The Burden of Using Words to Talk About Consent

by Sherry F. Colb

In my Verdict column for this week, I draw parallels between features of Miranda v. Arizona  and police interrogation, on the one hand, and attributes of the words spoken between people before they have sex, on the other. In particular, I propose that like concerns that giving suspects the Miranda warnings would shut down custodial interrogation, worries that requiring a man to refrain from having sex when his partner says "No" would interfere with consensual sex turn out to be unwarranted as well. Indeed, the real problem with Miranda and with "No Means No" is that they do too little. Neither a suspect in custody nor a woman on a date consistently feels safe and comfortable enough to say no.

In this post, I want to focus on a related matter: Why should people have to use language at all to let one another know what they do and do not want sexually? Why can't they just be passionate together and read each other's signals? It seems so unromantic for people to discuss their sexual interests. For some, it appears, we might as well ask people to take a long, cold shower before having sex. Part of the fun is spontaneity and body language, leaving words behind. Isn't it?

The Special Counsel and Mid-Term Election Fetishes

By William Hausdorff

Sometimes it appears that the end of the Trump administration nightmare is at hand, subject to a one-two punch from the Special Counsel and then the electorate in the mid-term elections. To mix sporting metaphors, in some articles it almost seems like a gimme, a golf shot that everyone agrees you don’t even have to take because it’s so easy.  The gimme is not to be confused with the infinite series of mulligans (shot do-overs) that evangelicals grinningly confess to providing Trump with as they overlook his disgusting and nasty personal behavior.

I don’t think it’s a gimme, but there are some interesting twists in the ways this could play out.

Trump Takes Credit for Not Completely Messing Up

by Neil H. Buchanan

My car is running better lately.  My dog's coat is shinier.  Also, I have been sleeping better, and my ingrown toenail is not bothering me as much.  Why have all of these good things happened?  Because of the Republican tax cuts that Donald Trump signed last month, of course.  How silly even to ask.

Now that Republicans have passed their historically unpopular and regressive tax cut, Trump and his helpmates are desperately trying to say that all good things that are happening have been caused by that one terrible new law.

Their campaign is built around Republicans' apparently willful misunderstanding of economics and is sustained by their willingness to say anything and keep a straight face if doing so somehow supports Trump and justifies their tax cuts for corporations and wealthy people.  I cannot wait to see what the tax cut does to clear up the crabgrass in my yard.

Constraints on Authoritarian Regimes and Lessons for the US

by Michael Dorf

My column for this week uses the occasion of the Supreme Court's decision to grant plenary review in the latest version of the Travel Ban litigation to take stock of the Travel Ban saga overall. I conclude that even if the Supreme Court ultimately upholds the Travel Ban or rejects the challenge to it on justiciability or other procedural grounds, the plaintiffs will nonetheless have succeeded in substantial measure. I identify three ways in which a Supreme Court defeat would nonetheless leave intact at least a partial victory: (1) the interim relief and delays permitted thousands of people who otherwise would have been excluded by the Travel Ban to come to the US; (2) the initial court decisions invalidating the ban led to modifications that resulted in somewhat less harsh and more defensible (though still, in my view, unlawful) versions; and (3) the Travel Bans crystallized the cruelty, incompetence, racism, and other horrible aspects of Trump and his administration, thus serving as a potent symbol for resistance.

Some of that third factor involves Trump's norm breaking--such as his reference to Judge Robart as a "so-called judge." More fundamentally, one of the central attacks on the Travel Ban is the claim (with which I agree) that it violates constitutional rules forbidding religious discrimination (whether located in the First Amendment's Establishment Clause or Free Exercise Clause or the equal protection component of the Fifth Amendment's Due Process Clause). The evidence for this claim comes from Trump's call during the campaign for "a total and complete shutdown of Muslims entering the United States" and his occasional referring back to that statement in discussing the Travel Bans as adopted. The "total and complete shutdown" language was a campaign promise to act unconstitutionally, but it was also the violation of a longstanding norm against express appeals to racism, religious bigotry, and xenophobia.

Of course, Trump's violation of minimally egalitarian norms goes far beyond the Travel Ban.  You don't say people from Haiti and Africa come from "shithole countries"; you say you want to reform immigration to ensure that immigrants have the "right skills." More broadly, Trump's open appeal to racism violates the norm of restricting the expression of such views to plausibly deniable dog whistles.

Blue State Taxpayers and Regressivity

by Neil H. Buchanan

One of the most openly partisan provisions in the tax bill that Donald Trump signed last month was the limitation on the deduction for state and local taxes (SALT).  How can that be partisan?  Because so-called blue states collect more in taxes than red states do, allowing the blue states to provide more services to their citizens while red states starve their public sectors.  Limiting that deduction thus increases taxes on blue state taxpayers.

The ability to deduct SALT payments when computing federal taxes is, in fact, one of the only ways that the federal government helps blue states.  Red states are generally net recipients of federal money while blue states are net payers, and the difference can be large.  Focusing only on the SALT deduction deliberately obscures that larger reality.

In part one of this two-part series of columns, I noted Michael Dorf's argument that the effort by Trump and the Republicans in Congress to specifically target taxpayers based on their voting patterns is a violation of the Constitution (which nonetheless probably cannot be vindicated in court), and I also described how the governments of blue states have been trying to come up with ways around the new law, setting up "charities" to which people could send their state tax payments.  Because Republicans did not limit the charitable deduction, this would neatly sidestep the new limit on SALT deductions.

That strategy might not ultimately work, but on the other hand it might.  But other than serving to frustrate the partisan hit job that Republicans pulled off with their tax law, would it actually be a good idea for the Democrats to do so?  More provocatively, as I asked at the end of part one: "Should liberals actually be trying to reduce the tax bills of arguably comfortable people in the name of foiling conservatives' attack on state governments?"  Spoiler alert: I said that the answer is yes.

To be clear, it would be much more direct and effective to repeal the bill and then to replace it with something much more progressive.  Doing that, however, will not happen unless and until Democrats win some elections in 2018 and 2020.  In the meantime, they should try to make progress where they can make progress.

Public Sector Union Dues, Precedent, and the Rule of Law

By Eric Segall

In Janus v. AFMSCE, the Supreme is revisiting the issue whether state laws requiring all public sector employees to pay union dues violates the First Amendment. Some state employees who don’t want to join unions argue that these dues fund ideological speech with which they disagree. Therefore, they contend that state laws requiring them to pay the fees against their will violate their right to free speech. The states’ counter-argument is public-sector union activities redound to the benefit of all state employees and, in any event, non-consenting employees may engage in as much counter-speech as they want against the union’s activities, so their first amendment rights are not abridged.

Hamilton Versus Trump Part 1

by Michael Dorf

Yesterday was the first meeting of a new seminar I'm teaching this semester called Hamilton Versus Trump: Reading the Federalist Papers in Contemporary Context. I intend to provide occasional reports on topics that arise in the seminar over the course of the semester when they strike me as likely to be of wider interest. But first, the course description:

This seminar will explore the contemporary relevance of The Federalist Papers. In constitutional law classes, students typically read excerpts of a few of The Federalist Papers. In this seminar, we will read them in order and in their entirety. 

For each of ten sessions, students will read a number of the essays. Prior to each of these meetings, each student will be responsible for identifying at least one contemporary issue to which the assigned reading from The Federalist speaks. Class discussion will then be divided roughly evenly between analyzing the arguments in The Federalist on their own terms and considering their relevance to such contemporary issues as how the Electoral College functions, the degree to which democracy presupposes a homogeneous population, and the mechanisms by which Congress may check the president. 

In the final three sessions, students will present and critique one another's drafts of research papers for discussion. 

Hardball Politics and Unconstitutional Ideological Targeting by Republicans

by Neil H. Buchanan

Taxes are not supposed to be in the news right now.  Back in December, Republicans abandoned all pretense of legislative order and sensible lawmaking to pass their stroke-the-rich tax bill, which Donald Trump happily signed.  And now we are supposed to have moved on, which is pretty much what has happened.  Why continue to worry about the last tragedy when new tragedies are hitting us in the face every day?

It is amusing to note, however, that Trump and the Republicans apparently think that their awful tax bill was a political win for them, which means that they are the ones who want to keep talking about it.

In his inimitably narcissistic way, Trump even argued that the current government shutdown is all about the tax law.  As The New York Times reported on January 18: "Traveling in Pennsylvania, Mr. Trump accused Democrats of provoking a shutdown to drown out discussion of the Republican tax overhaul. 'I think the Democrats would like to see a shutdown in order to get off that subject,' Mr. Trump told reporters before delivering a speech."

The words "detached from reality" seem especially apt here.

Is there a difference between non-prohibition and authorization?

by Michael Dorf

A new National Constitution Center (NCC) podcast hosted by NCC President Jeffrey Rosen and featuring Cato's Ilya Shapiro and yours truly addresses federalism issues arising out of three controversies in the news: the pending Supreme Court case of Christie/Murphy v. NCAA; the rescission by Attorney General Sessions of the Cole memo regarding federal enforcement of the Controlled Substances Act with respect to marijuana in states that have legalized medical marijuana (and related actions regarding enforcement with regard to state-legal recreational marijuana); and the Trump/Sessions policy with respect to sanctuary cities.

The common thread running through each of these controversies is the constitutional doctrine forbidding the federal government from "commandeering" state legislative and executive officials. Because I have already commented on the marijuana and sanctuary cities issues, in this column I'm going to expand on a position I articulate in the podcast regarding the Supreme Court case, which involves the interaction of federal and state law on sports gambling.

Opening Up About Shutdowns

by Neil H. Buchanan

As I write this column, it is still unclear whether there will be another government shutdown.  If nothing changes, the so-called nonessential functions of the federal government will cease operations at midnight on Friday, January 19.  The latest reports indicate that Donald Trump has thrown another hand grenade into the room by undermining the Republican leaders' latest bargaining strategy.  Within minutes, however, that was (unsurprisingly) being disputed.

This is a mess, but other than proving again that Trump knows nothing about negotiating and that Republicans are incapable of governing responsibly, does any of it matter?  The short answer is that a possible shutdown is not as important as people make it out to be.  Because this is ultimately all about political theater, however, this lowbrow farce can end up making a big difference for the two parties' respective political fortunes.

In any event, it is worth understanding what is not at stake as well as what is at stake, especially because averting this particular possible shutdown does not eliminate the threat of other shutdowns in the near future.

The Warrant Requirement

by Sherry F. Colb

In my Verdict column for this week, I discussed Collins v. Virginia, a case presenting the question whether the automobile exception to the warrant requirement applies to searches of vehicles parked in a suspect's driveway. In the column, I examine the question about the Fourth Amendment and the driveway (doctrinally designated as the "curtilage") and consider as well whether the Court ought to get rid of the automobile exception to the warrant requirement altogether. In this post, I will take up the broader issue of why we have a Fourth Amendment warrant requirement and what this requirement can and cannot do to protect privacy.

The Long-Term Impact of "Fire and Fury" and "Shithole Countries"

by Neil H. Buchanan

If someone had told me on New Year's Day that the first two big stories of 2018 would be the release of a book detailing the White House's dysfunction and Donald Trump causally denigrating more than a billion nonwhite people, I would not have been even a little bit surprised.  Looking at this mess barely two weeks later, only the details are somewhat unexpected, and even those details are not at all shocking.

It seems like an eternity has already passed since Michael Wolff's book became the talk of the town, but the first newspaper articles about Fire and Fury were actually published on January 3.  (The New York Times ran a Reuters piece that afternoon.)  The ensuing two weeks have seen the kind of nonstop screaming fest that has become all too familiar in the last year, and Trump's racist comments last week about immigration from poor countries simply added to the chaos.

What, if anything, will be the long-term impact of all of this hubbub?  Even at this early point, it appears that this is just another insane set of news cycles that will be quickly forgotten, with only the detritus lingering in the public's mind.  (The word "shithole" is now permanently part of the world's political lexicon.)

The only development of any lasting significance, I think, is the Wolff-caused epic blowup of the relationship between Steve Bannon and Donald Trump.  What is puzzling and surprising, as I explain below, is that it is currently possible to see how that crackup could turn out to be a win for almost anyone (except Bannon himself, of course), even though it cannot possibly end up being a win for everyone simultaneously.

In the end, however, I think the most likely effect of the latest events will be that Trump -- even without Bannon -- has turned every Republican into every Democrat's dream opponent.  The first half of January will have made it even easier to run against Trump's party of enablers in November.

Dr. King, Trump, and Dignity

by Michael Dorf

In past years, I have marked the birthday of the Rev. Dr. Martin Luther King Jr. by discussing his oratory or noting the importance of the recognition of the day as an official holiday. This year I want to reflect on what an official celebration of King's anti-racist legacy means when we have a racist president. I'll use Trump's description of Haiti, El Salvador, and African nations as "shithole countries" as my jumping-off point, turning back to Dr. King at the end of this essay.

Reality-Based versus Faith-Based Economics

by Neil H. Buchanan

Imagine that you are in business.  You make good products, but you necessarily create a mess while you make them.  Like baking cakes, or catering parties, or refining oil into gasoline.  People want what you are selling, and you can make it cheaply enough to make a profit.

You hate dealing with the mess, but you have to do something about it.  What to do?  Cleaning up your own mess is annoying, costly, and time-consuming.  You could hire someone else to do it for you, or you could figure out a way to push the mess onto someone else and force them to deal with it.

In each of those two alternatives to doing it yourself, you no longer need to care about how the mess is handled.  If your hired clean-up crew is inhaling toxic chemicals or developing repetitive stress injuries, that does not feel like your problem.  If you have successfully pushed the mess completely onto others (by dumping your mess into a river, for example), you do not even need to worry about paying anyone at all.  Out of sight, out of mind.

For you, the best part of making your mess other people's problem is that you can do more of what you like to do.  You can make more cakes, cater more parties, ship more gasoline.  Your revenues are up and (with some exceptions that you can generally choose to avoid) so are your profits.  Freedom to be entrepreneurial, to be a maker and not a taker, feels good.  You like yourself, and people say good things about you.

So when someone comes along and tells you that the way you are shoving your mess onto other people is dangerous or economically damaging or simply unfair, you have two choices.  You can admit that your productive activities are more costly than you realized and take responsibility.  If so, good for you.

Unfortunately, you can also scream about how other people do not appreciate your genius and the sacrifices that you make, and you can buy politicians who will allow you to keep doing what you are doing (and who will make flowery speeches about you whenever possible).  This has the advantage both of fattening your bottom line and flattering your self image.  Who could say no to that?

The Deregulation Fairy

by Neil H. Buchanan

One of the myths that Republicans have successfully planted in the mind of the media is that American businesses have been excessively regulated.  This has led to credulous reporting about the supposedly "onerous burdens" of federal rules, recitations of the number of pages in the Code of Federal Regulations, and so on.

That old myth has now oddly merged with a new myth that grew out of the 2016 elections.  American political reporters and editors decided that they had been living in a bubble and thus failed to see the misery that purportedly led a surprisingly large minority of voters to pull the lever for Donald Trump.  Solution?  Send reporters to The Heartland to talk to Real Americans about why they like the man-child that they put in the White House.  Be respectful.  Believe whatever they say.

The results have been absurd, reaching a low point with an infamous New York Times piece in November of last year about a Nazi sympathizer who lives in Ohio.  The article was rightly mocked for normalizing a sociopath (He likes "Seinfeld"!), and The Times backtracked furiously.  Yet that incident only served to highlight the ridiculousness of the efforts by self-flagellating media types who think that their job is to engage sympathetically with people who voted for an obviously racist candidate and campaign.

How do these two myths fit together?  Coastal reporters are going to The Heartland again, but not to talk to the supposedly forgotten people who flipped from the Democrats to the Republicans and put Trump in office.  Instead, the new move is to interview Republican businessmen and then gullibly report what they say about Trump's deregulatory agenda as if it must be important and true.

To be clear, I am not equating the hatred of white supremacists with the self-important reactionary politics of local business elites.  What I am doing is equating the instinct on the part of reporters and editors that talking to people in the Midwest brings with it a requirement to present anything that the interviewees say in sympathetic terms.  Uncritical reporting is stenography, and it can make absurd ideas seem normal.

When Should Federalism Matter to the Exercise of Prosecutorial Discretion?

by Michael Dorf

In my latest Verdict column, I examine three grounds for opposing the Sessions/Trump reversal of the Obama administration marijuana policy: (1) It betrays promises made by both Sessions and Trump; (2) it's bad policy; and (3) it betrays principles of federalism. I agree with points (1) and (2), but I register considerable skepticism about (3). To my mind, the federalism objection is parasitic on the policy objection. If one thought that some federal law were important--a law restricting machine gun ownership, say, or, per my example in the column, a civil rights law targeting state and local government complicity in racial violence--then the fact that the state did not have duplicative laws would not count as a reason for federal forbearance. Indeed, we might think that the absence of state law counts as a special reason for vigorous federal enforcement.

Here I want to sketch the boundaries of these principles. Does state policy ever justify federal forbearance? And if so, why doesn't it justify forbearance with respect to federal marijuana enforcement?

How far gone must a president be to be "unable to discharge the powers and duties of his office"?

by Michael Dorf

Yesterday I discussed the seeming oddity that public debate about impeachment and the 25th Amendment has lately treated the two constitutional mechanisms as interchangeable. I concluded that there is actually an area of substantial overlap between the two, analogizing to the overlap between conduct that could give rise to either (or both) criminal liability and civil confinement based on dangerousness due to a mental disorder. Today I want to ask another question involving the 25th Amendment: How far gone must a president be to be "unable to discharge the powers and duties of his office"?

The Overlap Between Impeachment and the 25th Amendment

by Michael Dorf

To make clear that I am about to engage in a purely "academic" exercise, I begin with the obvious political reality: (1) There is virtually no chance that Donald Trump will be removed from the presidency via the 25th Amendment based on his past conduct or his inevitable future conduct of a similar sort; and (2) absent irrefutable evidence of crimes on the order of cannibalistic murder personally committed by Trump, there is also virtually no chance that Trump will be removed from the presidency via impeachment, even assuming a strong midterm wave election in which Democrats take the House and the Senate, because Republicans will still have enough votes in the Senate to block removal.

That is the reality, because it is now clear that there are very few Republicans willing to stand up to Trump when it really matters. I suppose that it is possible that a sufficient drubbing in the midterm elections could change that--which is why I hedged a bit by saying "virtually" twice in the prior paragraph. For practical purposes at least for now, both impeachment and invocation of the 25th Amendment--no matter how justified--are a mirage.

Nonetheless, because I am an academic who values academic exercises, I want to use the current moment--in which our president has issued a self-refuting tweet branding himself a "stable genius" in response to the report in Fire and Fury that various members of his own inner circle regard him as unfit for office--to make some observations about the partial interchangeability of removal by impeachment and removal via the 25th Amendment.

Trump Threat To Sue Over "Fire & Fury" Includes Bogus Inducement to Breach Claim Re Bannon

by Michael Dorf

When I first learned yesterday that a Trump lawyer had sent a cease-and-desist letter to the author and  publisher of Fire and Fury: Inside the Trump White House, I assumed that it was mostly bluster. Reading the letter confirmed that first impression, but it raises at least one interesting question: Can the author or publisher of a book be held liable for inducing the breach of a nondisclosure agreement (NDA)? After setting forth a few general points, I'll address that question. Spoiler alert: The answer is almost certainly no.

Trump, Republicans, Deregulation, and Permanent Tax Cuts

by Neil H. Buchanan

In an apparent effort to prove that they are objective, The New York Times and The Washington Post have recently been assessing Donald Trump's first almost-year in office with feelgood descriptions.  Trump is given a pass because he has worked the refs almost to death, and they are desperate to try to prove that they are not the enemy of the people.

We thus see phrases like "reinventing the presidency" stand in for "tearing down constitutional norms."  Reporters allow "success" to be defined by the people declaring their own successes, like Republicans passing a mess of a stroke-the-rich tax cut bill and putting unqualified ideologues on the bench.  Trump and a party in full control of all branches of government have managed to do a few things that they wanted to do.  These somehow constitute notable accomplishments.

That is mostly a matter of annoyance, although it does contribute to the continuing normalization of that which is and must remain unacceptably abnormal.  I will set those long-term political concerns aside here, however, to focus on a recent article by two Times reporters: "The Trump Effect: Business, Anticipating Less Regulation, Loosens Purse Strings."

The article is a veritable study in dutifully covering all of the bases while making an argument that the writers know is at best speculative (and is actually completely wrong) -- and then packaging that argument not only as a partisan statement but one that gives Trump credit where absolutely none is due.

The Intersection of Abortion Rights and Sexism

by Sherry F. Colb

In my Verdict column for this week, I consider the claim that the sexual revolution explains the sexual misconduct that has surfaced lately in #MeToo revelations. In this post, I consider the role that legalized abortion might have played in protecting or motivating coercive sexual conduct.

I recently heard someone making the argument that that the pro-life view is more feminist than the pro-choice perspective on abortion. I had heard the claim before. It goes roughly like this: the pro-choice approach treats the woman and her baby as adversaries and pregnancy as a pathological condition. The idea is that pro-choice advocates alienate women from their own bodies and their own babies to such an extent that women prefer to kill rather than keep their unborn children.

Law Clerks, Judicial Power, and the Code of Silence

By Eric Segall

In Mike Dorf's recent critique of the district court decision dismissing an Emoluments lawsuit against President Trump for lack of standing, ripeness, and virtually every other justiciability doctrine ever sighted by person or beast, Mike dropped this little nugget: "didn't the law clerk look this over before sending it out the door ...?" This was a fair question given how illogical and unpersuasive the judge's reasoning was in this case. However, the chances are that Mike's question had the order reversed. What he should have asked is "didn't the judge look this over before the law clerk sent it out the door?" I explain below.