Republicans and Democrats "disagreed and debated" in the 1990's, and I was one of the people who was polluting the debate with dishonest nonsense.  But now I am holding up those halcyon days of bipartisanship as an example for all to behold: Let us, as we did in the 1990's, agree across the aisle to figure out more ways to harm the most vulnerable people in the United States.

[Text]
"A responsible, and necessary, repeal and replacement of Obamacare must balance cost and coverage. ...  I have always opposed Obamacare and consistently called for it to be replaced with more conservative, market-driven reforms that actually control health care costs.  ...  But if both sides work together, we can fix Obamacare in a way that preserves coverage, stabilizes the market, reforms Medicaid and controls costs."

[Translation]
So which is it?  Am I in favor of repealing the ACA or "working together" to fix it?  I say that repeal is "responsible, and necessary," but I want to have it both ways, because I want to remain politically viable among Republicans (I'm term-limited in Ohio), but I also want to sound reasonable, too.  So I will say (as I have been saying for years) that we should get rid of the ACA entirely, but I will then say that we should adopt something that does what the ACA does.  If I sound like Donald Trump, please don't tell anyone.

Should I admit that I am unaware that health care inflation has moderated significantly for years, and that the ACA has not changed that?  Should I say out loud that the system has worked better even than its advocates had hoped, given the opposition to it in most Republican states?  No, I will say that the system's current problems are proof that we must throw out the system and adopt something new.

[Text]
"Republican legislation now moving swiftly through the House takes steps in that direction. But the legislation also phases out the expanded Medicaid coverage that is in place in Ohio and 30 other states. Not having a viable alternative is counterproductive and unnecessarily puts at risk our ability to treat the drug-addicted, mentally ill and working poor who now have access to a dependable source of care. ...

"Today we’re providing better coordinated care, Ohio’s Medicaid program is financially stable and per-member spending has been flat for over six years. We’ve been able to extend health care coverage to about 1 million Ohioans, more than 700,000 of them low-income adults.."

[Translation]
This is me in my "Aren't I a nice guy?!" mode.  I was one of the only Republican governors who did not reject the Medicaid expansion for my state, which made me look good in what is still a battleground state.  Now, I am taking credit for the increase in coverage of poor people in Ohio even as I support repeal of the law that caused the improvement, and even as I tell Democrats that they must agree to negotiate with people who are absolutely committed to cutting Medicaid.

[Text]"In my state, we believe that a job is the best anti-poverty program, so we are working to help neighbors who need a hand move up the economic ladder and get the skills and training they need. As we seek to do this, however, we can’t pull the ladder out from under them by taking away their health care."
 
[Translation]
I have now run out of anything even plausibly interesting to say, so I am filling space by saying things that no person could possibly disagree with.  Yeah, take that, all you people in not-Ohio states who don't think that a job is the best anti-poverty program!  As politicians do, I am now speaking in vague terms about the how we are "working" to make things better, not mentioning how much Republicans hate spending on all things, job training included.

I don't know, maybe I really do think it's a bad idea to take away people's health care when they are struggling.  Unlike the people who think that the poor deserve their lot in life, I am at least willing to think that they are victims of circumstance.  Yet I am not really willing to point out that only one side of the political aisle in Washington actually favors policies that would help them, or that the other side of the aisle will never agree to what I am saying here.

And now, I am going to go back to thinking about how to start a constitutional convention to pass a Balanced Budget Amendment, an idea so absurd that even conservative demigod Antonin Scalia ridiculed it.  I guess I'm just confused, but at least everyone knows that I would have been a huge improvement over the guy who beat me in every primary and caucus in 2016.  Except one.  Way to go Ohio!

Thursday, March 16, 2017

New "Take Care" Blog Aims To Hold Trump Accountable

by Michael Dorf

Today marks the launch of the Take Care blog, a new venture that will produce and collect critical commentary focusing on the Trump administration. The name "Take Care" comes from the Constitution's placement of an obligation on the president to "take Care that the Laws be faithfully executed." The commentary on Take Care will evaluate how well or poorly President Trump is complying with that obligation.

I don't usually use this space simply to promote other work, but I'm making an exception for two reasons: First, I am one of the contributors to Take Care, although my contributions will mostly consist of cross-posting material that appears here on DoL, on Verdict, and on Newsweek. But since DoL readers already have easy access to my musings, the second and better reason I'm making this promotional announcement is the importance of the project. Take Care will feature commentary by an extremely strong pool of law professors and lawyers. Indeed, it already does. I urge readers to check it out.

What Do Trump's Unforced Errors Tell Us About His Priorities?

by Neil H. Buchanan

Although Donald Trump's presidency is beginning to show recurring patterns -- which is not to say that he is becoming normal, but merely that some of the abnormality is now feeling drearily familiar -- we still know surprisingly little about what he really wants from being president.

Many of us have assumed all along that this is the ultimate ego trip for the world's most insecure narcissist.  There is still plenty of evidence to support that theory, of course, but lately I have begun to wonder if Trump is starting to show that he has an agenda that he truly cares about.

Or perhaps he is even more incompetent than he seemed to be all along.  He is supporting a regressive agenda, to be sure, but the surprise is that he is spending political capital on things that have so little upside for him politically or personally.  For a man who is all about being seen as a winner, he is picking some very foolish fights.

The most obvious current example is Trump's embrace of the Republicans' shockingly cruel and ill-conceived attempt to replace the Affordable Care Act (ACA).  Even before the Congressional Budget Office's released its analysis showing how many people would be harmed by the Republicans' bill, it was obvious that this was going to be a political mess.

During the campaign, of course, Trump had gleefully joined with all other Republicans in savaging the ACA.  He knows an applause line and how to raise the volume, but it never seemed that the issue was important to Trump other than as a way to call Barack Obama the Worst President Ever.  Trump is the perfect vehicle to level nonspecific and opportunistic complaints about the imperfections in the ACA.

As Republicans in Congress are learning, however, it is much more difficult to devise and defend specific legislation than to throw rocks through windows. Trump's entire political persona is about throwing rocks through windows, of course, so it is unsurprising that he piled on when it was fun.  But why stick with it now?

Trump, after months of being notably distant from the health care debate, has suddenly decided that he is a huge fan of the Republicans' bill, and he is urging his supporters to get behind it.  Even if Trump honestly was the last person on earth to discover that "health care could be so complicated," he knows now.  Yet he is throwing his weight behind his party's unpopular leaders' new, terrible bill.

What makes this surprising, and the reason I am calling this an unforced error, is that Trump could easily have continued to stay on the sidelines.  Even Barack Obama, after all, stayed largely out of the legislative process when the ACA was being formulated.  Although he eventually embraced the bill as his own, his supporters were frequently frustrated during the process by his unwillingness to get involved in the fight.  For example, the so-called Public Option went down essentially with little more than a whimper.

Trump could, in fact, have used his previous over-the-top hype about the ACA replacement as an excuse to step aside.  He could have simply said that he promised to support a bill that provided better coverage to everyone at a lower price.  "When Congress sends me that bill, I'll sign it."  He could even have tried to blame Democrats for somehow being the reason that the Republicans' magical bill never came into existence.

This unforced error raises a number of possibilities, as noted above.  He might be revealing that he cares about something other than his own self-importance.  Maybe he has concluded that, as a policy matter, the Republicans' bill is a fine piece of work.  We certainly have plenty of reason to believe that he does not care at all about the people who would be harmed by the bill, and he likes tax cuts for rich people.

But again, why put his own credibility on the line with a bill that is obviously a train wreck?  He will either be tarred by its ugly demise, or perhaps worse for Trump politically, he will be left to defend a terrible bill that somehow emerges from the food fight among Republicans and carries his name.  This suggests incompetence, not evidence of sincere belief in a proposed policy change.

Similarly, what is Trump thinking with his renewed enthusiasm for actually building the ridiculous "big beautiful wall" on the Mexican border?  He is requesting serious money in his new budget to begin building the wall.  What madness is this?

To be clear, I am not expecting Trump to admit that the idea of keeping out nonwhite people from the United States is an immoral position to hold.  I am simply saying -- as many, many people have said over the last few months -- that there are plenty of easy ways for Trump to finesse this situation in a way that spares him political damage.

Trump might well worry that this, unlike health care, is an issue that is already truly his own.  His campaign was organized around The Wall, and he could be forgiven for imagining that his credibility with his supporters is on the line.  If that is what he is thinking, however, then his critics have actually been too generous in their assessment of him as a political fool.

Even during the campaign, various Trump supporters were preparing the way for Trump to declare victory without actually building his wall.  He could have said that, now that he is president, he has seen that he can achieve his objectives by getting the Border Patrol to be more aggressive.  (Blame Obama for being too shy about law enforcement.)

Famously, Trump's supporters have said that they do not take his statements as literal truth.  Now that Trump and his people have said that the term "wire tapped" is not to be taken literally because it could mean a lot of surveillance-related things, we know that they are capable of walking back even the most specific blunders, no matter how silly it makes them look.

And even though Trump spent a lot of time during the campaign talking about the wall, his other big applause line was that he would put Hillary Clinton in jail.  None of his supporters seem to care that he was not serious about that.   ("Draining the swamp" is also long gone.)

In short, Trump is making himself look like a fool.  More importantly, he is doing this when it is absolutely unnecessary to do so.  Trump might believe that he has unlimited political capital -- and with most of his supporters, he might well be right -- but he does not, and it makes no sense for him to make this unforced political error.

It makes no sense, that is, unless he has drawn one of two conclusions: (1) Going through with building the wall will actually become popular with people who currently do not support it, or (2) He is willing to lose political popularity over this issue, because the substantive advantages of building a wall are worth it.  If he believes explanation #1, he is fooling himself.  If it is #2, he simply does not understand how border protection works.  (See also his travel bans.)  It could be both, and I am betting that it is.

The reason that this is all so odd is that Trump seemed to have figured out a way to glide through his presidency without actually doing anything important.  He has created such a distorted political atmosphere that he can, for example, both confirm and deny that a 2005 tax form was accurate, leaving everyone to wonder whether the "leak" of that shred of information was planted by the White House.

Watching the press chase every crazy thing coming from his Administration was turning out to be a seriously plausible survival strategy.  All Trump had to do was say something bizarre every time anything serious came up, and he could skate along to the next news cycle.

Would it matter that nothing ever happened under Trump's presidency?  Not really.  Trump could blame the Democrats, the Republicans (especially his chew toy, Paul Ryan), and pretty much anyone else for not getting it right.  More importantly, he would not have to put his name on anything that would be open to attack.

This is especially important because a White House does have to do some things that are going to be politically contentious.  The federal budget is a minefield, for example, and any president is going to take heat for the choices of winners and losers that his budget implies.  Trump's first budget proposal makes it obvious that he is not going to do anything to help his non-rich supporters, and he is actually proposing to make their lives worse.  (This is also true of the new health care bill.)

All of which means that a president who came into office with historically low approval ratings, and who still cannot accept his drubbing in the popular vote, needs to do everything he can to avoid self-inflicted wounds.

Again, is this because Trump actually has some core (terrible) beliefs that he is willing to pursue, no matter the consequences?  Or does it mean that he is a political masochist?

I always thought that his only core policy belief lined up with Republican orthodoxy: tax cuts for the rich and screw everyone else.  That he might actually care about anything other than that (and, of course, his own ego gratification) is surprising, and that he is willing to risk his own brand to pursue those goals is puzzling in the extreme.

Wednesday, March 15, 2017

Multi-Relevant Evidence in Criminal Cases

by Sherry F. Colb

In my column for this week, I discuss the case of Buck v. Davis, in which the Supreme Court, after cutting through a procedural morass, ruled that a capital defendant's attorney had been constitutionally ineffective under the Sixth Amendment when he introduced an expert witness who said that the defendant, though unlikely to be dangerous in the future, did have one characteristic (his race) that statistically correlated positively with future violence, a correlation that could have led the jury to sentence the defendant to death (as the jury was permitted to do only if it found that he was likely to be violent in the future).

In my column, I discuss the importance of race to this case, observing that ordinarily, if an expert witness has something helpful to say (i.e., that the client is not dangerous) and something harmful to say (i.e., that the client has a characteristic that correlates positively with dangerousness), it is acceptable practice for the attorney to decide it is worth introducing the expert witness's testimony, notwithstanding the harmful portions of that testimony.  In other words, evidence is generally not wrapped up nicely in a bow of purely helpful testimony that a defense attorney can choose to utilize without any downsides.  This is where strategy comes in, and a lawyer makes a judgment about whether the helpful aspects of the testimony do or do not outweigh the harm that it might do.  It was because the expert in Buck was feeding a virulent racial stereotype about violent black men that it made sense for the Court to find that the attorney who presented the expert was ineffective, having made an inexcusable judgment call, and that the error likely had an impact on the outcome of the case.

In this post, I want to observe that the phenomenon of the "mixed bag" in evidence is hardly unique to the context of an attorney deciding whether to introduce an expert witness.  As I teach my students in Evidence class, even though the various rules of evidence tend to offer bases for excluding rather than for admitting evidence, most of the rules prohibit inferences rather than evidence.  This means that a typical rule will not say that all evidence (of liability insurance, for example) is inadmissible but will say instead that such evidence may not be offered to support a prohibited inference (of negligence, for instance).  To the extent that the evidence is relevant only to prove the point on which it is inadmissible, the evidence stays out.

However, in the many circumstances in which the evidence is relevant both on an impermissible point and on a permissible one, there is a good chance that a judge will choose to overrule an objection to the evidence and admit it subject to a limiting instruction telling the jury that it may not rely on the evidence to prove the impermissible point but may use it only as proof of the permissible conclusion.  This process resembles the efforts of a defense attorney to capitalize on the helpful testimony of an expert and encourage the jury to focus on that rather than on the harmful aspects of the testimony.

Unfortunately, it is rare to have evidence that is pure and relevant only on a point on which it is admissible.  More commonly, evidence will have multiple relevances.  For example, a criminal defendant's prior conviction for grand larceny is relevant both to prove that he is less trustworthy as a witness than he would otherwise be (credibility) and that he is more likely to have committed the robbery of which he is charged than he would be in the absence of this evidence (guilt).  The prior conviction is admissible, however, only on the issue of credibility, not as proof of the defendant's guilt.  The compromise that the rules of evidence often provide is that the conviction may come in subject to a limiting instruction telling the jury not to use the conviction as proof of guilt but only as proof of (the lack of) credibility.

It turns out, based on empirical studies, that jurors have a very difficult time limiting their consideration of evidence to the purposes for which they have been instructed to consider it. Especially if evidence is highly relevant to something for which it is inadmissible, jurors will tend to pay attention to it (and perhaps pay even greater attention when they have heard a limiting instruction telling them not to draw the impermissible inference).  Like the jurors who heard from the expert both that the defendant in Buck was not dangerous and that his race statistically correlated with future danger, jurors hearing evidence with multiple relevances will likely attend to everything, not just to the part that is permissible/helpful.

For the law of evidence, this is where the important job of Federal Rule 403 comes into play.  Under Rule 403, if the probative value of evidence is substantially outweighed by its tendency to cause unfair prejudice (or other problems, such as juror confusion), the evidence may be excluded altogether, despite its relevance to a point on which it is admissible. Through Rule 403 (and its analogues in various rules that modify which way the balance cuts), it becomes possible to take into account the reality that juries--at least sometimes--cannot follow the limiting instructions that they receive and that the best course may be to keep out the evidence altogether.  For the evidence of racially-correlated dangerousness, this too would almost certainly have been the right call.