Thursday, March 22, 2018

A Latent Question in Zervos v Trump: Why Don't We See More Delayed Legislation?

by Michael Dorf

Earlier this week, NY State trial court Judge Jennifer Schecter denied President Trump's motion to dismiss or delay proceedings in the defamation lawsuit against him by Summer Zervos--a former Apprentice contestant whom Trump branded a liar in 2016 after Zervos publicly claimed that Trump had groped her without consent. Judge Schecter's opinion relies on Clinton v. Jones, which held that a sitting president lacks either full or temporary immunity from litigation for unofficial conduct preceding his taking office. In Jones, the Court left open the possibility that a different rule might apply in state court, because considerations of federalism and the supremacy of federal law, rather than separation of powers, would be in play. Judge Schecter concluded that the question left open in Jones should be resolved against any form of temporary immunity.

Judge Schecter's opinion makes two key points. First, she says that concerns about distracting the president from his official duties are the same in state court as in federal court; thus, the Supreme Court's conclusion that such distraction does not warrant full or temporary immunity in Jones carries over in state court. Second, Judge Schecter distinguishes cases finding that Supremacy Clause concerns warrant limiting the jurisdiction or remedial authority of state courts all involve fear of interference with the official functions of the United States; because Zervos has sued based on Trump's private conduct before he became president, those concerns are not implicated.

In the balance of this post, I want to consider some implications of a subsidiary argument that Judge Schecter makes. As the Jones Court itself did, she takes note of the fact that Congress has granted temporary immunity to members of the US armed forces during their service, so one can infer from Congress's failure to grant similar immunity to the president that it did not intend it. Jones has been on the books for over twenty years. Congress's inaction is thus telling.

But is it really? Given partisan considerations, one could see how, except in periods when one party controls the presidency, the House, and 60 seats in the Senate, there would be no political will to enact a provision granting the president partial immunity--even if an overwhelming majority of elected officials thought it a good idea in general.

Wednesday, March 21, 2018

Is Marriage a Fundamental Right "in Equal Protection"

by Michael Dorf

In my latest Verdict column, I discuss bills in Alabama and other states that would eliminate the obligation of couples seeking to marry to obtain a marriage license from a state or local official. Although these proposals have been touted as a means by which states can evade the obligation to permit same-sex marriage, I note that they don't go nearly that far. They would abolish marriage licenses; they would not abolish marriage itself.

But what if a state were to abolish marriage as a legal status for everyone? Would that be unconstitutional? I first consider the equal protection objection. To evaluate that requires grappling with the extent to which Palmer v. Thompson remains good law. Palmer upheld Jackson, Mississippi's closing of all public swimming pools in response to the obligation to desegregate its public swimming pools. Although I think Palmer was wrongly decided on its facts, I argue that the general principle it articulated--that a facially neutral law adopted for a discriminatory purpose only violates equal protection if it also has a disparate impact--remains good law, at least for now.

My column next turns to the liberty claim. Obergefell v. Hodges rooted the right to same-sex marriage chiefly in the fundamental right to marry under the doctrine of substantive due process. Assuming that's correct, then denying the right to marry to everyone in a state would obviously be unconstitutional. But is it right? Justice Thomas argued in dissent in Obergefell that marriage is not an exercise of "liberty" in the same way that other fundamental rights are. Those other rights protect against government interference. The marriage right protects a right to state recognition. Given that we have a mostly classical liberal Constitution that protects negative rights, a fundamental right to marriage looks like an anomaly.

In the column, I suggest that an affirmative right to marry is not necessarily ruled out by the Constitution's text and that it would hardly be disruptive. States and their predecessors have recognized marriage for some people since colonial times. But my column concedes that it is technically an open question whether the fundamental right to marry would be violated by a law denying marriage to everyone.

Here I want to explore another possibility? What if marriage is a fundamental right "in equal protection?" To do so requires that we first examine that oxymoronic-sounding category of constitutional rights.

Tuesday, March 20, 2018

What Should Hillary Clinton Do (or Not Do) Now?

by Neil H. Buchanan

Last week, in "Hillary Clinton and the Heckler's Veto," I concluded with some sadness that the Hillary haters have won their war.  That is, even the Clinton detractors who are not Trumpian "Lock her up!" types have been so unfairly negative about Clinton for so long that her every utterance is now immediately shredded and recharacterized in absurd ways.  Although it should not have come to this, we have reached the point where Clinton can only make matters worse by saying or doing anything.  Anything at all.

As I pointed out, hatred of Clinton is such that she is also criticized when she does not say something.  That kind of criticism typically runs along these lines: "Oh, and if Hillary Clinton really cared about _____, shouldn't she have bothered to weigh in on this latest controversy by now?  Huh?  Shouldn't she?!"

The people who hate her -- and I am very much including reporters for The Washington Post and The New York Times, who took the worst behavior in the movie "Mean Girls" as a template for political reporting on Clinton -- never seem to feel so good as when they have fresh material from her to criticize.  And when she fails to deliver, they hate her for that, too.

My question today is what Clinton should now do in such a hostile environment.  When the hecklers are this relentless and unfair, and when action and inaction alike are taken as provocations by her detractors, how should she act?

Monday, March 19, 2018

Remembering Julie Hilden

by Michael Dorf

Julie Hilden -- lawyer, author, and editor -- passed away on Saturday. She was my friend for over 30 years. Julie combined a fierce intelligence with incredible kindness. Her work was brutally self-critical even as she was extraordinarily generous to others. I'll try to paint a picture of her life and work, but this is also a personal remembrance.

Sunday, March 18, 2018

Even If McCabe Committed Wrongdoing, He Was Likely Fired for "This Russia Thing"

by Michael Dorf

A number of commentators who are not simply apologists for Donald Trump have been arguing that the firing of Deputy Director Andrew McCabe by (supposedly recused) AG Jeff Sessions cannot have been a simple political hatchet job, because it was based on a recommendation of the Department of Justice Inspector General, a nonpartisan professional who was appointed to his current position by President Obama. I think they're making a straightforward logical error.

McCabe contends that he did nothing wrong. Maybe he's right about that. Let's assume for the sake of argument, however, that he's wrong. In other words, let's stipulate that if and when the report of IG Michael Horowitz is made public, it contains smoking-gun evidence that McCabe committed the wrongs that have been publicly alleged and that these are firing offenses, even for someone who is barely a day away from retiring with full benefits. Nonetheless, it is possible -- indeed, given Trump's very public campaign to discredit the Mueller investigation and anyone who could aid it, it is likely -- that the evidence contained in the IG's report was not the actual reason McCabe was fired.

The firing of James Comey closely parallels McCabe's firing.

Deputy AG Rod Rosenstein wrote a letter detailing how Comey's mishandling of the investigation of Hillary Clinton's emails--especially his public comments on the investigation--was a serious breach of policy warranting dismissal. Trump then fired Comey, initially claiming that he did so based on Rosenstein's report. But that was obviously just a pretext. As Trump himself soon boasted, he would have fired Comey without the Rosenstein recommendation. Why? Because of "this Russia thing."

Likewise, IG Michael Horowitz prepared a report detailing how McCabe's mishandling of the investigation of Hillary Clinton's emails--especially his authorization of comments to the media on the investigation--was a serious breach of policy warranting dismissal. Sessions, who had good reason to fear that Trump would fire him if he did not act against McCabe, then fired McCabe, claiming that he did so based on Horowitz's report. But that is likely just a pretext. Trump hasn't yet publicly boasted about it quite so explicitly as he did with Comey (although he has come close), but the most logical explanation for McCabe's firing--even assuming that he was fireable--is "this Russia thing."

Friday, March 16, 2018

How Scalia Saved Originalism By Destroying It

by Michael Dorf

Linda Greenhouse writes in The New York Times that Justice Scalia's legacy has already begun to unravel, as the SCOTUS--hitherto reluctant to cite legislative history in its statutory interpretation cases--has embraced legislative history since his death.  Greenhouse goes on to say that this development undercuts Scalia's lasting impact overall. She contends that Scalia wrote few memorable  majority opinions, citing DC v. Heller as a notable exception. She acknowledges that Scalia's admirers say his main legacy was "his insistence on originalism in constitutional interpretation and textualism for statutes." Yet, Greenhouse says, "[d]ebates over how to read the Constitution preceded Antonin Scalia and will be with us forever," thereby implying that Scalia's contribution to constitutional interpretation is negligible. And with the "debate about legislative history" that Scalia sparked "a fading memory," Greenhouse concludes that Scalia's legacy as a whole is fading.

Greenhouse's assessment of Scalia's legacy in statutory cases is premature. Meanwhile, I think she misunderstands Scalia's views about constitutional interpretation and thus also misunderstands his legacy there.

Thursday, March 15, 2018

Hillary Clinton and the Heckler's Veto

by Neil H. Buchanan

The "heckler's veto" describes a situation in which a person's speech is effectively silenced by the reactions or anticipated reactions of people who disagree with the speaker's views.  The threat of hostile reactions, up to and including violence, causes people to choose (under duress) not to speak or authorities to tell them not to speak.

Has Hillary Clinton's very existence become an especially pointed version of the heckler's veto?  It has long been obvious that her every word will be distorted by her detractors and that she will be held to mutually contradictory standards.  And now, finally, it appears that she simply cannot make an argument without her words being completely misconstrued and her motives impugned, so much so that she would be better off saying nothing.  (Perversely, she would then be criticized for her silence, but that is par for this course.)

I offer these thoughts in the light of a recent mini-kerfuffle over comments that Clinton made in an appearance in India, comments in which she again tried to describe why she lost the 2016 presidential election.  Inevitably, her remarks were deliberately misunderstood by conservatives and liberals alike.  Her critics are so relentless that they have succeeded in making it wiser for her never to speak again.  No matter what one thinks of Clinton, that is a serious problem.

Wednesday, March 14, 2018

Hamilton Versus Trump Part 4: "talents for low intrigue, and the little arts of popularity"

by Michael Dorf

My "Hamilton Versus Trump" seminar is now firmly back in Hamilton territory. This week's reading included Federalist 68, in which Hamilton defends the Electoral College on the ground that its (small-r) republican mechanism rather than a (small-d) democratic process will generally lead to the election of statesmen rather than demagogues. The Electoral College mechanism, he writes:
affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.

Tuesday, March 13, 2018

Does Animal Rights Advocacy Frustrate Human Rights?

by Sherry F. Colb

My Verdict column for this week explores the question whether the causes of human rights and of animal rights are in some way incompatible with each other. Are those who support animal rights either hostile or indifferent to human rights? And have human rights achievements made it more difficult to advocate for animal rights? In this post, I want to consider one reason for the perception among some audiences that animal rights may be incompatible with human rights. The reason is a subset of what Professor Gary Francione has dubbed "single issue campaigns." 

Single issue campaigns are attempts to persuade an audience that a particular type of animal exploitation is especially immoral and must stop. Sometimes, single issue campaigns have no implications for human rights, one way or the other. Advocacy against foie gras may represent one example. But on occasion, a single-issue campaign will select a form of animal exploitation that seems mainly to involve people of a particular race, religion, or sex. In such cases, it might appear that animal advocates are comfortable relying on bigotry to reach their goals.

Monday, March 12, 2018

Hollywood Bashing and the Gun Debate

by Neil H. Buchanan

Proposals to arm teachers or create larger security presences in schools are highly unpopular, opposed by teachers themselves (who would presumably be among those with the most self interest in this debate) as well as those who study school violence.

Even in Florida, where gun love has always run to extremes and where one might have expected the public response to the Parkland shootings to include calls to give teachers guns, the public at large -- by a decisive majority (56-40) -- is against arming teachers and school officials.

Actually, of course, some opportunistic politicians have been calling for arming teachers and adding (more) armed guards to American schools.  And the unpopularity of that idea is, as is always true in American debates about guns (and taxes, and the environment, and ...), not stopping Republicans from moving forward with bad proposals.

When the Republicans who dominate Florida's government surprised everyone by passing a modest but nontrivial gun-control law (while still failing to ban assault weapons or high-capacity magazines, of course), they excluded teachers from their new "school marshal" program, but they did move forward with that program, in spite of (because of?) the warnings from experts that such programs inevitably target students of color for harassment and worse.

There is also the possibility that, in the chaos of a school shooting, armed school staff -- again, especially those who are from minority groups -- would be seen by police as perpetrators and not protectors.

It is nonetheless not a surprise that, having recovered from his brief flirtation with actual gun control, Donald Trump has decided to push for more guns in schools as his administration's only semi-specific proposal to deal with mass shootings.

This is consistent with Trump's longstanding enthusiasm for the idea of a hero with a gun saving the day.  Although he was rightly mocked for claiming that he would have run into the school in Parkland even without a gun, Trump embraces implausible scenarios in which good people shoot bad guys dead, making everything right again.

Trump is, of course, hardly alone in his faith in a hero on a white horse solving all problems with a "peacemaker."  But where does this fantasy come from?  Yes, I am going to blame Hollywood.

Friday, March 09, 2018

Even a Little Bit of Power Needs to Be Exercised Responsibly

by Neil H. Buchanan

The noted philosopher Ben Parker (uncle to Peter Parker, aka Spiderman) once said: "With great power comes great responsibility."  Or maybe it was Voltaire who said that.  In any case, it would seem to follow that with some modicum of power comes a requirement at least not to act irresponsibly.  And among people in academic circles, having even a modicum of power is actually rather rare.

Consider Paul Krugman.  He is the most honored economist of his generation, the only economist ever to have won both of the field's top prizes.  He also has a preternatural ability to communicate clearly and concisely -- an ability that is, to put it mildly, not nurtured by economics training -- such that he was given a perch as a regular columnist on the op-ed page of The New York Times.

Combine serious academic chops with a good bullhorn and the ability to use it, and good things ought to happen.  Krugman also had the good luck, if one can call it that, of having access to his bullhorn during the worst economic crisis in three-quarters of a century.  Even though he is quite good at writing on most other topics, the Great Recession and its aftermath were tailor-made for him to have an impact.

And boy oh boy, he tried.  Week after week, month after month, and year after year he called out hack economists on the right for ignoring evidence that contradicted their dogma, called upon a Democratic president to be bolder in dealing with the damage that timid policies and Republican obstructionism were causing, and laid out a case for a surprisingly simple and powerful approach to reducing human misery.

Did Krugman's prodigious efforts have any impact at all?  Perhaps, but one would be hard pressed to prove it.  Certainly, policy moved overwhelmingly in the opposite direction of Krugman's prescriptions, with even ideological allies like now-former Federal Reserve Chairwoman Janet Yellen ignoring Krugman's advice to hold off on tightening monetary policy until "we can see the whites of inflation's eyes."

It is certainly possible that Krugman's interventions made matters less bad, causing the Obama Administration to take stronger stands even in retreat and the Fed to delay raising rates longer than it otherwise might have.  But if that is the most that one might hope to find regarding Krugman's impact on the world, that is a rather meager payoff from what seems like a powerful position.

What does that say about other academics who operate in the mortal realm?

Thursday, March 08, 2018

Is Trump's Twitter a Public Forum and the Limits of the Law

By Eric Segall

On Thursday, various plaintiffs argued in New York federal court that President Trump does not have the right to block people on Twitter. This issue is enormously difficult, has serious implications, and also demonstrates the limits of "legal reasoning."

Does the "Essential Role" Theory of Appellate Jurisdiction Survive Patchak v. Zinke?

by Michael Dorf

Last week's SCOTUS decision in Patchak v. Zinke raised but ultimately did not resolve two of the most fundamental questions about the power of Congress to limit the jurisdiction of the federal courts: (1) Where is the line between acts of Congress that permissibly change the law applicable to pending and future cases versus acts that impermissibly dictate the result in a particular case?; and (2) What limits does the Constitution place on Congress's ability to exclude cases from the federal courts' jurisdiction?

In my latest Verdict column I discuss the Court's treatment of the first question. Here I'll consider what the Court says about the second. Patchak does not definitively answer either question, because there is no majority opinion and the concurrences in the judgment (by Justices Ginsburg and Sotomayor) would resolve the case on wholly different grounds. However, what the plurality opinion of Justice Thomas says about the second question is troubling, and because the dissent of Chief Justice Roberts takes issue mostly on the first question, there is no response to some of the broader implications. I'll try to fill that gap.

Wednesday, March 07, 2018

The Italian Job -- And Its Ironies

by Sidney Tarrow

On March 4th, Italy underwent one of its many “crises” — a term that is sometimes overused on the peninsula, but which seems to have been fitting this time. After over two decades of what political scientists called “The Second Republic,” Italian political life was turned upside-down.

First, the governing center-left PD crashed and burned, losing almost half of its votes and suffering the resignation of its unpopular leader, Matteo Renzi.

Second, coming from almost nowhere since its creation by a noted comic, Beppe Grillo, in 2009, a party called the “Five Star Movement” (M5S) captured a third of the electorate, emerging from the election as the largest single party. Under normal circumstances, this would have made it the logical first choice to form a government, but the M5S asserted throughout the campaign that it would refuse to coalesce with any of the other parties; at this writing, it has still not broken that pledge.

Third, since much of the campaign turned on the issue of undocumented immigrants — hundreds of thousands of whom landed on Italy’s shores over the last few years — a once-regional party, the Lega, which had represented northern interests, but now embraced a Trumpian denigration  of immigrants, came in third — well ahead of its ally, Silvio Berlusconi, the billionaire businessman whose four terms as Prime Minister had shaped the Second Republic. The campaign was marked by violence of language and action, and the results were structured by a new and untested electoral system that Renzi had designed to keep his party in power. No wonder he resigned the morning after the PD’s defeat!

Tuesday, March 06, 2018

When Should Liberals Try to Remove Judges From the Bench?

by Neil H. Buchanan

Judges inevitably make some decisions that outrage people.  The timeless question is when a decision crosses a line into territory that rightly calls for a judge's removal from the bench.  Calls for judges to be deposed have more typically been heard among conservatives in the U.S., but the question comes up regularly among liberals as well.

Even in states where judges are elected, those judges are in various ways protected from the prevailing political winds through a number of counter-majoritarian measures (nonpartisan elections, appointment followed by retention elections, and so on).  Non-elected judges are even more politically independent, especially at the federal level, where the standards for impeachment were quite deliberately set at a high level.

In the abstract, therefore, everyone accepts the idea that judges cannot simply be politicians in robes.  Three recent incidents, however, provide potentially useful insights in addressing the question of when (not if, because there seems to be no serious argument that a judge should never be removed for misconduct on the bench) a judge must go.

Monday, March 05, 2018

What is Narrow Tailoring in Religious (and Speech) Exception Cases?

by Michael Dorf

Last Friday saw the release of an unpublished opinion of a 3-judge appeals court panel in the Colorado case of People v. Ray. The very fact that the decision is unpublished suggests that it does not decide a novel issue--and it doesn't--but thinking about this seemingly obviously correct decision may prove interesting for thinking about a different class of cases.

The facts are simple enough. Greta Lindecrantz was called by the prosecutor to testify at the state post-conviction hearing of Robert Ray, who had previously been found guilty of murder and sentenced to death. Lindecrantz is a Mennonite. She said that her truthful testimony would likely lead the court to find that, contrary to Ray's claim, he received effective assistance of counsel, which in turn would lead to his death penalty being affirmed, which in turn would render her complicit in his execution, in violation of her religious beliefs. Lindecrantz was held in contempt, which she challenged on free exercise grounds. She lost. The question I'll explore is how one of the grounds for her loss might apply in cases in which people seek exceptions to anti-discrimination law.

Thursday, March 01, 2018

Simple Politics and Gun Control

by Neil H. Buchanan

What kind of gun legislation would result from straight-up democracy?  That is, if there were no constitutional constraints and our system were allowed simply to run its course through normal political competition, what would our gun laws look like?

It has been barely more than two weeks since the Parkland killings turned the U.S. political debate on its head.  Some Republicans seem to be rethinking their once-politically-safe genuflection to gun absolutists, and at least for now, many large businesses are moving in the right direction.

Donald Trump, of course, has said all kinds of things, most of them ridiculous (including his "confiscate first, due process second" approach to gun control); and even though he recently said some things that might be cause for optimism, there is every reason to believe that he will backtrack and ultimately side with the right-wing extremists.

Even in this new and unexpected chapter in the story of American gun politics, I have said repeatedly that I still do not expect anything big to change.  I confess, however, that every day I have become slightly more optimistic that at least a few minimal things might actually change for the better.

But again, the question I want to ask here is what would happen if the country suddenly stopped viewing the gun debate as a constitutional question and simply let politics play out.  Where would we end up?  My best guess is that we would stop far, far short of adopting anything resembling serious gun control measures.

Animal Agriculture and the Non-Identity Problem

by Michael Dorf

On Saturday, Prof. Colb and I will be speaking at an animal rights conference at Bucknell University with a focus on approaches to the topic that aim to abolish animal agriculture. Our topic is "Who Benefits From Abolition?" It is framed as a response to a particular sort of objection to the case for veganism. Consumers of animal products sometimes say that their acts are harmless or even beneficial to the animals whose parts and products they consume, because those animals otherwise wouldn’t have existed. This claim appears to raise what philosophers call the non-identity problem.