Friday, October 20, 2017

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.

Thursday, October 19, 2017

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.

Wednesday, October 18, 2017

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.

Tuesday, October 17, 2017

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.

Monday, October 16, 2017

The Care and Feeding of a Poltiically 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.

Friday, October 13, 2017

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?

Thursday, October 12, 2017

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.

Wednesday, October 11, 2017

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.

Tuesday, October 10, 2017

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.

Monday, October 09, 2017

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.

Friday, October 06, 2017

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.

Thursday, October 05, 2017

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.

Wednesday, October 04, 2017

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.

Tuesday, October 03, 2017

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.

Monday, October 02, 2017

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.