The Pardon Power is a Bug, Not a Feature

by Michael Dorf

When the news broke yesterday that former Trump campaign chairman Paul Manafort and his business partner Rick Gates had been indicted, speculation almost immediately turned to the question whether Manafort and Gates--and/or George Papadopoulos, another Trump advisor--would offer dirt on Trump in exchange for leniency. Trump channeler/potty-mouthed newly-former Twitterer Roger Stone and Trump lawyer Ty "Not that Ty Cobb" Cobb tried to throw cold water on the idea, saying that Manafort has no damaging information to share about Trump.

Maybe not, but the fact that Stone and Cobb say something is--how to put this?--not exactly irrefutable evidence of that something. Certainly the concerted efforts of Trumpologists to discredit special counsel Robert Mueller as biased because he is a professional acquaintance of fired FBI Director James Comey suggests that Trumpworld is not simply counting on the truth. Rather, the efforts to paint the longtime Republican with a reputation for integrity as a Democratic hack bespeaks at least the possibility of a backup plan in which Trump either fires Mueller (perhaps by first firing Jeff Sessions, then firing Rod Rosenstein, and then naming an acting Attorney General to do the deed) or promises Manafort and others in Mueller's cross-hairs pardons if they don't snitch.

Only the fear of political blowback stands in the way of Trump firing Mueller, but it didn't have to be that way. Had Congress not allowed the independent counsel provision upheld in 1988 in Morrison v. Olson to sunset in the wake of Kenneth Starr's pursuit of Bill Clinton, we would have on the books protections for the special prosecutor against being fired by the president based on the latter's simple unhappiness with the direction of an investigation.

But the pardon power appears to be something different entirely. Even if we still had a law insulating the independent counsel against being fired by the president, the pardon power would be available as a means of frustrating an investigation. And that is a bug, not a feature, of our Constitution.

Are NeverTrump Conservatives Better Than Anti-Trump Republicans?

by Neil H. Buchanan

Is there common ground between American liberals and some subset of the people who identify themselves as conservatives?  That is, are there meaningful issues on which -- were it not for the existence of a malignant narcissist in the White House -- something resembling middle-of-the-road reasonableness might prevail?

Sadly, we know the answer to this question when it comes to elected Republicans.  In my two most recent columns, I explained that there are no "moderate" Republicans in public office (and certainly not in the U.S. Senate, which is where America's most clueless pundits are sure that moderate Republicans most assuredly can be found), and I also argued that there are not even any "principled" or "reasonable" Republican officeholders, much less moderate ones.

It is true that a tiny number of Senate Republicans have recently taken a stand against the way Donald Trump conducts himself as president, which is a good thing and courageous in its way.  My point in my recent columns, however, was that a Trump-less Republican Party is still a party of policy extremists.  They might not approve of attacking the widows of fallen soldiers, but they are fine with (for example) taking health care coverage away from tens of millions of vulnerable Americans.

In those columns, however, I was discussing only conservatives who currently hold national office.  What about the right-leaning pundits?  Are there conservative commentators who might represent something other than the Ryan-Pence-McConnell version of enthusiastic water-carrying for the wealthy (while also doing the bidding of religious fundamentalists)?

Put differently, do the self-identified conservatives who are not worried about running for office, and who spend their time writing and talking about policy, and who have loudly and definitively rejected Trump, hold out the possibility of finding areas of policy agreement with liberals and Democrats?  The evidence is mixed at best.

The Trump DOJ's Puzzlingly Blasé View About Abortion Timing

by Michael Dorf

Acting before the Department of Justice could seek an emergency stay from the Supreme Court, an undocumented minor known in court papers as Jane Doe received an abortion just a day after the en banc US Court of Appeals for the DC Circuit ruled that the federal government could not continue to block her from doing so. Judge Millett's concurring opinion provides the chief rationale for the ruling, which was an otherwise unexplained per curium order. It is a remarkably thorough opinion, given the tight time constraints.

In a Verdict column next week, I intend to discuss one of the arguments that the government offered in its opposition to en banc review: the notion that permitting Doe to receive an abortion, even at private expense, would make the government complicit in the abortion, which the Trump administration opposes on moral grounds. I shall explain that while this is an unprecedentedly extreme view of complicity, it is the next logical step in a ratcheting up of complicity claims in recent years, first in religion cases and lately in speech cases. Spoiler alert: I disapprove of this trend.

Here I want to puzzle over another aspect of the government's position in the Doe litigation: Timing. The Trump/Sessions DOJ, in the nominal interest of protecting the unborn, took the position that a delay in obtaining an abortion raises no serious issues.

The Continuing Extremism of Congressional Republicans

by Neil H. Buchanan

There is no question that moderation has died in the Republican Party, especially among those in the U.S. House and Senate.  From the environment to gun safety to women's rights to economic inequality to judicial appointments, congressional Republicans continue to vote in lockstep to pass an agenda that would make even Ronald Reagan cringe.

Recent events, however, have raised hopes that some of those extremely conservative Republicans will begin to act differently.  Might some, including those who are retiring -- the two most celebrated being Senators Bob Corker and Jeff Flake -- at last be willing to buck the party line and vote against the most extreme policies that their leaders have (since long before Donald Trump came along) been forcing down the country's collective throat?

Not a chance.  The underlying policy situation has not changed, with Republicans in Congress moving forward on their extreme agenda no matter what their feelings are about Trump's fitness for office or their worries about being complicit in the demise of democracy or nuclear Armageddon.  The United States Congress is still a place where elected Republicans go to give to the rich and take from everyone else.

Did the Access Hollywood Tape Help Trump? A Post-Weinstein Appraisal

by Michael Dorf

Watching the well-deserved fall of Harvey Weinstein, Bill O'Reilly, and other public figures who paid large sums to settle lawsuits for sexual harassment (and possibly worse), one can't help but think about the Groper in Chief: If a pattern of sexual harassment makes a man unfit to run a movie studio or to serve up daily doses of right-wing tripe on FoxNews, why didn't the Access Hollywood tape and the credible accusations of a dozen gropees sink Donald Trump's presidential campaign?

The conventional answer over the last year or so has been a variant on Trump's Fifth Avenue Conjecture. Trump famously said "I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn't lose any voters." People who supported Trump, the conjecture goes, knew he wasn't a saint but didn't care. They were in the tank for him, warts and all.

Undoubtedly there's something to that, but I want to propose a more radical--and more disturbing--hypothesis. I want to suggest that the Access Hollywood tape and Trump's general pattern of abusing women actually helped him. He didn't win the presidency despite his misogynistic misbehavior; he won the presidency because of it.

Is There Really More to Say About the Republicans' Supposed Moderates?

by Neil H. Buchanan

Note to readers: I have lightly edited this column at approximately 9:10pm on October 24 to incorporate the news of Senator Jeff Flake's surprise announcement that he will not run for reelection next year.

America's pundit class is terrified of the idea that there are no more moderates in American politics.  More accurately, the typical pundit (from moderate left to moderate right) is concerned that there seem to be no moderate Republicans left standing.

Simply recognizing this new reality would be threatening to the typical mainstream political writer, however, because admitting what has happened would make it necessary to saying something unacceptable: the two parties are not equally wrong about everything.  Because admitting that out loud is forbidden, these arbiters of political good taste both refuse to see moderation among Democrats and imagine moderation among Republicans.

Supposedly, polarization in both parties is driving all of our problems, and if everyone could simply learn to compromise, we would all be better off.  As themes for opinion columns go, this is safer than puppies, apple pie, or baseball.

Every now and then, I cannot ignore the twaddle any longer, and I rouse myself to writing a column that says, in essence: "Is anyone actually paying attention, or are they merely saying what they think everyone else thinks everyone is supposed to be saying?"  That question, far too often, is rhetorical.

Consider the news this week that the congressional committees investigating Russian interventions in the 2016 campaign on Trump's behalf now appear unlikely to reach definitive conclusions about what happened last year.  When Republicans try to sweep things under the rug and Democrats cry foul, that is described as "partisan fighting."  If only there were moderates out there!

We are thus going through another moment in which mainstream pundits are talking about Republican "moderates" and wringing their hands that those good people are unwilling to fight Trump's extremism.  As always, the problem is that there truly are no Republican moderates remaining in office, and those who are anointed the saviors of reasonableness simply do not fit the role.

Above The Law is Not Above Uninformed Invective: What's Their Issue With Vegans?

by Sherry F. Colb

Here is an open letter to the author of a recent essay on Above The Law:

Dear Mr. Mystal:

I had occasion last week to read your Above The Law essay, “Columbia Law Vegans Are Probably Discriminated Against, And I Assume Delicious.” It was quite disappointing, and I feel inspired to explain why.

Let me start by referencing the caption for the photograph at the beginning of the essay. It features a group of vegetables like corn and zucchini, and the caption reads “Would you kill me if I was able to look sad?” This is the only reference—and a rather oblique one, at that—to what might be motivating vegans to take upon ourselves “self-imposed ‘dietary restrictions.’” The caption suggests that vegans avoid animal products because animals “look sad” when they’re being slaughtered. Beyond this caption, if one were learning about vegans for the first time from your essay, one could be forgiven for concluding that we have no reason at all to refrain from eating and otherwise using animals. Below, I elaborate more on the caption. But I want to turn now to the issue of race.

The Double-Taxation Bogeyman Rides Again

by Neil H. Buchanan

The sales job for the White House's non-plan to change the tax system is not going well, by all accounts.  As usual, Donald Trump's lack of focus has distracted everyone, as he flits from one personal feud to another and circles back around to his obsessions with destroying the health care system and building his expensive and pointless wall.

Even so, I stand by my prediction that at some point Trump and the Republicans will pass something that -- no matter how limited or small it is -- they will call "sweeping tax reform," and the supposedly hostile press will play along.

After all, this is a group of people who held a Rose Garden celebration merely because they managed to pass a (terrible) health care bill through one house of Congress.  Imagine their victory lap even if they have done nothing more than, say, change the exclusions for the Alternative Minimum Tax or the depreciation rules for capital investment?  Imagine the lies that their in-house economists will tell of how this new bill will trickle down to the paychecks of "the forgotten people."

Although I am predicting that the talk of a big rewrite of the tax code will end in failure, it is nonetheless interesting and important to keep track of what is happening while the farce plays out.

There is one misdirection play in particular that might actually be used by both Republicans and Democrats for different purposes.  In separate areas of the tax debate, both sides might claim that they are right because it is ever so important to avoid "double taxation."  They will both be wrong.

What to Do about SCOTUS Mistakes: A Not-So Modest Proposal

By Eric Segall

This week ProPublica issued a report with the headline "It's a Fact, Supreme Court Errors aren't Hard to Find." The group reviewed "dozens of cases" and said that it found a "number of false or wholly unsupported claims." Examples included erroneous voter registration rates in Chief Justice Robert's Shelby County decision striking down a key section of the Voting Rights Act; an unsupported conclusion by Justice Alito about the percentage of American companies that require background checks for its workers similar to the ones used for federal employees; and Justice Kagan's statements about the reliability of drug sniffing dogs in an important Fourth Amendment case. ProPublica claimed in the report to review 83 randomly selected opinions over a five year period and found assertions of "legislative facts" in 24 of those cases. The group alleged that seven of those opinions, more than 25%, contained false or unsupported statements of fact.

This report, which should trouble all Court watchers, commentators, and the American people, caught the attention of Fordham Law Professor John Pfaff, who wrote an op-ed on the problem in the New York Times. Pfaff observed that "policy is a major part of the Court's docket now" but neither the Justices nor their clerks have "any serious training" in empirical methods such as statistics. He argued that the Court has traditionally relied on amicus briefs "to provide it with that broad empirical background" but unfortunately "many amicus briefs include false or unsubstantiated empirical assertions, at least some of which make it into the Justices' opinions." Pfaff also noted that many, if not most Supreme Court cases, get to the Court after years of lower court litigation "providing interested groups plenty of time to gin favorable findings." So, in Pfaff's words, "what to do?"

Guns, Constitutional Tests, and Games

by Michael Dorf

My latest Verdict column asks whether a federal ban on bump stocks would violate the Second Amendment. The short answer is no, but as I explain, the full answer is a bit more complicated. During the litigation that culminated in the 2008 SCOTUS ruling in DC v Heller, it was taken for granted by all the lawyers and justices that the federal ban on possession and transfer of machine guns made after 1976 is valid. Indeed, as I note in the column, Walter Dellinger, arguing for DC, labored to persuade the Court that machine guns are indistinguishable (for Second Amendment purposes) from other firearms and that therefore the Court ought not recognize an individual constitutional right under the Second Amendment. The ultimate opinion for the Court strongly hints in dicta that the machine gun ban is valid, but doesn't do a very good job of explaining why.

My column argues that the actual test the Court announced for whether various types of weapons count as "arms" under the Second Amendment seems to point in favor of counting machine guns: There are enough of them in circulation--about half a million--to count as in "common use" and thus not "unusual." To be clear, I don't think the courts are actually going to invalidate the machine gun ban, but I do think that the explanation for the validity of the ban is problematic.

The column uses that fact as an occasion to discuss the validity of a hypothetical law that would ban bump stocks, but there is also a more immediate question. Various states have banned so-called assault weapons, especially semiautomatic rifles such as the AR-15. There is currently pending before the Supreme Court a cert petition by the plaintiffs who challenged Maryland's ban on semiautomatic rifles. They lost in the district court, won before a panel of the Fourth Circuit, and then lost before the Fourth Circuit sitting en banc. The cert petition alleges a circuit split regarding the proper test for determining whether arms are in "common use" but no split regarding bans on semiautomatic rifles or large-capacity magazines. Accordingly, it is difficult to predict whether the SCOTUS will grant cert.

In any event, I want to use the balance of this essay to address a contention made back in 2011 by Judge Kavanaugh in his dissent from the opinion of the DC Circuit upholding the District's semiautomatic rifles ban. All of the judges on the panel agreed that semiautomatic rifles count as "arms" for Second Amendment purposes. The question was how to determine whether a law (more or less) banning this category of arms was nonetheless valid. Applying intermediate scrutiny, the majority said yes. By contrast, Judge Kavanaugh said no, but he gave a different answer to the threshold question of what standard of scrutiny applies. Noting that courts were divided over whether strict or intermediate scrutiny applies to laws infringing the Second Amendment, Judge Kavanaugh said neither. Instead, he wrote, courts should “assess gun bans and regulations based on text, history, and tradition.” In so stating, he echoed a point that Chief Justice Roberts made during the oral argument in Heller. There is a superficial appeal to their idea, but, as I shall explain, it is unworkable.

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

by William Hausdorff

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

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

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

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

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

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

Originalism and Textualism in Action: Not Constraining and Not Neutral

by Joseph Kimble

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

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

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

The Care and Feeding of a Politically Useful Non-Scandal

by Neil H. Buchanan

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

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

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

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

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

by Neil H. Buchanan

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

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

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

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

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

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

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

Irrationality, Baselines, and Government "Intervention"

by Michael Dorf

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

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

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

The Automobile Exception and the Private Driveway

By Sherry Colb

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

Twenty Weeks

by Michael Dorf

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

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

by Neil H. Buchanan

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

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

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

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

The Second Amendment Is Not a Relevant Part of This Story

by Neil H. Buchanan

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

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

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

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

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

The Travel Ban and the Ontology of the Compelling Interest Test

by Michael Dorf

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

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

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

Justice Scalia and the Myth of the Originalist Judge

By Eric Segall

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

Leave the Tax System Alone

by Neil H. Buchanan

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

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

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

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

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

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

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

by Michael Dorf

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