Wednesday, February 28, 2018

Submission

by Sherry F. Colb

In my Verdict column this week, I talk about two of the ways in which African Americans and women have been marginalized: denial and devaluation. Denial refers to the refusal to credit the stories that people on the losing side of racial and gender conflicts tell. If a police officer kills a black suspect, and witnesses say that the killing was unprovoked, they face skepticism and disbelief. And the same is true for women who tell of being raped by a date; listeners (such as juries) choose not to believe what they are hearing and to assume that the woman is lying. Devaluation happens sometimes when African Americans and women manage to actually convince those in power that what they are saying is true. Devaluation consists in minimizing the gravity of the harm in question.

In this post, I want to talk about a movie, because even though movies ostensibly tell one story--and a fictional one at that--the story often represents a narrative about what typically happens. A movie about a white police officer who killed an African American suspect for a good reason would accordingly represent an effort to offer up the narrative that says that when police kill suspects it is usually justified.

Tuesday, February 27, 2018

Gun Violence: Trump's Non-Solutions and Some Real Solutions

by Neil H. Buchanan

In the uncharacteristically extended political aftermath of the February 14 school killings in Florida, we have seen a surprisingly wide range of proposed solutions and an even more surprisingly naked display of Republican lying and cowardice.  Although I continue to suspect that nothing meaningful will ultimately be done, it is impossible not to perceive a distinct ray of hope that has not been visible in the five years since Sandy Hook.

Moreover, even if no laws are changed, the revelation of Republicans' stark dishonesty might itself be helpful in leading to better results in the future.

On guns, as on so many things, Donald Trump is not a man who (as many pundits would have it) pulled off a hostile takeover of the Republican Party.  It has become ever more obvious that he is what movement conservatives have always been, and his rise has simply allowed the Republicans to boot out the few remaining voices of quasi-sanity in favor of those who embrace the worst kind of ruthlessness in both methods and policies.

The raging paranoia of the gun lobby's spokespeople makes it clear that guns are only a small part of their concern.  It is about "socialism," whatever they might mean by that.  They also say, weirdly, that it is about people who will not allow kids to be spanked.  As Jennifer Rubin archly commented after Wayne LaPierre's speech at a conservative conference this week: "If someone were mumbling like that at a bar, the bartender would be obligated to cut off his drinks."

Monday, February 26, 2018

Do 18 Year Olds Have a Constitutional Right to Guns?

by Michael Dorf

Dissenting from the denial of certiorari in Silvester v. Becerra last week, Justice Clarence Thomas lamented that the lower courts have been undermining the Second Amendment by saying they are applying intermediate scrutiny to gun regulations but actually applying something more like the low-level scrutiny of the rational basis test. He thought that the US Court of Appeals for the Ninth Circuit committed this sin in its opinion upholding a California law imposing a 10-day waiting period for the purchase of firearms. Justice Thomas also chastised his colleagues for treating the Second Amendment as "a disfavored right."

The idea that the right to possess firearms is "disfavored" anywhere in America would likely be received with puzzlement in most of the world. Indeed, last week's juxtaposition of a Supreme Court justice complaining that firearms are too difficult to obtain with students who survived the shooting at Marjory Stoneman Douglas High School pleading for the grownups to do something to protect them was arresting.

Beyond the symbolism of Justice Thomas's poorly timed Silvester dissent lies a question of law. What would real intermediate scrutiny of firearms regulations look like? I'll try to answer that question by comparing a classic case of such intermediate scrutiny with a hypothetical challenge to the proposal to raise the minimum age for the purchase of assault rifles to 21.

Sunday, February 25, 2018

Take a Survey to Advance the Store of Knowledge

by Michael Dorf

A team of researchers from Stony Brook University have asked me to help them study the role that emotion plays in politics. I have completed the survey myself, and it only took me about ten minutes. The survey is completely anonymous. Click this link to begin the survey.

Please DO NOT POST COMMENTS BELOW AS THEY COULD BIAS THE RESULTS OF THE SURVEY.



Saturday, February 24, 2018

This Russian Stuff


By William Hausdorff

I’m trying to decide how much of this Russian stuff really matters.  According to some of the recent indictments by the Justice Department, a concerted, well-funded Russian disinformation effort turbo-powered by bots was designed to interfere with the US presidential election campaign in 2016.  Thirteen Russians are accused of wire fraud, bank fraud, identify theft, even conspiracy to defraud the US government.  

On the one hand, by demonstrating there was a serious effort to interfere with the election campaign, Special Counsel Robert Mueller and team imply that collusion by the Trump campaign or family to abet this conspiracy, and/or of obstruction of justice to block its investigation, is not something that can be dismissed as “just politics.” 

All admit that Mueller is unlikely to get his hands on any of these Russians to put them on trial, much less in prison.  The tacit assumption, then, is that this merely sets the stage for future charges and indictments that will reach well into the upper reaches of the Trump White House.

Yet the underlying theme in the media is that the Russian origins of this particular operation, not to mention being sponsored by a crony of Putin, make it especially nefarious or potent.  Extremely knowledgeable observers such as the US/Russian reporter Masha Gessen have recently noted that

Loyal Putinites and dissident intellectuals alike are remarkably united in finding the American obsession with Russian meddling to be ridiculous. 

And that the notion that there has been an elaborate, well-orchestrated Kremlin-hatched plan to “throw” the election to Trump—rather than just “sow discord”—is similarly absurd.

Friday, February 23, 2018

Trump Finds a Regulation That He Might Like

by Neil H. Buchanan

Is everyone a hypocrite?  In our personal lives, no one is immune to the occasional convenient flip-flop.  In politics, Democrats and Republicans often trade places depending upon whatever is happening at the moment.  For example, each side's high dudgeon over the other side's use of (or elimination of) the filibuster has made for great before-and-after sequences of clips on news and comedy shows.

Even though we are all hypocrites at various times, and even though politics is fueled by situational ethics, there are certainly people and groups who are better and worse at the fine art of hypocrsy.  Democrats have engaged in gerrymandering, but they support a system in which neither side could choose its voters.  Republicans do not.

Similarly, Democrats rely more than they should on wealthy donors, but they would thrive in a system with strict limits on plutocratic influence.  Republicans talk darkly about George Soros's supposed malevolent manipulations, and they gleefully screamed about Hillary Clinton's paid speeches, but they are absolutely committed to increasing the influence of big money in politics.

And of course, Republicans were against budget deficits until they had the opportunity to run deficits for their own reasons, whereas Democrats actually reined themselves in (even when increasing deficits would have been a good idea politically and economically) when they did not have to do so.

Even if everyone is a hypocrite, therefore, the current metastasized version of the Republican Party is simply better at it than everyone else.  Practice makes perfect.  I thus do not intend to claim that Donald Trump's latest hypocrisies regarding guns are a new low, because I have no way to measure him against his compatriots in comparative dishonesty.  Even so, his latest statements and actions are certainly both entertaining and scary.

Thursday, February 22, 2018

What is Originalism circa 2018?

By Eric Segall

I spent last Friday and Saturday at the works-in-progress Originalism Conference at the University of San Diego. Professors Mike Rappaport, Mike Ramsey, Steve Smith, and Larry Alexander were wonderful hosts. I highly recommend this annual conference for anyone interested in originalism specifically or constitutional theory generally. I learned a tremendous amount from the papers presented and the robust, civil, and interesting discussions that took place. One thing I didn't learn, however, was what is Originalism circa 2018.

Wednesday, February 21, 2018

Why A Lawyer Shouldn't Be Allowed to Pay A Client's Bills: (More) Reflections on Rule 1.8(e), Cohen, Trump, and Daniels (A Response to Prof. Dorf)

by Diane Klein

In this space yesterday, Prof. Dorf argued (not exactly in "defense" of Michael Cohen's payoff to Stephanie Clifford aka Stormy Daniels aka Peggy Peterson, through a shell company created for that purpose only) that while Cohen using his own money to pay off Stormy Daniels for her silence about her affair with Donald Trump might violate Model Rule of Professional Responsibility 1.8(e) (or its New York equivalent), the rule itself is "foolish."  I disagree.


Federalist 46 and the Second Amendment

by Michael Dorf


This week, my seminar students and I read Federalist Nos. 36-47. After a month of mostly Hamilton, it was interesting to shift gears and hear from Madison. In light of the school shooting in Parkland, Florida last week, it was hardly surprising that a substantial part of our seminar discussion focused on the implications of Madison's statements in Federalist 46 about "citizens with arms." But given the increasing frequency and severity of mass shootings (which I discuss in my new Verdict column), our discussion likely would have turned to the Second Amendment even if the news had not included a very fresh tragedy.

Tuesday, February 20, 2018

Why Shouldn't a Lawyer Be Allowed to Pay a Client's Bills? Reflections on Michael Cohen, Donald Trump, and Stormy Daniels

by Michael Dorf

Donald Trump's lawyer Michael Cohen claims that he paid Stephanie Clifford, aka Stormy Daniels, $130,000 out of his own pocket in exchange for her keeping quiet about her alleged adulterous liaison with Trump. As discussed in a lurid story in yesterday's NY Times, the payment may have violated federal campaign finance law (as an unreported and cap-exceeding donation of in-kind services to the Trump campaign) as well as New York's ethics rules.

The story also raises questions of journalistic ethics: Is it ever proper for a newspaper (even a gossipy tabloid) to pay for the rights to a story for the purpose of killing the story as a favor to the politically connected friends of the paper's publisher? (The tabloid publishers deny that was their goal in this and other instances, but the Times story cites sources to the contrary).

That's all fascinating stuff. Here I want to focus more narrowly on the rule of legal ethics that Cohen might have violated by making an apparent gift of $130,000 to his client.

Monday, February 19, 2018

What One Impassioned Military Veteran Says About Guns

by Neil H. Buchanan

It is time for another go-round regarding gun violence in the United States.  A few short months ago, the world was shocked by the carnage in Las Vegas and then Sutherland Springs, Texas.  We briefly became fascinated by "bump stocks," but then the Republicans in Congress made clear that even a cheap and easy add-on that turns a semiautomatic weapon functionally into an automatic weapon was not something they were willing to ban.

And now, with shooting after shooting barely registering on the news meter in the meantime, we are wondering whether seventeen deaths in a high school in Florida will finally lead to action.  The early signs are promising, but on the other hand, so were the early signs after the Sandy Hook massacre more than five years ago.  At least some states passed meaningful gun control back then, even though Congress could not even rouse itself to agree with ninety percent of the American people that potential purchasers of guns should have their backgrounds checked.

During the Las Vegas-Sutherland Springs time frame, I wrote four columns about the gun debate in this country (here, here, here, and here).  I spent much of my time in those columns exploring the so-called Insurrectionist View of the Second Amendment, which is the claim that (as I put it in one of those columns) the American people must own guns in order to prevent the government from taking away their guns.

As Michael Dorf put it five years ago, the Insurrectionist View is "Ted Cruz Crazy," far beyond even what Clarence Thomas and Antonin Scalia ever endorsed.  My analysis described how absurd the Insurrectionist View is, and I ended up spending quite a bit of time talking about the claim from some gun extremists that the U.S. military is essentially a hive of insurrectionist sleeper cells that would spring into action if real gun control were ever to become law.

Happily, even though there are well documented (but fortunately not widespread) problems with white supremacists and other fellow travelers in the military and law enforcement agencies, the fact is that the vast majority of Americans in the military are deeply committed to living up their oaths to defend the Constitution and the nation.  This makes the idea of their joining an insurrection impossible to imagine -- for them, even more than for the rest of us.  This is comforting, to say the least.

But what do those people who signed up possibly to be shot at and die in the line of duty think about gun control, as a matter of morality and policy?  As it happens, I have been lucky enough to befriend a man who served over twenty years in the military, fifteen of which were in the military police.  He left the service with a chest full of decorations and continues as a private citizen to do work that enhances our national security.

Because his current position does not allow him to speak publicly about these sensitive political issues, I am distilling and expanding upon his ideas, which he shared with me via email after the news from Parkland had filled the news feeds.  His sensible views cut against the popular suggestion that the way to fight violence is always by escalating the threat of violence and especially by putting soldiers in charge.

Friday, February 16, 2018

Why In the World Would Democrats Refuse to Make Trump a Campaign Issue?

by Neil H. Buchanan

To hear many Republicans and Democrats tell it, the country should stop letting itself be jerked around by the chaos in Donald Trump's White House and instead insist that politicians focus on Real Issues.  In particular, many supposedly savvy political observers on both sides seem to think that the economy is the better issue on which their candidates should focus.  Is this a rare instance in which partisans on both sides are right?

With 20-20 hindsight, of course, one side would certainly conclude that it was wrong.  That is, if both sides emphasized economic issues throughout the mid-term campaigns, the losing side would immediately regret its decision.  Republican or Democrat, each loser would conclude that a different strategy would have worked better, or at least not have been worse, because losing is losing.

But what is interesting, in advance of the elections, is how much confidence there is among political commentators on both sides that their candidates should not become "distracted by the noise."  Prominent voices, liberal and conservative alike, are saying that they will win only by focusing on economic issues.  Even though that cannot possibly right in an ex post sense, what could both sides be seeing that makes them think that their best strategy is to run on economic issues?

Thursday, February 15, 2018

The First DACA Rescission Was Arbitrary and Capricious. Will the Next One Also Be?

by Michael Dorf

With President Trump's deadline rapidly approaching, negotiations and debate in Congress may or may not produce legislation protecting some or all Dreamers. Meanwhile, on Tuesday, a federal district judge in Brooklyn issued a preliminary injunction against the rescission of DACA. As the opinion repeatedly emphasized, the judge did not rule that the administration lacks the power to rescind DACA. Rather, the court held that the administration's stated rationale--that DACA is unconstitutional--was inadequate and contradicted the administration's decision to retain DACA in place for half a year. Thus, according to the ruling, the rescission was arbitrary and capricious in violation of the Administrative Procedure Act (APA). The administration can still rescind DACA, but before doing so, the relevant agency (here the Department of Homeland Security) must articulate a better reason.

Should Congress adopt a permanent fix to DACA in the coming days, the preliminary injunction will prove unimportant. But given deep divisions within and among the parties, that is hardly a sure thing. Accordingly, the ruling warrants careful study.

Wednesday, February 14, 2018

Shaquille O'Neal and the New Originalism

By Eric Segall

This Friday and Saturday I'll be discussing my forthcoming book "Originalism as Faith" at the annual Works-in Progress Originalism Conference at the University of San Diego. I am excited and flattered to be included in this event. In this post, I want to discuss one aspect of my book that deals with what many people call "New Originalism."

When Exercising One's Autonomy Clashes With One's Best Interests

by Sherry F. Colb

In my Verdict column for this week, I examine the case of McCoy v. Louisiana, currently pending before the Supreme Court. In McCoy, the Court faces the question whether there is a Sixth Amendment right to stop your lawyer from announcing your guilt to a jury, even if the announcement would serve your best interests (in reducing the odds of a death sentence). Among the issues I consider is how to cabin such a right so that convicts are not all in a position to reopen their convictions just because their attorneys deviated from the exact instructions of a client.

A useful analogy to consider here is the medical decision context. A patient who is uncomfortable with her doctor can decide not to patronize the particular doctor or, if he sticks with the doctor, not to follow the recommendations that she makes. For example, if the doctor prescribes a medication that the patient does not want, either because he hates medications in general or because the side effects of this one are unpleasant, the patient can choose not to fill the prescription or to refuse to take it after having filled it. Similarly, the patient can choose not to undergo triple bypass surgery, even though he has heart disease. He may have a bad reason for the decision, such as a belief that heart disease is a myth, or he may have a good reason, such as a commitment to eat in a manner that actually reverses the condition. Either way, he can forgo the medication and the surgery, come what may.

Tuesday, February 13, 2018

The Futile and Condescending Pursuit of Trump's Remaining Supporters

by Neil H. Buchanan

There is a sub-genre of political punditry that relentlessly promotes the idea that the balance of future political power in the United States depends entirely on Democrats reconnecting with the people who voted for Donald Trump.  And to do that, Democrats supposedly need to "understand" and reach out to those voters.

I used scare quotes in that last sentence because the new conventional wisdom among these pundits is not simply that Democrats need to try to understand Trumpists in the sense of figuring out what common ground might exist between the issues they care about and what Democrats can honestly and honorably offer.  It is that Democrats apparently need to stop being snobby meanies who haughtily dismiss those voters' concerns.

As far as it goes, of course, that is the kind of political advice that only a writer with a superiority complex could offer with a straight face.  "Wow," we are apparently supposed to say in response.  "You mean we shouldn't gratuitously insult people whom we're trying to win over to our side?  Thanks for your brilliant insight!"

To be clear, the tut-tutting liberals probably do realize that their advice is obvious, which would explain why they are so exasperated at the very idea of reminding their supposedly wayward compatriots about basic etiquette.  The problem is that they seem to think that the only thing that Democrats need to do is simply be nice to these voters and everything will be fine.  Trump's voters are supposedly willing to switch back to the Democrats's side, and Democrats will apparently not lose any other voters by doing what is necessary to appeal to the white working class voters who were thrilled by Trump.

The bad news is that none of that is true.  The evidence is stronger than ever that Trump's remaining supporters are never coming back, and trying to get them to do so would seriously compromise the Democrats with other voters.  The good news is that Democrats can easily do everything they need to do to win without foolishly pursuing voters who are gone forever.

Monday, February 12, 2018

Me Too Movement Intersects Animal Protection Movement

by Sherry Colb & Michael Dorf

As co-authors of a book about animal rights and a quintessential woman's right--abortion--we were keenly interested in the recent news that CEO Wayne Pacelle and former Vice President for Policy Paul Shapiro of the Humane Society of the United States (HSUS) were facing allegations of sexual harassment. Their behavior led to their respective ouster and resignation. As James McWilliams noted last week, a similar pattern of behavior at other animal welfare organizations raises the troubling questions whether such organizations are especially bad places for women to work, and if so, why.

McWilliams offers the provocative suggestion that the animal welfare ethos has at its core a message that conduces to strongman leadership that in turn can easily be turned to abuse. He notes that
male leaders in the movement portray themselves [as] handsome, charismatic men snuggling with cute, vulnerable animals.  . . . What's being manufactured . . . is a virtue-packed message of trust, tenderness, and compassion. These men are advertising what appears to be a rare sensitivity to the most vulnerable creatures in order to generate donations for their organization. This combination of institutional power plus the appealing image of compassion for fuzzy creatures places these men on a pedestal of attraction that other executives in other lines of work may not enjoy. This is a movement whose ranks are dominated by young women sickened by the notion of animal abuse. And here are these handsome sensitive types to fight the good fight, all the while cuddling a piglet. It's easy to see how this situation could turn exploitative.
We think that McWilliams may well be onto something here. We'll add a few observations based on our own experience in and around the fringes of the animal welfare movement. As proponents of animal rights who have expressed misgivings about some of the strategic and tactical compromises made by animal welfare organizations such as HSUS, we cannot offer a true "insider" perspective. That said, there is enough overlap among the people who work for animal rights and animal welfare--including many we count as our friends--for us to have a reasonably close view.

Friday, February 09, 2018

Why My Apolitical Column About Law Schools Is Politically Relevant

by Neil H. Buchanan

The Republican-dominated state legislature in Idaho "scrubbed all mentions of human-caused climate change from the state’s education standards last year," and even after a backlash, it has now approved revised standards that remove all but a few references to the human role in global warming.  Idaho is the most extreme case, but multiple Republican-led state legislatures have also been pursuing this anti-science path, mirroring the Trump Administration's climate denialist efforts.

With the conservative attack on scientific reality continuing apace, Republicans nationwide are also resolutely pursuing their assault on the judiciary, including -- among many other matters -- attacks on courts that try to rein in partisan gerrymandering.  Imbued with a fervor fueled by Donald Trump's shameless denigration of "so-called judges" and other libels, Republicans are trying to impeach judges who rule against them even as they prevent judicial seats from being filled by Democratic appointees -- an obvious homage to the successful effort by Republicans in the U.S. Senate to steal a Supreme Court seat.

Meanwhile, Trump and congressional Republicans are doing everything possible to undermine the public's confidence in law enforcement and intelligence operations, successfully convincing their voting base that the FBI -- an organization run and supervised by lifelong Republicans and populated by an overwhelmingly Republican-voting work force -- is in cahoots with Democrats to frame Trump for treason.

It has become so bad that two passionately nonpartisan analysts have recently written that Republicans who care about their party and about conservatism itself must now decide to reflexively vote for Democrats, because that is the only way that genuine conservatism can regain a hold on America's right-wing party.

New York Times columnist David Leonhardt helpfully clarifies that this is not just about Trump but about the entire direction of the Republican Party over the past generation.  To amplify his point that this is not a Trump-only phenomenon, consider that the Republicans have become so habituated to dismissing the legitimacy of their opponents that they insist on referring (possibly unthinkingly at this point) to the "Democrat Party" rather than the "Democratic Party."  Such pettiness communicates disrespect.

Meanwhile, my latest column discusses none of that, focusing instead on an almost laughably narrow question that continues to fascinate law faculties: When we hire colleagues, should we hire the best scholar available or must we also take into account their teaching interests?  As I was writing that column, I knew that even the vast majority of people who have been to law school would not understand why that question is so important to people like me.

What does my column -- which has no apparent political valence and discusses matters that even law professors find tiresome -- have to do with the political debates in this country?

Thursday, February 08, 2018

Hamilton Versus Trump Part 2: Military Parade Edition

by Michael Dorf

Sarah Huckabee Sanders has confirmed that the Pentagon is drawing up plans for a huge/tremendous/biggest-ever/insert-Trumpian-adjective-here military parade modeled on (but better/huger/tremendouser/biglier than) the French parade that the Maximum Leader witnessed during his Paris vacation last summer. Because I am engaged in a semester-long project of reading the Federalist Papers cover to cover with my seminar students, I couldn't help but wonder what Alexander Hamilton would think about this idea.

Wednesday, February 07, 2018

How Trumpian Jujitsu Turns Bugs Into Features

by Michael Dorf

My latest Verdict column tries to make sense of Donald Trump's announcement during last week's State of the Union address that he plans to keep open the US prison at Guantánamo Bay. As I note in the column, the per-prisoner cost in dollars of holding alleged foreign fighters and terrorists at Gitmo is orders of magnitude higher than holding them in a US maximum-security prison, while the moral and PR costs are even higher. Accordingly, I conclude that Trump's decision--supported broadly by other Republicans and some Democrats--needs to be understood as based on something other than a calculation of costs and benefits. That other something, I suggest, is the value of Gitmo as a symbol.

For President Obama, Gitmo was a symbol of how the US lost its way under President GW Bush, a loss of faith in the rule of law. I argue in the column that Trump doesn't merely place less emphasis on the rule of law than Obama did, but that Gitmo is valuable as a symbol to Trump precisely because it symbolizes tough-guy tactics over the rule of law. For Trump, lawlessness and brutality are not regrettable costs of an otherwise justifiable policy. Lawlessness and brutality are the point. They are features, not bugs.

Tuesday, February 06, 2018

My New Article on Jurisdiction Stripping -- And Why It's Timely

by Michael Dorf

There has been much speculation lately about whether President Trump will attempt to fire FBI Director Wray, Attorney General Sessions, Deputy Attorney General Rosenstein, and/or Special Counsel Mueller. Taking any of these actions would flout the core principle that no one is above the law, but most such actions would be constitutionally permissible, because Wray, Sessions, Rosenstein, and Mueller are all employed within the executive branch. In my view, a well-designed government would not permit a high-ranking official to exploit his power over personnel to derail an investigation into his own alleged wrongdoing, but in this respect our government may not be well-designed. Or if it is, the problem may be that the only remedy is impeachment, which, for political reasons having nothing to do with the gravity of the wrong, is off the table.

But if the president has some power to root out resistance to his offenses within the executive branch, and if he encounters scant resistance, indeed support, from the legislative branch due to party loyalty and cowardice, surely there is one place in government where the president's power does not extend: the independent judiciary.

Maybe, maybe not. The president, acting alone, has no power to override the courts, but with the aid of a compliant Congress, he can do quite a bit. True, there are norms that stand in the way, like the norm against Court packing. But norms only hold until they don't, and if recent history is our guide, norms regarding the courts are up for grabs. If you don't believe me, ask Merrick Garland.

Accordingly, now may be a good time to turn to harder stuff than norms--by which I mean to turn to constitutional law--to find limits to the power of political actors to undercut judicial checks on their power. And it just so happens that I've written a new article on one aspect of that topic: The limits on the power of Congress to strip courts of jurisdiction.

Monday, February 05, 2018

Will Even Crazier Anti-Tax Arguments Go Mainstream?

by Neil H. Buchanan

One of the remarkable aspects of the Fall 2017 tax debate was Republicans' willingness to say with straight faces that "tax cuts pay for themselves."  It is true that some Republicans vacillated between saying that their tax cuts would completely pay for themselves (sometimes even claiming that cuts would more than pay for themselves) and saying that the offset would only be partial, but even the latter claim is also almost entirely wishful thinking (although it at least it concedes something to reality).

But some readers might be thinking, "Wait a minute, didn't the Joint Committee on Taxation (JCT) say that the $1.5 trillion cost of the bill would only be one trillion dollars after 'dynamic' effects were taken into account?"

Yes, but JCT reached that conclusion only by averaging three estimates, two of which were from respectable forecasters that showed (making generous assumptions) at best very small revenue effects while a third was produced by a famously partisan anti-tax shop.  There was no "liberal" offset to the ridiculously pro-conservative forecast that skewed the JCT's average estimate.

In any case, there are plenty of people drawing congressional salaries who are fully on board with the assertion that tax cuts entirely pay for themselves, an idea that not too long ago was rejected by even conservative economists as the ravings of "charlatans and cranks."  Now that the Republicans have gone "full charlatan," what other fully discredited ideas might they be willing to repeat endlessly?

Friday, February 02, 2018

The NeverTrumpers, Reasonable Politics, and Panic About the National Debt

by Neil H. Buchanan

The national debt is about to take center stage once again.  More accurately, an uninformed and opportunistic shouting fest about the national debt will soon consume Republicans and the pundit class in the United States.  These things never go well, and the next farce will probably outdo everything that has come before.

The reason that debt obsession will again grip the nation is that we are quickly reaching the date when the statutory debt ceiling will have to be increased to prevent an economic and constitutional crisis.  We are currently living through another period in which the Treasury Department is using so-called extraordinary measures to allow the government to pay the bills that it has already incurred, measures that had been forecast to run out in late March or early April.

But because Republicans front-loaded some of the cuts in their disastrous and regressive tax bill -- and especially because Donald Trump's Treasury is dutifully changing withholding rules so that people "see" their beautiful tax cuts right way -- fewer revenues are coming into the government's coffers, making it necessary to deplete the remaining budgetary slack more quickly.

We are now looking at a drop-dead date of early March, or about one month from now.  Before we reach the point where there is an imminent crisis, however, I want to take an opportunity here to discuss whether there are people on the political right in this country who would be willing to have a sane conversation about budget deficits and the national debt (or, for that matter, about anything at all).

Thursday, February 01, 2018

Stings, Scams, Ag Gag, and the Future of Undercover Journalism

by Michael Dorf

Blogs and scholarship move at different paces. Almost exactly a year ago, I noted that Prof. Sidney Tarrow and I had posted an article on SSRN with the provocative title Stings and Scams: ‘Fake News,’ the First Amendment, and the New Activist Journalism. As I noted there, the paper uses the effort by anti-abortion activists to show Planned Parenthood officials allegedly selling fetal body parts as an entry point to discuss the interaction of First Amendment doctrine with the changing landscape of activist journalism. That article is now finally in print and also available online as published in the University of Pennsylvania Journal of Constitutional Law.

Although it has only become available in the last couple of weeks, the article bears a 2017 publication date, and we finished our final edits late last year. As a result, the article does not address a potentially important Ninth Circuit case that was decided a few weeks ago. As we note in the article, a federal district court struck down Idaho's "Ag-Gag" law, i.e., its statute criminalizing the use of false statements to gain access to agricultural facilities and to audio-record or video-record what occurs there (among other things). In Animal Legal Defense Fund (ALDF) v. Wasden, a panel of the Ninth Circuit affirmed key parts of that ruling.