Tuesday, June 27, 2017

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

by Michael Dorf
(cross-posted on Take Care)

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

Here's My Travel Ban Cert Grant Column

by Michael Dorf

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

Monday, June 26, 2017

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

By Eric Segall

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

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

Emoluments and Justiciability

by Zachary Clopton

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

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

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

Saturday, June 24, 2017

Members of Congress Have Standing in the Emoluments Suit

By Eric Segall

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

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

Friday, June 23, 2017

Redistricting and Blue Cities

by Neil H. Buchanan

Can anything be done to make congressional and state legislative races more competitive?  The Supreme Court has taken on a case from Wisconsin that could meaningfully limit partisan gerrymandering.  Depending on Justice Kennedy's vote, that case could change the way districts are drawn, which in turn could radically alter the results of American elections.

I will surely have more to say about that case in future columns, especially the proposed formula for identifying impermissible partisanship that the plaintiffs would like the Supreme Court to endorse.  Before going there, however, it is first worth asking whether gerrymandering is as important as people like me think it is.

After all, if Republicans' recent lock on the House of Representatives and state legislatures is not a result of gerrymandering (and voter suppression, which is obviously the key part of Republicans' strategy), an awful lot of effort on Democrats' part is going to be misdirected.

Thursday, June 22, 2017

The Slants, Government Speech, and Elane Photography

by Michael Dorf
(cross-posted on Take Care)

The most important immediate impact of Monday's SCOTUS ruling in Matal v. Tam is that the Washington Redskins will be able to enjoy registered trademark protection, notwithstanding the offensiveness of their name. In invalidating the provision of federal trademark law that denied federal registration for any mark that would “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead,” neither Justice Alito's majority/plurality opinion nor Justice Kennedy's concurrence/concurrence in the judgment (joined by Justices Ginsburg, Sotomayor, and Kagan) relied on the fact that the respondent used the name "The Slants" ironically so as to "take it back." Thus the holding also applies to offensive trademarks that are used unironically, like the Washington Redskins, Chief Wahoo of the Cleveland Indians, and Trump Tower.

Meanwhile, a portion of Justice Alito's opinion that speaks for the full Court devotes substantial space to rejecting the argument that trademark registration is a form of "government speech." As Marty Lederman notes in a post on Balkinization, this part of the opinion addresses a straw man insofar as it contends that a trademark itself is not government speech; nobody said otherwise. But I do think that Justice Alito rightly understood that the asserted government interest in not wanting to be perceived as endorsing offensive trademarks by registering them is more or less the same interest that the government asserts in cases in which government speech is directly at issue.

Wednesday, June 21, 2017

The Case for Driverless Cars Just Became A Bit Easier to Make

by Neil H. Buchanan

Many people feel uncomfortable with the notion of driverless cars, and I certainly understand why.  How weird would it be to sit in a vehicle alone (not even with a humanoid robot in a driver's seat) and have that vehicle drive off at 35, 55, or even 70 miles an hour?

Is that too scary for people to accept?  Is it scarier than the fact that people driving cars are killing 40,000 Americans per year?  Is is scary that vehicles can be used deliberately to kill?

That, as I will discuss momentarily, is the new wrinkle to the story.  Will terrorists inadvertently move public opinion in favor of driverless cars?

Tuesday, June 20, 2017

Charles Camosy's Response to My Review of Beyond The Abortion Wars

By Sherry F. Colb

In Horizons, a journal published by Cambridge University Press, I have a review of Charles Camosy's book, Beyond the Abortion Wars: A Way Forward For a New Generation. After the various reviews of his book, Professor Camosy provides responses to each one. Because I think his response to my review inaccurately represents my review, I wanted to take the opportunity here to reply to his response.

Just so that readers have some idea of what this is all about, Camosy's book proposes that we can get beyond debates about abortion if we incorporate the majority's view of the procedure: prohibit most abortions but allow some, including those necessary to save a woman's life and those where the pregnancy has resulted from rape, the latter of which would be allowed if the abortion is a failure-to-aid termination (such as a medical abortion) rather than an abortion involving direct violence to the fetus. He also proposes greater government financial and other support for pregnant women and mothers, a proposal that I applaud. There is more to it, of course, but this is a rough overview.

In my review, I discuss the sentience criterion for moral consideration, an idea Michael Dorf and I develop more extensively in Beating Hearts: Abortion and Animal Rights, where we suggest that abortions taking place after fetal sentience are morally problematic in a way that pre-sentience abortions are not. With this setup, here is my response to Camosy's review.

Monday, June 19, 2017

SCOTUS Severely Narrows Civil Rights Suits Against Federal Officers

by Michael Dorf

Today's ruling in Ziglar v. Abbasi makes it all but impossible for civil rights plaintiffs to sue federal officials for money damages. After explaining why the ruling is extremely troubling, I will offer a partial solution.

Taking the Gloves off for Cameras in the Court

By Eric Segall

Last week in the L.A. Times (with support from Judge Posner and Justice Willett) and in Judicature (writing with Erwin Chemerinsky), I discussed the Supreme Court’s continued refusal to allow any video coverage of its proceedings. My tone in both pieces was reasonably measured (at least by my standards), and I had to leave out a few arguments because of space requirements. For this piece, the gloves come off, and I can be a bit more comprehensive. I also want to respond to the concern that we should ask the Justices to move slowly, maybe by starting with live audio, before they approve cameras. 

There is not a single good reason justifying the Court’s blackout of its already public oral arguments and decision announcements, while there are compelling reasons the Court should enter the 21st century. The benefits of allowing cameras include the following: 1) the generalized interest in more governmental transparency; 2) the democratic interest in allowing everyone to witness what a privileged few in the courtroom get to see; 3) the citizenship interest in providing moments when we can gather together and see historic governmental decisions being made (almost 20,000,000 people watched James Comey’s recent testimony); 4) the modern interest in engaging younger generations in the work of the Court in a way that is impossible through after-the-fact audio; 5) the historical interest in allowing museums to capture and display landmark arguments and decisions; 6) the educational interest in providing students and teachers of the law, and Americans in general, the opportunity to see heated disagreements over fundamental legal questions carried out with civility and respect; 7) the professional interest in allowing Supreme Court litigators to witness the Justices in action to better prepare them for their arguments; and 8) the societal interest in demystifying the role of the Justices and the nature of the Court’s proceedings.

I have previously explained all of these benefits in much more detail and won’t repeat those arguments here.

The arguments against cameras or live-streaming are based almost entirely on fear and speculation. Before I list those, however, it is important to note that all fifty states, other countries, and the U.S. Court of Appeals for the Ninth Circuit regularly show their arguments with no complaints. The Supreme Court of Texas has been webcasting for a decade. Forget the arguments about the O.J. Simpson trial and cameras. I am not arguing for trials to be on television. I am advocating for cameras at appellate arguments where there is no jury.

There are a few academics who continue to argue against cameras based on the fear that television or live streaming will change oral arguments for the worse. There is no evidence, however, this has been true at the fifty state supreme courts, the Ninth Circuit, or other countries but, of course, those arguments aren’t on C-Span or national television here in America. Nevertheless, the notion that either Supreme Court litigators or the Justices themselves will play to the cameras in a way that is injurious to the American people or the Court is wildly speculative if not fanciful.

Unlike members of Congress who obviously play to the cameras because they need to be re-elected, or they want their political party to look better, the Justices don’t have the worry of elections, and they are unlikely to appear overly partisan on national television. 

          Any attorney who is seen by the Justices as performing for a television audience will feel the Justices' wrath quickly and sternly. In any event, should any of this come to pass and the arguments deteriorate significantly, the Justices can change their minds and prohibit cameras in the future . Shouldn’t we find out?

To the extent there is a worry about lawyer misbehavior specifically, none of these fears are relevant to the Court’s decision announcements after the end of April when there are no oral arguments and the Justices have complete control of the proceedings. This period is also when the Court’s most important decisions are handed down, and the American people would have the most interest in seeing the decisions announced.

The Justices and others opposed to cameras have also made the following arguments: 

1)   The public might place undue importance on the oral arguments as opposed to the briefs and final written opinions;
2)   Cameras might make it more likely that the Justices will be the victims of violence;
3)   Snippets and sound bites of the arguments might be taken out of context by the media; and
4)   The Justices might be ridiculed by late night comedians or mock news shows.

I have documented these objections and responded to them at length in numerous places before. My most academic treatment is here, and Erwin and I also examined them in our Judicature essay. In brief:

1)   The possibility that the public might not understand the role of oral arguments is no reason to deny them the chance to view them, and the Justices could easily explain the role of the arguments in many different fora.
2)   There is no evidence that cameras present a security risk to the Justices. In this day and age, when information on all the Justices as well as their images, are publicly available on the internet, and many of them go on television either to sell books or simply discuss their jobs, it is most unlikely that cameras in the courtroom will lead to a substantial increased risk of violence.
3)   All government officials--indeed, all people--when they speak in public, risk having their statements taken out of context through misleading soundbites. Those concerns do not justify a media blackout in other contexts or in this one. Moreover, the Justices run this risk now and, if there is a dispute about something that is said or happens in the courtroom, visual evidence could only help get to the truth.
4)   Being mocked by comedians or late night mock news shows is simply part of the job.

The benefits set forth above easily outweigh the hypothetical fears. Moreover, if cameras do end up having pernicious effects that outweigh the educational, democratic, and historical benefits of cameras, the Justices are free to change their minds.

I want to end by responding to an argument that Jerry Goldman, Emeritus Director of OYEZ, made to me in a series of emails. Jerry is ultimately in favor of cameras in the Court but feels it will only happen “brick by brick.” He wrote that courts “like to take small steps and follow well-worn paths.” The “easier case” Jerry argued, is to argue for live audio feed which “would move the ball closer to the goal of video in the courtroom.” Jerry finished his admonition to me not to “clobber” the Court by noting that the slow approach was adopted by Justice Ginsburg for gender equality, the NAACP for Jim Crow, and Justice Kennedy for gay rights. He didn’t think we should push for “one giant leap.”

I understand and sympathize with these arguments, especially as I made similar ones publicly in the same-sex marriage cases--urging the Court to decide Windsor but wait a few years before deciding the validity of state same-sex marriage laws--and I have argued that Roe v. Wade was too much too fast. But the issue of cameras in Court is different. There will be no backlash, except maybe from the Justices, to allowing cameras in the Court, and unlike the examples provide by Jerry, we have years and years of experience with cameras in courtrooms, including the highest courts of the land in Canada, Brazil, and the UK, We don’t need to take baby steps to figure out if this is a good idea because it has already been done. The fights for same-sex marriage, gender equality, and desegregation in the South are not remotely similar.

In 2017, with a showdown between the President and the Court brewing, and abundant evidence that the American people want to watch their government on television, allowing cameras in the Court should be an easy decision for the Justices to make. There is no reason to wait any longer. The Court should permit cameras in their already open proceedings as fast as C-Span can put them there.

Friday, June 16, 2017

Opposition With and Without Impeachment

by Neil H. Buchanan

We cannot know how much additional damaging information about Donald Trump and his people will emerge, adding to the already overwhelming case for removing him from office.  And we certainly do not know whether that new information will be bad enough to send some Republicans into the impeach-convict-remove camp.

It is notable that a former Republican congressman, Bob Inglis of South Carolina, who was a prime mover in the Clinton impeachment, recently wrote that the charges against Trump are more serious than the Republicans' case against Bill Clinton.

Inglis also offered an explanation as to why the Republicans are not (yet) rebelling against Trump: They are too cowed by the right-wing echo chamber.  Or, as Inglis put it more pointedly: "The difference, now, is the presence of sycophantic media."  That certainly captures what is going on.

In any case, we know that Trump's own statements -- whether or not one believes James Comey's compelling testimony or thinks that Jefferson Sessions was lying to his former Senate colleagues -- already make an easy case for impeachment.  Beyond Inglis's explanation, why has this not been enough to move at least a few Republicans away from Trump?

Thursday, June 15, 2017

Trump Emoluments Argument Mirrors His "Just a Hope" Comey Defense

by Michael Dorf

(cross-posted on Take Care)

The last week saw important developments with respect to Donald Trump's ongoing confrontation with the Constitution's Foreign Emoluments Clause. First, the Department of Justice (DOJ) filed a motion to dismiss the lawsuit brought by Citizens for Responsibility and Ethics in Washington (CREW) and others against President Trump. The government argues in its supporting memorandum that the plaintiffs lack standing because they have not been injured and that even if they have been injured, they are not within the zone of interest protected by the Emoluments Clause. In prior essays, I have argued that under the existing precedents, CREW has standing and so do the additional plaintiffs alleging that Trump's violation of the Emoluments Clauses redirects business away from them or their employers and thus injures them. The government's arguments for dismissal do not persuade me otherwise.

But even if the government's argument against standing by CREW and the competitor plaintiffs were persuasive, two new lawsuits filed this week--one by the State of Maryland and the District of Columbia, the other (initially) by 30 Senators and 166 Representatives--would make apparent the true nature of the DOJ argument on standing. (As noted here, the MD/DC lawsuit relies on the domestic Emoluments Clause as well as the foreign Emoluments Clause but for simplicity, I'll focus mostly on the foreign one.)

If, as we can expect, the DOJ argues that there is no standing in the new suits, then it will be clear that the DOJ believes that nobody can sue to enforce the Emoluments Clause, even to contest blatant violations. In other words, DOJ will essentially be taking the position that the Emoluments Clause is non-justiciable. Indeed, without expressly invoking the political question doctrine, the DOJ strongly hints at that position in the memo in support of the motion to dismiss in CREW, stating that "Congress is far better equipped than the courts to address whether particular arrangements violate the Clause."

Yet as Richard Primus noted last week, deeming the Emoluments Clause non-justiciable would be directly contrary to its text, which forbids the president from receiving foreign Emoluments unless Congress consents to them. The DOJ's approach would allow the president to receive foreign Emoluments unless Congress disapproves of them--perhaps even requiring Congress to do so by a 2/3 majority in each house, in order to overcome a likely presidential veto. That reversal of the default rule would strip Congress of its power rather than protect it.

So much for threshold questions of justiciability. What about the merits? Here the DOJ has offered a superficially appealing argument that, upon inspection, proves no more substantial than a Trump tweet.

Wednesday, June 14, 2017

Equal Protection and Leveling Down as Schadenfreude

by Michael Dorf

My Verdict column this week explores Monday's Supreme Court ruling in Sessions v. Morales-Santana, in which the Court invalidated a federal statutory provision that confers citizenship on children born outside the U.S. to unwed U.S.-citizen mothers in some circumstances in which such citizenship is denied to children born outside the U.S. to unwed U.S.-citizen fathers. Among other things, my column explores the potential implications of the case for the Travel Ban litigation. Here I want to focus some attention on the Court's remedy and how Justices Thomas and Alito approached the case.

As I note in my column, an equal protection violation can be remedied either by leveling up (everyone gets the benefit) or leveling down (no one does). The leading case is Heckler v. Mathews. Justice Ginsburg's majority opinion in Morales-Santana parses what I call Congress's "fallback" intent to conclude that the right remedy (absent further congressional intervention) is leveling down. On Take Care, Ian Samuel argues that this "mean remedy" could harm people who thought they were U.S. citizens. Yet the Court says that its holding applies only "prospectively." Not good enough, Samuel complains, because, he says, the Court does not explain what "prospectively" means. I agree that Justice Ginsburg's opinion could have been clearer but she approvingly cites the Solicitor General's merits brief and reply brief on this point. The SG's argument at the relevant pages really only makes sense on the assumption that "prospective" application means application to children born abroad to U.S.-citizen mothers after the date of the Court's opinion--unless and until Congress changes the law.

Because Samuel reads the opinion as harsher than I believe it is, he ends up preferring the approach--at least in practical effect--of Justices Thomas and Alito. Yet, as I shall explain, I do not think that their approach is possible without overruling Heckler v. Mathews.

Tuesday, June 13, 2017

Naive, Stupid, Evil, Trump

by Neil H. Buchanan

Donald Trump is wrong almost all of the time about almost everything.  He lies constantly, and even though he is constantly being caught in his transparent lies, he never admits error, pressing ever forward on his destructive path.

Does he do this because he knows nothing about the world?  (That is, is he naive?)  Alternatively, maybe it is because he is incapable of logical thinking.  (Is he stupid?)  Or is it instead because he has horrible policy goals?  (Is he evil?)

All three of those explanations fit, and then some.  As Michael Dorf argued in a recent column, normal human beings can be "evil, stupid, or ignorant," but "Trump is not a normal human being. He is not even a normal but evil, stupid, or ignorant human being. Trump is Trump."

In order to understand how Trump is different, we first need to understand what it means to be normal yet wrong in one of those three ways -- naive, stupid, or evil.  Because those three categories should be sufficient to explain every bad decision, it is important to understand how Trump is a category unto himself.

Monday, June 12, 2017

What Is It Like To Be Donald Trump?

by Michael Dorf

Last week in this space I took issue with the hypothesis that President Trump's early-morning tweets about the Travel Ban were intended to sabotage the Justice Department's legal defense of the policy or otherwise intended to serve any rational purpose. I suggested that there is a much more straightforward and thus much more likely explanation of Trump's tweeting: he "is an ignorant racist with no impulse control." The tweets simply vent. Any good they might do him--e.g., by firing up his base or by distracting the media from more damaging and/or substantive stories--is coincidental.

Today I want to address a related question: Does it even make sense to try to figure out what is happening inside Trump's head? I will frame the discussion with reference to a justly famous work in the philosophy of mind: Thomas Nagel's 1974 essay What Is It Like To Be A Bat?

Saturday, June 10, 2017

The seductive allure of anti-scientific conspiracy theories among otherwise rational people

By William Hausdorff

The rejection of climate change science

Many political observers linked President Trump’s decision to pull the US out of the Paris global warming agreement to his own psychology. The French newspaper Le Monde considered it a manifestation of his “rĂ©gression infantile.”  The Washington Post characterized the rationale Trump gave—the rest of the world is using the treaty to take advantage of the US—as a “visceral expression” of his own personal dog-eat-dog world view.  Such a psychological interpretation is attractive because there is little alternative: Trump seems unwilling and frankly, mentally incapable of decision-making based on understanding even slightly complex issues.

Unfortunately, the focus on Trump’s deranged psychology effectively portrays him as “the decider-in-chief.”  Yet, like most other decisions he makes, this was not an outlier activity of our disturbed President making policy decisions in his bathrobe in front of his TV.  

As noted by our own Professor Dorf, withdrawal from the agreement is precisely what the Republican party as a whole has been demanding One needs to look no further than the cheering and giddiness of VP Pence, Speaker of the House Ryan, and Senate Majority Leader McConnell the day Trump announced his decision. Put another way, if the Republican Party were against this, it would have never happened.  

Friday, June 09, 2017

What Did We Really Expect? (aka Comey Post-Mortem)

by Neil H. Buchanan

In the aftermath of former FBI Director James Comey's dramatic, sworn testimony before the Senate Intelligence Committee this week, it is clear that the Republicans are not yet ready to void their deal with the devil.  Republican senators on the committee went to embarrassing lengths to defend Trump, and the rest of the party seems perfectly content to let Trump try to declare victory and walk away.

This raises a question that we can address from at least two different angles:  What did we really expect?  That is, what did we think would happen at the hearing?  More broadly, for those of us who are not at all surprised that Trump has proved himself unfit for office again and again, what have we been expecting for the last six months, or even two years?  When we expressed fears about Trump being president, is this even close to what we thought would be happening?

If Meeting With Trump, Wear a Wire

by Michael Dorf

Prof. Buchanan will have the official DoL Comey post-mortem in a few hours. Meanwhile, I'll just raise an issue that occurred to me when Comey was testifying yesterday. I thought: "You were the FBI Director. You had access to all sorts of gadgets. After your first uncomfortable meeting with Trump, why didn't you wear a wire in person and record your phone conversations with him?"

Thursday, June 08, 2017

Climate Denialism Meets False Equivalence

by Neil H. Buchanan

[Note to Dorf on Law readers: Yes, we are aware that today is "Comey Day."  Before James Comey's star turn this morning, Professor Dorf posted a short piece in which he analyzed a few key elements of the story thus far.  I plan to write a full piece tomorrow morning (Friday the 9th) in which I'll analyze aspects of Comey's testimony and the response thereto.  Here, however, I offer a column that is not about Comey at all.  It is, however, devoted to the arguably important question of whether life on the planet will be permanently altered by conservative politicians' insistence on denying the evidence of human-induced climate change.]

Earlier this week, The New York Times published an excellent example of journalistic political analysis, "How G.O.P. Leaders Came to View Climate Change as Fake Science", by Coral Davenport and Eric Lipton, the former of whom writes frequently about climate issues, while the latter is a political reporter.

Typically, when I write a column in response to a specific news item, I do so to spare readers the pain of reading the item for themselves.  (This is especially true when I write about the The Times's op-ed columnists, such as this column from last summer.)  Not today.  The Davenport-Lipton article is a truly good piece of reporting, deep and well researched, that advances our understanding of the politics driving a profoundly important issue.

The article's high quality, however, did not save it from being a prime example of the bane of modern political reporting: false equivalence.  Although The Times recently fired its public editor, who once flatly denied that false equivalence even exists, it appears that the newspaper is still driven by the ever-less-defensible idea that every article has to dole out blame to both Republicans and Democrats, no matter the underlying facts.

It was obvious what was afoot from the sub-headline accompanying the piece: "The [Republican] party’s fast journey from debating how to combat climate change to arguing against its existence is a story of big political money and Democratic hubris."  So the Democrats helped to bring this on themselves?  Color me skeptical.

"That Thing"

by Michael Dorf

Perhaps thinking to himself "Sessions might resign, Kushner might be demoted and so no longer blocking me, and then I can become Attorney General," lame-duck NJ Governor Chris Christie yesterday attempted to curry favor with President Trump by dismissing James Comey's written testimony about how Trump repeatedly sought "loyalty" from Comey as "normal New York City." As a longtime New Yorker, I can say that this is even less plausible an account of Trump's behavior than the "locker room talk" defense of Trump's Access Hollywood boasts of sexual assaults. No doubt there are some people in New York City who talk this way, but they are all mafia dons.

Wednesday, June 07, 2017

Legislation as Civil Disobedience

by Sherry F. Colb

My column for this week discusses a Texas bill currently under consideration that would, among other things, prohibit Dilation and Evacuation (or "D&E"), or what the bill calls "dismemberment abortion." D&E is the most common (and perhaps the safest) second-trimester abortion method, and it involves taking apart the fetus while it is still in the woman's uterus and then removing the parts, one by one, through the birth canal. Similar prohibitions have been struck down in other states, and because of the obvious burden that a prohibition on this method would impose (particularly given the illegality of D&X (dilation and extraction or intact dilation and evacuation) under the federal Partial-Birth Abortion Ban Act ("PBABA")), the Texas bill--if it passes--will likely meet the same fate. Yet Texas and other states continue to pass such laws. My column suggests that these laws function as speech rather than as true attempts to directly regulate behavior.

Monday, June 05, 2017

Trump Is Not Playing Ten-Dimensional Chess; He's Not Even Playing Checkers; He's Barely Playing Peekaboo

by Michael Dorf

[cross-posted on Take Care and Newsweek]

President Trump's latest tweetstorm regarding his It-Is-A-Travel-Ban-After-All was widely and correctly viewed by observers as potentially harmful to the effort by the Justice Department to defend the Ban by arguing that it's not a Ban. Indeed, the tweets were even more damaging to his case than generally acknowledged. Most of the discussion in the blogosphere has focused on Trump's use of the word "ban," but as I'll explain below, the real significance of the tweets is that they reaffirm that the Executive Order is a Muslim Ban.

I also want to explore the hypothesis--first floated by Jack Goldsmith in February under the title "Does Trump Want to Lose the EO Battle in Court?" and just now revived by Joseph Fishkin under the mirror image title "Does Trump Want to Win the Travel Ban Cases?"--that Trump is deliberately sabotaging the already weak case for sustaining the travel ban. I'll conclude that this is extremely unlikely. As they say in medical school, when you hear hoofbeats, think horses, not zebras. The most obvious explanation--Trump is an ignorant racist with no impulse control--should dominate more intricate theories.

Justice Kennedy's Constitution and Why We Need It Now More Than Ever

By Eric Segall

There has been internet speculation that Justice Anthony Kennedy might retire in June, giving President Trump another Supreme Court vacancy to fill. Some Court watchers even believed that Trump’s selection of Neil Gorsuch to replace Justice Scalia was partly motivated by the hope that the choice would convince Kennedy he could retire with the Court in good hands (because Gorsuch clerked for Kennedy). On Tuesday of last week, however, it was reported that Kennedy hired a law clerk for the 2018 Term, dampening the speculation just a bit. Nevertheless, Kennedy is eighty years old, and I too have been told by some folks who may be in a position to know that he is considering stepping down (no one associated with this Blog). Therefore, it might be a good time to review the career of our most senior (in terms of longevity), our most important (in terms of influence), and our most fiercely independent (in terms of jurisprudence), Justice.

Friday, June 02, 2017

Enough With the Liberal Guilt Already

by Neil H. Buchanan

The 2016 presidential election was almost seven months ago.  Why are liberals still so willing to blame themselves -- and especially each other -- for Trump's narrow victory in the Electoral College?

The narrative that will not die is that "real Americans" abandoned the disdainful, sneering Democrats.  Those coastal elites who say and think nasty things about non-latte-drinking regular folk got what was coming to them, we hear over and over again.

And it is not conservatives who are saying those things.  It is liberals themselves who are engaged in this orgy of self-doubt and intramural finger-pointing.

Wednesday, May 31, 2017

On Climate, Trump is a Mainstream Republican

by Michael Dorf

Leaks from the Trump White House indicate either that President Trump has decided to withdraw the United States from the Paris climate agreement or that he is nearing but still has not made a final decision. Many informed observers think it doesn't really matter. Even if Trump does not formally withdraw (either from the Paris accord or the entire UN framework), his Coal First environmental policy will ensure that the United States does not meet its targets under the Paris agreement anyway, with some environmentalists arguing that so long as the U.S. is going to miss its targets, the rest of the world is better off with the U.S. out of the agreement, so that our example does not water down the meaning of the commitment for other countries.

Debate over whether the world is better if we stay in or get out and the game-show-style interest that Trump (in typical Trumpian fashion) has generated regarding his BIG DECISION should not obscure two basic facts: (1) The Trump environmental policy is disastrous; and (2) when it comes to the environment and global warming especially, Trump is a mainstream Republican. The first point is obvious. Here I'll mostly elaborate the second one.

Protect Journalists From Hate Crimes

by Michael Dorf

My latest Verdict column discusses the First Amendment implications of the Montana special election. By electing a man who had just body-slammed a reporter for asking a question, did Montana  voters threaten freedom of the press? I explain that while of course there are no direct First Amendment issues raised by the incident (because a candidate for office is not a government actor and the First Amendment only restricts the government), all of our constitutional rights ultimately depend on social acceptance, and the incident--in combination with others, especially those connected to President Trump--thus poses a long-term danger for a free press.

Here I want to propose a relatively modest legal response to that danger: State and federal laws should be amended to provide for penalty enhancements when otherwise criminal conduct is directed at reporters on account of their attempts to ask questions or otherwise do their job.

Tuesday, May 30, 2017

Another Anti-Impeachment Talking Point Bites the Dust

by Neil H. Buchanan

Will Donald Trump be impeached?  It is still too early to tell, of course, but given the pace at which damaging disclosures are coming forth, no one should assume that it will not happen.

What we do know without question is that the Republicans in Congress would have impeached and voted to convict Barack Obama, Hillary Clinton, or any other Democrat for doing anything even close to what we now know -- from his own tweets and other statements -- that Donald Trump has done.

But that merely tells us that Republicans are in a bind.  Only a bit of one, however, because such shameless inconsistency only matters to people who have shame, which almost all of these Republicans have repeatedly shown that they lack.  Even those who are perfectly willing to apply different standards to presidents on the basis of partisanship, however, might have their limits.

So the question is: What might be enough to convince a House Republican to impeach, or a Republican senator to convict, Donald Trump?  One way to approach that question is to ask what should be enough to cause Republicans to abandon their current "nothing to see here, Democrats are sore losers" mantra.

Monday, May 29, 2017

Memorial Day

by Michael Dorf

On this Memorial Day, I remember and honor those who gave their lives in the service of our country. I'm taking the day off from blogging. If you're looking for something to read, I suggest this DoL "classic" from Memorial Day 2011. Re-reading it, I was struck by both how little has changed and how much has changed. We are still trying to extricate ourselves from largely counterproductive wars in the Middle East without leaving behind a still-worse situation. But whereas the contradictions in the Obama policy were mostly a product of conflicting sensible goals, the contradictions in the Trump approach (which hardly rises to the level of "policy") are, in addition, the nearly random product of Trump's ignorance and massive but fragile ego.

Friday, May 26, 2017

Trump and the Republicans Continue Their Attacks on Education

by Neil H. Buchanan

The release of the Trump Administration's proposed federal budget has been met with mockery and ridicule across the political spectrum.  All budgets are "dead on arrival," but Trump's budgets stands out for its dishonesty, incompetence, and inhumanity.

Even though most Republicans have been running away from Trump's budget (although they continue to support him in the face of evidence of impeachable offenses), this budget falls into the category of what Michael Dorf once described as "Trump as GOP on truth serum," where Trump is merely saying out loud what Republicans have not yet dared to say.

My initial reaction to Trump's budget, in fact, was that it fully explains why House Speaker Paul Ryan has continued to support a man whom Ryan so clearly despises.  Ryan has spent his career trying to look concerned while crafting reverse-Robin Hood policies.  Trump's budget proposal will allow Ryan to look comparatively humane while implementing a deeply inhumane series of cuts to crucial lifelines for the middle class and poor people, all in the name of shoveling money toward the rich.

One area that deserves special attention is the approach that Trump and the Republicans have taken to financing college and post-college education.  Their proposals are especially damaging at a time when higher education is more essential than ever for upward mobility -- and even simply to prevent downward mobility.

Thursday, May 25, 2017

Should Democrats Kiss Trump’s Ring?

by Michael Dorf

The scene of the lavish reception that greeted President Trump in Saudi Arabia was arresting to say the least. The Saudi royal family (literally) rolled out the red carpet, treating Muslim-bashing Trump as a hero. While the speech Trump thereupon delivered was no doubt written for him before Air Force One touched down in Riyadh, anticipation of a royal welcome could well have been a factor in what went into it. Meanwhile, by kissing up to Trump, the Saudis appear to have scored a double victory on substantive matters: Trump has tilted US foreign policy decisively in favor of the Sunni side of the regional cold/hot war between Sunni and Shia forces; and Trump more or less endorsed the view of the Gulf states with respect to the Israel/Palestine conflict.

This is not the first abrupt foreign policy about-face by Trump. A cordial meeting with Xi Jinping instantly turned China from a currency manipulating hostile power into a strategic partner. It appears that foreign leaders have figured out that by swallowing their pride and flattering Trump, they can obtain major foreign policy concessions.

That phenomenon in turn raises a question for Democrats who would like to see Trump moderate his stance on domestic issues: Should Chuck Schumer, Tom Perez, and other Democratic Party leaders debase themselves before Trump in the hope that a show of sycophancy would pay policy dividends? The short answer is no.

Wednesday, May 24, 2017

A More Civilized Sort Of Jury Nullification

by Sherry F. Colb

In my column for this week, I write about the topic of jury nullification, occasioned by an episode of RadioLab that begins with a woman who served on a jury discussing having been criminally penalized for telling her fellow jurors about their ability to acquit the defendant for any reason. I talk about some of the pros and cons of nullification and conclude that if one has a basic trust of government and its officials, one will tend to oppose jury nullification and favor leaving it up to prosecutors to exercise their discretion in a just and wise fashion.

Tuesday, May 23, 2017

Necessary Conditions for A Few Republicans to Be Courageous

by Neil H. Buchanan

Everyone is still trying to figure out what to make of the last two weeks of nonstop news about Donald Trump's unraveling presidency.  His trip abroad is generating a bit of news (including his curtsy to a Saudi ruler), but until he inevitably becomes unhinged by the rigors of travel and diplomacy, the rest of the world will have some time to digest the multitude of shocking revelations that led to the appointment of a special counsel to investigate the Trump/Russia mess.

The overarching question that has generated serious political commentary is whether and when any Republicans will turn against Trump.  Until that happens, he is in no danger of being forced from the White House.  Of course, even something short of Trump's removal from office is a win for sanity, both because nonstop drama will derail the Republicans' regressive policy agenda and because it will keep Trump's supporters on the defensive in the 2018 midterm elections.

Still, it is reasonable to wonder what exactly it will take to shake a few Republicans loose.  As it happens, this is a subspecies of a question that I have been asking for the past few years, which is when the Republicans' headlong rush into fact-free extremism will push enough people to oppose them.

Monday, May 22, 2017

Villains, Careerists, and Patriots: Thoughts on Kobach, Rosenstein, Comey, and McMaster

by Michael Dorf
(cross-posted on Take Care)

As a college student in the early to mid-1980s, I knew Kris Kobach because we were on the debate team together. I'm a couple of years older than Kobach, but he started debating as a freshman, so I had two full seasons to get to know him. I recall him as smart and genial. He was conservative but in what at the time struck me as a middle American country-club Republican sort of way. I did not hear from Kobach again until the mid to late 1990s, when he was a junior faculty member at the University of Missouri-Kansas City. He contacted me to talk about an academic paper he was working on. It was very much a scholarly rather than polemical exercise. We had a pleasant substantive exchange, which confirmed my earlier impression of Kobach.

Thus, I was very surprised when, a few years later, Kobach emerged on the national political scene as the evil genius behind many of the state-level efforts to crack down on undocumented immigrants. At first I thought there must be some mistake. Maybe this was a different Kris Kobach? Or maybe his views were being reported inaccurately in the press? But eventually I bowed to reality. Either I had been profoundly mistaken about Kobach all along or at some point he had transformed himself. Accordingly, I have no illusions that in his role as the Vice Chair of the Advisory Commission on Election Integrity Kobach will be anything but a champion of disenfranchising minority voters via Trumped up claims of voting fraud.

I relate the foregoing personal anecdote because it may bear on how to think about people with good intentions and reputations for integrity who take at-best questionable actions. When do their actions demonstrate that (as in Kobach's case) whatever they might have been in the past, they are now villains? When do their curious actions reveal them to be careerists? And when does the sacrifice of personal reputation serve a greater good? I'll explore these questions with regard to Rod Rosenstein, James Comey, and H.R. McMaster.

Saturday, May 20, 2017

Judges Speaking Out: Justice Alito and Religious Liberty

By Eric Segall

On at least three occasions over the last seven months Justice Samuel Alito has made public remarks about the appropriate role of religion in this country that, if made by a liberal Justice, would likely result in conservative outrage and calls for recusal the next time the Supreme Court hears a case regarding religious liberty (there is such a case on the docket this term). Despite these public comments by Alito, there has been a deafening silence by those who often complain when other Justices make such political statements.

Friday, May 19, 2017

Federal Courts Exam on Travel Ban, Presidential Immunity, Etc.

by Michael Dorf

Once again, it's that time of year when I post an exam. There are three questions. As always, creative answers are welcome in the comments, but I won't grade them. I apologize for the fact that despite my best efforts to concoct outlandish hypothetical examples based on real events, the actual real events are still more outlandish.

Thursday, May 18, 2017

Time for Careful Lying by Team Trump

by Neil H. Buchanan

Donald Trump lies.  He lies all the time.  He lies effortlessly.  He lies shamelessly.  He lies garishly and promiscuously.  Before, during, and after the 2016 presidential campaign, Trump has lied repeatedly.

Trump is unfazed that he has no facts to back up his lies, and he seems not to care about the fact-checks that repeatedly expose his statements to be lies.  He lies so much that newspapers and TV networks finally felt honor-bound to stop downplaying Trump's lies with niceties and euphemisms -- "not backed up by facts" and "not truthful" -- and simply started to call them lies.

Trump's team has generally been equally brazen in their lies.  Sean Spicer and Kellyanne Conway repeat and amplify Trump's lies, and they too are apparently unconcerned that their lies are obvious even to a child.  Reince Priebus bothers to repeat Trump's lies, for example, the lie about Trump's "electoral landslide," not caring that it was in fact the 44th largest margin of victory out of 56 presidential elections.

Most of all, Trump and his team have lied carelessly.  Under increasing pressure, however, we are starting to see the emergence of what can only be called careful lying.  Not that the careless lies will stop, of course, but it is important to guard against having become dulled by the obvious lying to the more clever lies that some of Trump's people are now deploying.

Wednesday, May 17, 2017

James Madison, James Comey, and our Constitutional Blind Spot

by Michael Dorf

In Federalist 51, James Madison wrote:
In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
Practitioners and scholars of constitutional law understandably focus their attention on those "auxiliary precautions." When Madison wrote the foregoing, the auxiliary precautions he had in mind comprised the constitutional system of checks and balances, in which "[a]mbition [is] made to counter ambition." Almost immediately after the ratification of the original Constitution (and in fulfillment of a promise by its supporters to its skeptics), the Bill of Rights was added as another auxiliary precaution against leadership by those who prove not to be "angels." And so we constitutional specialists spend our energy asking what powers the Constitution assigns to each branch and level of government, and what rights it grants to individuals.

The resulting questions are important in all times, especially now, but we must beware the tendency to pass too quickly over what Madison called "the primary control on the government": "the people." The debate among constitutional lawyers over the firing of James Comey illustrates this tendency. Those who argue that Trump had the formal power to fire Comey misunderstand the nature of the contrary argument that the firing was nonetheless a despicable or even impeachable act. That contrary argument is best understood as a Madisonian appeal to the people.

Tuesday, May 16, 2017

Is It Bad That Republicans Did Not Read Their Terrible Health Care Bill?

by Neil H. Buchanan

Although the story about Donald Trump's firing of James Comey as FBI Director rightly dominated last week's political discussion (and continues to do so, with unsettling new twists in the story emerging at least once a day), the Republicans' farcical effort to repeal the Affordable Care Act also continues to generate news.

In early May, Republicans in the House finally limped across the finish line with a new version of their noxious American Health Care Act, which some people call TrumpCare (although I prefer to call it TrumpRyanCare).  The political blowback has been appropriately fierce.  To my surprise, however, I have found myself -- in one very limited way -- sympathetic to some Republican congressmen who have subsequently been mocked unfairly.

Monday, May 15, 2017

The Ethnocentric Core of Anti-Immigrant Fervor

by Michael Dorf

A recent episode of This American Life focuses on two precursors to the Trump era: the unlikely 2014 primary success of David Brat in unseating Eric Cantor; and the 1992 and 1996 presidential campaigns of Pat Buchanan. Although Brat's run was not initially fueled by opposition to illegal immigration, that became its primary focus when GOP primary voters reacted more positively to that aspect of his platform than to any other. Meanwhile, Buchanan was Trump before Trump (albeit without Trump's gaudy showmanship, profound ignorance, and linguistic incompetence). The episode is worth a listen overall, but here I want to focus on one claim it highlights.

During the episode, Buchanan, right-wing radio talk show host Laura Ingraham, and others all express their opposition to a path to citizenship (or "amnesty" as they call it) in, among other ways, cold political terms. They oppose extending citizenship to undocumented immigrants because the new citizens will mostly vote for Democrats. Thus, it could be said, they're not anti-Latino; they're just pro-Republican. As I shall explain, this defense fails. Anti-immigrant fervor is ethnocentric at its core.

Saturday, May 13, 2017

Politics and Soccer: When the Rules of the Game Really Matter

By William Hausdorff

It is now well known from one of the most painful of all US Presidential elections that getting the most votes is not enough to determine the outcome—it depends on the local rules (i.e., the electoral college) as to how those votes are counted.  As this was also readily apparent in the equally painful 2000 election, when Bush Jr stumbled into office against Gore, it’s easy to assume the local rules thing is yet another US idiosyncrasy. 

It may therefore come as a surprise to realize that the local rules for interpreting vote counts made (almost) all the difference in several recent, also momentous, European elections.  In other words, each could easily have gone the other way but for the specific, seemingly mundane rules in place in each country.  It turns out that there are many ways, from an electoral point of view, to crack an egg.

Friday, May 12, 2017

Friendship and People Skills in a Social Media World

By Eric Segall

Mike has once again graciously allowed me to use this blog to write about something other than constitutional law or the Supreme Court (and who doesn't need a break from the news?). Today, I want to talk about friendship and people skills in the age of social media.

Should Democrats Want Trump to Stay in Office?

by Neil H. Buchanan

When the news broke about the firing of James Comey as FBI Director, I began to think about Donald Trump's impeachment or resignation.  Although both possibilities continued to be unlikely, I certainly thought that such questions would still be relevant -- even pressing -- by the time I wrote this column only three days later.

Indeed, it finally seemed possible to hold out real hope that Trump's unfortunate presidency might soon see its final days.  When the faux-centrist trio of John McCain, Lindsey Graham, and Susan Collins finally did something laudable and meaningful on Tuesday (voting with Senate Democrats to uphold one of President Obama's climate change regulations), one report referred to that surprising vote as evidence of "the Trump administration’s problems on Capitol Hill, where there are signs the president’s grip on his party is loosening."

So much for that.  There has been barely a peep of protest about the Comey firing from those three senators or from most of their party colleagues.  Republicans, with very few exceptions, have made it completely clear that they have no interest whatsoever in following in the patriotic footsteps of their Watergate-era predecessors.  Within less than a day, it was obvious that even this bombshell was not enough to cause mass defections among Republicans.

Thursday, May 11, 2017

Possible Remedies for Comey's Firing

by Michael Dorf

In response to the Tuesday Night Massacre, I wrote my latest Verdict column early. It's called What Employment Discrimination Law Teaches About the Comey Firing. My answer: (1) Although employment discrimination law does not of its own force apply to the Comey firing, broadly speaking it addresses the same topic, namely, when is a termination wrongful? (2) The fact that the FBI Director serves at the pleasure of the president does not insulate the firing from scrutiny, in the same way that employees at will have Title VII protection against being fired for bad reasons. (3) Even if Comey could have or should have been fired because he mishandled the Clinton email investigation, that does not excuse Trump's firing him for the affirmatively bad reason of attempting to suppress the investigation into collusion with Russia to affect the election.

That last point raises a further question that I do not address in the column: If Comey was doing a bad job but was fired for the wrong reason, what is the remedy? Here the Title VII analogy appears to run out. Title VII authorizes reinstatement as an equitable remedy for improper discharge, but reinstatement sometimes is unavailable. For example, if an employee and her supervisor have an irreconcilable personality conflict that arose as a result of the discrimination, reinstatement would be improper. In such circumstances, the court would order "front pay" (in addition to back pay) as a substitute for reinstatement.

But there is no possibility of damages of any kind for Comey, because Title VII doesn't apply. It's just an analogy. So what is the remedy?

Wednesday, May 10, 2017

"Stealthing" and Autonomy

By Sherry Colb

In my column for this week, I discuss the phenomenon of "stealthing," whereby a man engaged in sexual intercourse stealthily removes the condom he is wearing, with neither the knowledge nor the consent of his partner. I suggest in the column that this practice does not rise to the level of sexual assault because there is consent to sex, though the consent is not "informed."  I want to suggest here, however, that exposing a partner to the risk of pregnancy and sexual transmitted infections  ("STIs") represents a harm that goes beyond the usual case of deceiving one's partner to induce him or her to have sex.

Tuesday, May 09, 2017

Supposed Liberals Reunite for More Unfair Bashing of Hillary Clinton

by Neil H. Buchanan

[Note: This post was updated on 5/10/17 for clarity and to correct some editing errors.]

It was apparently too much to hope that Hillary Clinton would, in defeat, be treated with the respect that she was denied during the campaign -- or, more accurately, during her entire career.  What is more depressing is that even some of her most prominent supposed admirers still enjoy piling on when Clinton is being attacked.

When Clinton kept herself out of the public eye after the election, she was mocked for "wandering in the woods" and was the target of other smart-alecky criticisms from avowedly liberal comedians and commentators.  Now that she has broken her silence and made some public appearances, we are being reminded of the double standards and outright nastiness that has been aimed at Clinton for decades.

Last week, Clinton gave an extended interview to the journalist Christiane Amanpour at the 9th Annual Women for Women International Conference.  (A transcript is available here.)  It was predictable that Amanpour would ask about the election, and it was just as predictable that anything Clinton said on that subject would be featured in sound bites across the media landscape.

What I did not predict -- perhaps because, after all these years, I have still not given up hope that liberals will stop being so self-defeating -- is that Clinton would immediately be bashed by supposedly sympathetic commentators.

Monday, May 08, 2017

Trump Signing Statement Threatens the Continued Existence of Historically Black Colleges and Universities

by Michael Dorf

On Friday, President Trump signed a bill funding the federal government through the fall. Following a potentially troubling practice that gained attention under President George W. Bush (and continued under President Obama), Trump accompanied his signature with a signing statement that announced that his administration would "construe" various provisions in accordance with various constitutional limits. On its face, that is reassuring rather than troubling. A president is sworn to faithfully execute the law, and in the U.S., statutory provisions that contravene the Constitution are not law. Thus, few would object--indeed most everyone would laud--a president who declined to enforce or comply with a blatantly unconstitutional law.

The difficulty arises when the president, in a signing statement and thereafter in practice, asserts a power to disregard a statutory provision based on a tendentious constitutional understanding. That's what Bush did with respect to the so-called McCain Amendment barring torture. He asserted power not to comply with the interrogation limits based on an expansive and highly controversial understanding of executive power. When a president asserts a power either not to enforce or not to comply with a statute based on a highly idiosyncratic view of the Constitution, he threatens to undermine separation of powers. Rather than carrying out his duty to take care that the laws be faithfully executed, he violates that duty.

Like the Bush statement on torture, Trump's signing statement makes broad claims of the power to disregard the law, based on similarly tendentious views about the Constitution. Here I will focus on one such view: the suggestion that federal funding of capital improvements at historically black colleges and universities "allocate[s] benefits on the basis of race" and therefore runs afoul of "the requirement to afford equal protection of the laws under the Due Process Clause of the Constitution's Fifth Amendment." As I shall explain, the suggestion is wrong, but if it were right it would have far-reaching consequences for the HBCUs' very existence.

Friday, May 05, 2017

The Fall and Rise of Political Correctness

by Michael Dorf

Among the many apparent mysteries concerning the election of Donald Trump to the presidency is the matter of timing. That people experiencing economic hardship would turn to a racist demagogue is not entirely surprising. The surprise is that it happened in late 2016, when the U.S. economy had mostly recovered from the worst of the Great Recession, rather than in 2008 or 2012, when the economic picture was worse. The mystery is mostly solved when we take account of the unevenness of the economic recovery and the dislocations caused by long-running structural changes in the economy.

Mostly but not entirely solved because on top of Trump's seemingly odd economic timing we have Trump's odd rhetorical timing. Trump campaigned against "political correctness," a phenomenon that--judged by the following n-gram and my own subjective impression having lived through the relevant periods--began to decline in significance after peaking in the mid-1990s, roughly two decades before Trump launched his presidential campaign. (Google n-grams cut off in 2008 but the trend is evident.)

When libertarian conservatives (and unreconstructed liberals) complain about political correctness, they do so in the name of freedom of speech, but Trump--who treats the free press as "fake news" and the "enemy of the people" and wishes to "open up" libel laws--has little use for free speech. His complaints about political correctness were always code for resentment of the groups--racial, ethnic, sexual, and other minorities--that political correctness, not to mention simple decency, aims to protect. Coupling his denunciation of political correctness with acting out the bigotries that political correctness and common decency condemn, Trump's seemingly decades-off timing enabled him to marry his economic nationalism to an ugly ethnocentric nationalism.

Thursday, May 04, 2017

The Failing New York Times Decides to Fail In a Much Worse Way

by Neil H. Buchanan

The election of 2016 was a frightening year for people and institutions across the world.  In the U.S., it was an especially troubling year for the press, as the nation's news providers found themselves under attack by a shameless demagogue who turned hatred of the mainstream media into an active campaign tactic.

What was especially worrisome, as reporters and commentators alike noted throughout the primaries and general election, was how Trump had used the press's laziness and self-ambivalence to his own advantage.  He provided spectacle, and the press ate it up.  He lied (and lied and lied), and the norms of American journalism seemed to force major papers to give him more than the benefit of the doubt.

Both before and after his non-majority win, Trump directly threatened the press with talk of "opening up the libel laws," all the while knowing that even the elite press would give him interviews on his own terms.

Confronted with a new, hostile president, what has the press done?  On the plus side, the word "lie" is no longer a rare noun in press coverage.  On the minus side, there is still far too much faux-balanced reporting, soft-focus features, and efforts to prove that the press is not really the liberal bastion that Trump and the Republicans say it is.

We need look no further than The New York Times, which on many days seems to have decided to move in exactly the wrong direction on almost every front.  From running kid-glove features on the Administration to hiring a climate change muddler on the op-ed page, the paper is responding to Trump not by becoming tougher but by trying to "understand" the Trump phenomenon, as if journalism were some kind of national group therapy.

Wednesday, May 03, 2017

How to Survive the Next 100 days: Ten Easy Survival Tips

By William Hausdorff and Eric Segall

President Donald Trump (three words that in a sane world would be the dictionary example of an oxymoron) just completed his first 100 days in office. Social media writers have poured forth summaries, takes, and opinions about this surreal stretch of mismanagement and incompetence (with a new Verdict essay by Mike Dorf focusing on legal incompetence). Rather than look backward, however, we felt it might be helpful to provide hints for how to survive (better) the next 100 days. We should note at the outset that this is no easy assignment.

Tuesday, May 02, 2017

Beware the Coming "Trump Isn't So Bad" Narrative: Take 2

by Neil H. Buchanan

There is a rather large difference between the two following, very similar-sounding statements:

"Trump is not turning out to be so bad, right?"

"Trump has not been as bad as he might have been, I guess."

The most important difference between the two is that the former expresses some measure of optimism -- guarded optimism measured against well warranted pessimism, to be sure, but still optimism -- while the latter expresses a sense of relief without imagining that the big picture has improved.

Count me in the second group.  The first group is not merely misreading the situation, but they are affirmatively worsening it by encouraging everyone to ignore evidence and instead simply to hope for the best.  It is OK, they suggest, to let our guards down, because Trump is not the danger we thought he was.  As Trump would say: Wrong!

Monday, May 01, 2017

Beware the Coming "Trump Isn't So Bad" Narrative

by Michael Dorf

The non-FoxNews non-Breitbart assessments of the first hundred days of the Trump administration were pretty uniformly negative. Search news stories for "100 days of failure" and you'll get your pick, all with roughly the same headline: The Guardian, Vanity Fair, the ACLU and CNN. Not that these reports won't be dismissed by Trump himself. Close your eyes and you can see him tweeting in response that this is all just the kind of fake news you'd expect from the failing fill-in-the-blank.

Trump need not even dismiss all of the negative assessments, because within them he can find a silver lining. (Or perhaps make that a gold lining, as our president prefers that his precious metal match his hair.) The CNN piece--an opinion essay by Princeton history and public affairs professor Julian Zelizer--comes with a question mark in the title: "100 days of failure for Trump?" Having written some of my own essays for the failing CNN (as well as the failing Newsweek, not to mention the failing Dorf on Law), I know that editors customarily write headlines without consulting the author, so it's possible that either as a tease or in the interest of a false objectivity, the CNN editors inserted the question mark on their own.

That itself would be significant, however, because it would show that CNN editorial policy regards it as an open question whether Trump's first hundred days are a failure. It isn't an open question -- unless you're a cockroach thinking that by bringing us closer to a nuclear or environmental apocalypse, Trump may be hastening the end of mammalian life on Earth and ushering in the Planet of the Roaches.

Zelizer himself is ambivalent. After cataloguing Trump's failures, he remarks that maybe they "are not as devastating as some might think." Why not? Because people like Zelizer have stopped talking about Trump and his family's conflicts of interest! With most media coverage now focused instead on such matters as Trump's next moves on North Korea, taxes, and infrastructure, Trump has been "normalized" as president, Zelizer writes, thereby fulfilling his own prophesy by contributing to Trump's normalization.

Zelizer is not the only member of the commentariat to write what I expect will be a wave of stories and op-eds about how Trump is becoming a normal president or otherwise downplaying his failures. Expect much more of this in the coming months and years.