Friday, June 30, 2017

Why Does it Matter That America Is Now a Villain?

by Neil H. Buchanan

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

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

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

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

Thursday, June 29, 2017

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

By Eric Segall

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

Wednesday, June 28, 2017

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

by Michael Dorf

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

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

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

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

Tuesday, June 27, 2017

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

by Michael Dorf
(cross-posted on Take Care)

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

Here's My Travel Ban Cert Grant Column

by Michael Dorf

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

Monday, June 26, 2017

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

By Eric Segall

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

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

Emoluments and Justiciability

by Zachary Clopton

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

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

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

Saturday, June 24, 2017

Members of Congress Have Standing in the Emoluments Suit

By Eric Segall

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

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

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.