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.
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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.