Friday, August 31, 2018

Trump's Unwarranted & Dangerous Attack on Google Inadvertently Raises a Serious Issue

by Michael Dorf

On Tuesday, President Trump tweeted that Google had "rigged" its search results to yield only "fake news" -- i.e., accurate stories from reputable sources that portray him in a negative light -- when one searches for news about him. He added that this "very serious situation . . . will be addressed." Later that day, Trump extended his warning to Facebook and Twitter, which he apparently believes are also rigging their algorithms to promote anti-Trump "fake news" at the expense of more pro-Trump sources.

The accusation is almost certainly nonsense. I say "almost certainly" because Google does not make its algorithm public, and so it is impossible to know for certain that deep within it there is no line of code that favors anti-Trump stories, but Google has certainly denied any such "rigging." Facebook and Twitter are a bit different. As social media sites, their algorithms give prominence to material shared and liked by others one likes and/or follows. Consequently, someone who is liberal will find stories that skew liberal; someone who is conservative will find stories that skew conservative; and someone who only likes cat videos will find stories that skew feline. But there appears to be no evidence that any of these tech companies is deliberately skewing the results--except to the extent that reality has a liberal bias.

Accordingly, in the current environment, one can best understand the Trump accusation and threat as an effort to chill speech. If Trump were to follow up on his threats--as Larry Kudlow has suggested he might--that would be a clear First Amendment violation, although proving that any regulatory action undertaken by the Trump team was motivated by the aim of censorship would be tricky. As I wrote last November, I thought that there was sufficient evidence that Trump's DOJ was seeking to block the AT&T/Time Warner merger as a result of Trump's attacks on CNN to warrant discovery. However, the district judge ultimately kept such evidence out. And the SCOTUS travel ban decision this past June suggests that we have entered an era in which judges feel it is not acceptable to admit that the current president routinely acts out of unconstitutional motives, even when he repeatedly says that's exactly what he's doing.

Suppose, however, that Trump were right. Suppose that Google and Facebook actually were deliberately skewing their algorithms to show users anti-Trump material and to suppress pro-Trump material. That would not be unconstitutional, of course, because Google and Facebook are private actors to which the First Amendment does not apply. But might the government be able to block them from doing so without violating their First Amendment rights? That is the serious issue that Trump has inadvertently raised. The answer is not entirely clear.

Thursday, August 30, 2018

Honesty Is Also the Politically Savviest Policy

by Neil H. Buchanan

Amid the unending supply of dishonesty and outright sleaze emanating from the Trump White House -- which, to restate the obvious, differs from the last few decades of Republican practice only in degree, not kind -- it is sensible to wonder whether the Republicans' political success is an argument for Democrats to honor their opponents by copying them.

Maybe Michelle Obama's famed maxim, "When they go low, we go high," was a nice thought that has been proved not to work.  All three branches of the federal government and most state governments are now doing serious damage under Republican leadership.  What good did going high do for Democrats (or the country)?

I have certainly argued many times that Democrats should not unilaterally disarm, but my point has generally been that they should not compromise on policy positions in a foolish way.  The classic problem has been that Democrats -- especially of the Democratic Leadership Council right-centrist stripe (which is now embodied in the misbegotten Third Way group) --  formulate their proposals by negotiating against themselves and then move further to the right from there: "Well, we can't ask them for what we really want, of course, so let's show our good faith and go more than half way.  Oh wait, they're asking for still more?  I guess we have no choice."  See, e.g., the Obama stimulus.

Even when Democrats actually have power, they give away the store.  Long before Barack Obama became the new embodiment of the let's-not-be-too pushy approach -- not just on the stimulus but also with respect to financial regulation and his decisions not to investigate war crimes or prosecute Wall Street malfeasance, to say nothing of his "deporter in chief" immigration enforcement -- Bill Clinton actually signed the most watered-down version possible of the Family and Medical Leave Act after he explicitly refused to go back to a stronger version that the first President Bush had refused to support, but that Congress would have put on Clinton's desk.  Retaking ground seemed impolite.

In some sense, of course, Democrats have been learning lessons over time and becoming more assertive, but Obama's caution in dealing with the FBI's 2016 investigation of the Trump campaign's Russia ties was a perfect example of what we might call the Ruthlessness Gap.  Republicans freaked out about a quick conversation between Bill Clinton and AG Loretta Lynch but then threatened to scream "partisanship" if the evidence against Trump had been released.

Is now the time when Democrats must become the doppelgangers -- strategically, of course, not substantively -- of their opponents?  Is sleaze the only effective response to sleaze?  Happily, it now appears that Democrats have a chance to defeat Republicans by rejecting their cynicism.  It is possible, at long last, that virtue is a virtue.

Wednesday, August 29, 2018

Voluntary and Involuntary Trigger Warnings and the Freedom of Speech

by Sherry F. Colb

In my column for this week, I discuss trigger warnings, notifications by university faculty to students that they will be reading (or attending a lecture containing) material that could be very upsetting or disturbing. Warnings might precede presentations about such topics as sexual assault, child molestation, or wartime violence. Part of my discussion centers on the likely impact of an obligation to give warnings on the faculty who have to (or feel obliged to) give them and therefore on the materials that faculty choose to present.

In this post, I want to consider the different ways in which people might feel forced to say or do something that they would rather not say or do. As a professor in a university, a person would plainly feel the press of coercion if she received a communication from one of her superiors ordering her to give trigger warnings prior to any discussion of rape. That would be one way to compel compliance with a trigger warning policy, a policy that I suggest in my column would be substantively misguided in a variety of ways.

Tuesday, August 28, 2018

A New Angle in the Trump Scandals

by Neil H. Buchanan

When commentators review the litany of, shall we say, the problematic aspects of the emergence of Donald Trump as a political force, the list almost always includes Trump's absolute refusal to release his tax returns.  That refusal, we now know, was only the leading edge of examples of "rules of the game" that Trump would ignore, proving again and again how often we have relied on voluntary (or merely reputationally enforced) rules that truly matter but that never needed to be formally enacted into law.

I am hardly the only tax scholar who is of mixed feelings about that particular Trumpian refusal.  On the one hand, I most definitely understand the importance of norms, and seeing a candidate's or president's tax returns gives citizens the ability to get a sense of that person's honesty and integrity.  That is surely why, for example, Elizabeth Warren recently put ten years of her tax returns up for public inspection on a website.  And good for her, both in terms of politics and simple decency.

Despite its importance, however, the controversy over Trump's tax secrecy has always been accompanied by an overblown sense of what we would learn if or when his returns finally become public.  No, we will not be able to figure out whether he is truly a billionaire, for example, and unless his people are even more shockingly incompetent than they seem to be, the tax returns will not include items with notations like: "Deduction for payment to secret Putin account -- Thanks for the collusion!"

Even when tax issues have come up during Trump's time in office, claims that "we now really need to see his taxes" were only partly persuasive.  After all, people could say that 2017's changes in partnership tax law and all but gutting the estate tax were not just terrible policy but were especially generous to people like Trump precisely because of what we already know about Trump.  Details can be interesting, but we knew all along that he is lining his pockets and that Republicans are happy to help him do it (as long as they and their owners get a big slice, too).

At long last, however, we now have a situation in which seeing Trump's tax returns would be indispensable in determining a specific (and otherwise nearly impossible to verify) crime or set of crimes.  As so often happens with questions of tax law, the details are perversely fascinating.

Monday, August 27, 2018

Trump EPA's Affordable Clean Energy Plan Would Be More Aptly Titled the Coal Energy Plan

by Michael C. Dorf

Last week the Environmental Protection Agency announced a proposed new rule governing emissions from existing power plants. The proposed rule--titled the Affordable Clean Energy (ACE) rule--would substitute for the Obama administration's Clean Power Plan (CPP), which the Trump administration had previously announced that it proposed to repeal (and which had not yet gone into effect, thanks to a 2016 Supreme Court order staying it so that lawsuits seeking to block it could proceed first). CPP was the Obama administration's domestic effort to live up to the US's obligations under the Paris Climate Accord. With Trump having withdrawn the US from the Paris Accord, he felt no need to keep it in place--and has been affirmatively hostile to it in order to favor his supporters in the coal industry.

Of course, the proposed repeal of CPP does not actually state that it is a giveaway to coal executives and miners. Instead, the EPA under Trump contended that CPP exceeded the agency's statutory authority and imposed costs that were not commensurate to its benefits. "Clean Air is Unaffordable to Coal Industry" would have been a more accurate description of the Trump policy than the misleading "Affordable Clean Energy."

Readers who never studied (or forgot what they learned in) administrative law may be wondering why I refer to the Trump actions as proposals rather than as actions. The answer is a combination of the Administrative Procedure Act and the Clean Air Act, which impose various procedural hurdles--including the possibility of lawsuits--to agency actions, including some repeals of existing regulations.

In a moment I'll dive a little further into the weeds of what the EPA is doing here, but I should say first that I agree with the big-picture account one sees in the press. CPP repeal and ACE adoption would confer massive benefits on the coal industry, thus substantially undercutting what had been a serious effort to reduce greenhouse gas emissions from power plants. And because the technologies that reduce greenhouse gas emissions typically also reduce emissions of toxic pollutants, CPP repeal and ACE adoption would result in substantial harm to human health. As the NY Times reported last week, the Trump EPA's own calculations indicate that the shift from CPP to ACE would result in 1,400 additional deaths per year, due to fine particulates.

Friday, August 24, 2018

Our Most Posnerian Justice

By Eric Segall

See if you can identify this person. He was one of this country's most important judges before he recently retired.  He is a white male from an educated family who grew up in one of our most populous states. He grew up a Republican, but his judicial decisions on social issues did not reflect the politics of the current GOP. He came of age before the Federalist Society came into existence. His opinions were often non-originalist and non-doctrinalist. He was fiercely independent. Who is he?

If you first guessed Richard Posner, that would be correct. If you guessed Anthony Kennedy, you'd also be correct.

Thursday, August 23, 2018

The S-word: The Ineffectiveness of Republican Cries of 'Socialism'

by Neil H. Buchanan

In my Dorf on Law column two days ago, I expanded on my argument that NeverTrump conservatives now face a put-up-or-shut-up moment.  Whereas the standard commentary argues that liberals and progressives must not go "too far to the left," the reality is that NeverTrumpers must go wherever the Democrats take them, because no disagreement on specific policy issues (minimum wages, free college education, Supreme Court appointments) is more important than the preservation of constitutional democracy.

That column was part of my response to the emergence of "democratic socialism" among some Democrats and the Republicans' frantic attempts to use the word "socialist" as a scare tactic to woo swing voters.  My point was that honest people know that democratic socialism is a modest version of what is standard practice in most of Europe's richer democracies, not an attempt to go back to Stalinist gulags.  The people who know better -- most definitely including NeverTrumpers -- have a profound responsibility to educate people and push back against Republican slander.

I continued to make the substantive point that the American left is anything but extreme in my Verdict column today, where I discussed progressive icon Elizabeth Warren's recently proposed Accountable Capitalism Act, which is a crystal-clear example of her commitment to fix capitalism, not overthrow it.  Insinuations that the left wing of the Democratic Party is somehow anti-capitalist -- "If they're socialists, they can't be capitalists!" -- are simply wrong.

Even so, I am happy to report that it is possible that all of my concerns about a Republican smear campaign based on the dreaded S-word will not matter at all.  Even if voters become (wrongly) convinced that every Democrat is a socialist, it is possible that it simply will not matter.  In the end, plenty of voters might simply not be turned off by the socialist bogeyman.

Wednesday, August 22, 2018

I Discuss "No Means No" and "Yes Means Yes" on South Korean Radio

by Sherry F. Colb

Apparently South Koreans are reconsidering the law governing sexual assault. I went on the radio there (via phone) to join the conversation (in English). You can listen here.

How Will Republicans Try to Render Kavanaugh's Lewinsky Memo Irrelevant?

by Michael C. Dorf

My latest Verdict column unpacks and critiques the justification then-attorney Brett Kavanaugh gave in his recently released 1998 memo to Ken Starr for not "going easy" on President Bill Clinton and instead proposing to ask Clinton such dignity-of-the-office-restoring questions as this: "If Monica Lewinsky says that you masturbated into a trashcan in your secretary's office, would she b[e] lying?" Kavanaugh said he was outraged by Clinton's behavior, which warranted the tough questions. The ostensible point of these questions was to show that Clinton had lied in his deposition in the Paula Jones case when he denied a sexual relationship with Lewinsky. As I explain in the column, that won't wash. It would have been simple to ask questions of Clinton that would expose him as lying without proposing seven out of ten questions focusing on precisely what sex acts were performed where.

In my column, I consider the possibility that the 1998 memo by attorney Kavanaugh is not relevant to the confirmation of Judge Kavanaugh to be Justice Kavanaugh today. I discuss a 2009 Minnesota Law Review article in which Judge Kavanaugh explained that, after serving as staff secretary for President George W. Bush, he had come to appreciate the demands of the office of the presidency in a way that he had not fully appreciated at the time of the Starr investigation. Nonetheless, I conclude, Kavanaugh's 1998 memo remains salient today, because the Minnesota Law Review article proposed new statutory protections for the president but contended that Starr had acted properly given the law as it existed in 1998. Because Congress has not enacted the statutes Judge Kavanaugh proposed, the law as it existed in 1998 is, in the relevant respects, the same as the law today. Hence, Kavanaugh's 1998 views are a proper source of questions.

Despite the foregoing, I expect that during the confirmation hearing, Judge Kavanaugh and/or his Republican defenders will cite the 2009 Minnesota Law Review article as a basis for dismissing the 1998 memo to Starr. Part of my purpose in writing the Verdict column was to give interested Democratic Senators a basis for challenging that dismissal.

In the balance of this post, I want to respond to some other lines of defense that Judge Kavanaugh and sympathetic Senators might use to deflect questions about the where-did-Clinton-ejaculate memo and other potentially damaging material from his time working for Independent Counsel Ken Starr and in the Bush II White House.

Tuesday, August 21, 2018

What Do Anti-Trump Conservatives Owe to Future Generations?

by Neil H. Buchanan

The word socialist has again become one of the talking points that Republicans are using against Democrats.  With some progressive Democrats now following Bernie Sanders's lead and calling themselves "democratic socialists," there is worry on the left and hope on the right that Democrats will lose some voters who would otherwise be open to persuasion.

I plan to analyze this issue in two ways.  In today's column, I will expand on a point that I made in my most recent Dorf on Law column, in which I stated that anti-Trump intellectuals who are to the right of the political center bear a special responsibility to educate centrist and right-of-center voters about the non-scary reality of what the democratic socialist label actually means.

In short, it is not just liberals who must write columns with titles like: "It’s Time to Reclaim ‘Socialism’ From the Dirty-Word Category."  That should now be what NeverTrumpers spend their time doing.

In Thursday's column, I will explain why the red-baiting in which Republicans are gleefully engaging is unlikely to be particularly effective with the younger voters who have the power to turn the 2018 midterms in the Democrats' favor.

The larger point of these two columns is that, although I continue to regret the risks and the energy that it will take to neutralize the potential downsides of reintroducing the word socialist into mainstream political conversations, the reality is that this now has to be done -- and it actually need not be a problem.  It will, in fact, be a net positive going forward to have defanged one of the right's favorite McCarthyite tactics.

Monday, August 20, 2018

Does the Manafort Verdict Matter?

by Michael Dorf

After two days of deliberations, the jury in the Paul Manafort trial took a break over the weekend, with the expectation of resuming this morning. On Friday Judge T.S. Ellis III ruled that he would not reveal jurors' identities after the trial, to spare them the death threats that he has apparently been receiving. Meanwhile, President Trump told reporters that he thought "the whole Manafort trial is very sad,” not because it shows what poor judgment he displayed in making Manafort his campaign chairman but because of what "they’ve done to Paul Manafort,” who “happens to be a very good person." Because the jurors have not been sequestered over the weekend, there is a decent chance that one or more of them will have by now seen Trump's remarks, prompting one Washington Post columnist to speculate that Trump has engaged in illegal jury tampering.

Meanwhile, does the Manafort verdict matter? Even if Manafort is acquitted or the jury hangs, special counsel Robert Mueller's team will have another shot at him in short order in Washington, D.C., where they will likely face a less crabby judge and more sympathetic jurors. And if Manafort is convicted in the current case and/or the DC case, so what? Trump will take one or more of the following actions: (a) Distance himself from Manafort by noting that the crimes at issue were unrelated to the Trump presidential campaign; (b) denounce the verdicts as a result of a "partisan witch hunt"; and/or (c) pardon Manafort. The Resistance will be outraged, but Trump's supporters will remain supporters.

Friday, August 17, 2018

Brennan Security Clearance Revocation Spotlights Trump's Peculiar Mixture of Shameless Truth Telling and Bald-Faced Lying

by Michael Dorf

Does President Trump really have the power to revoke the security clearance of former CIA Director John Brennan based on Trump's peeve at Brennan's harsh criticism of Trump's statements, actions, and character rather than any indication that Brennan leaked or otherwise misused classified information? I'm not an expert in national security law, so I'll set aside any statutory or regulatory limits that Trump may or may not have violated. I do think there is a First Amendment problem here, however.

When he was serving on the Massachusetts Supreme Judicial Court, Oliver Wendell Holmes, Jr. famously wrote that a police officer who was fired by the mayor in response to his political canvassing and vote solicitation "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." Yet modern case law in both the employee speech context and in the broader context of so-called unconstitutional conditions doctrine makes clear that the government's greater power to deny someone a benefit--such as continuing in a job or retaining a thing of value such as a security clearance--does not necessarily entail the lesser power to condition that benefit on refraining from exercise a constitutional right. Thus, even if Trump had the power to revoke Brennan's security clearance based on a discretionary judgment that Brennan no longer needed the clearance, he did not necessarily have the power to revoke it based on Brennan's political speech.

I won't venture a guess whether a lawsuit by Brennan would succeed; numerous doctrines insulate government officials and especially the president from liability for unconstitutional actions; hence, it is possible that Trump's revocation of the security clearance in retaliation for Brennan's speech was unconstitutional but that no judicial remedy is available.

Yet we are still left to marvel at the brazenness of Trump's explanation. Presumably Trump or one of his spokespeople could have given some anodyne explanation. Here's one: Former government officials retain their security clearances in order to facilitate their consultation with current government officials on sensitive national security matters. It was determined, however, that Mr. Brennan is not engaged in such consultation, thus leading to the termination of his clearance.

Thursday, August 16, 2018

It Is Not Only Liberals Who Must Compromise to Stop Trump

by Neil H. Buchanan

When anyone but his supporters talks about Donald Trump, the conversation is clear and unwavering.  No matter the speakers' positions on specific policies, from lefty progressives to hardcore right-wing neoconservatives and all positions in between, everyone understands clearly that Trump poses an existential danger to the the rule of law.  All agree that he must be stopped in order to save constitutional democracy itself.

Yet an odd thing happens when it comes to Democrats actually choosing candidates and articulating positions in opposition to Trump.  Suddenly, those resolute anti-Trump voices are unsparing in their criticisms of Democrats who -- we are told endlessly -- are being too extreme to win over voters.  Democrats are being told (ad nauseam) that they have to compromise in order to win.

Because "compromise" is one of those exalted concepts in American punditry -- right up there with "moderate" -- this puts those accused of not being willing to compromise in a difficult position.  Why not give a little ground in order to stop Trump?  What is wrong with you?

Yet there is an absurd asymmetry in all of this.  Progressive Democrats are told that they should support people whom they do not truly support so that other people do not have to compromise on their positions.  But why are liberals the only ones who are supposed to give up their first choice when opposing Trump?

The asymmetry is even worse, however, because the usual line from supposedly sympathetic non-progressives is that "the voters will never go for such a crazy lefty."  Yet because even the most left-ish candidates in the U.S. today are defenders of the rule of law, the pearl-clutching critics of progressives should be willing -- in the name of stopping Trump -- not only to support people they do not view as a first (or second or third) choice.  They should be willing to do all that they can to convince people that the red-baiting hype against progressive Democrats is dangerous nonsense.

Yet those centrist and right-leaning writers seemingly cannot be bothered.  Are they truly anti-Trump, when push comes to shove?  If the choice is between a "democratic socialist" who is in every way committed to opposing Trump's authoritarianism or a Republican who won his primary by promising to protect Trump from the Mueller investigation, why should anti-Trump people carp about having to compromise?

Indeed, as I will argue below, it is Trump's conservative critics who bear a unique responsibility to stop attacking democratic socialists and start educating the public about what progressive Democrats actually support.

Wednesday, August 15, 2018

Originalists in Space

by Michael Dorf

Last week, Vice President Pence announced the creation of a "Space Command," a first step towards what President Trump hopes to obtain from Congress: a "Space Force" as a full-fledged new branch of the military to take its place alongside the Army, Navy, Air Force, Marines, and Coast Guard. Despite the appeal of a Space Force to pre-adolescent boys whose mommies and/or daddies tuck them into Star Wars-themed blankets (and to a president whose emotional age matches the youngest of these boys), a Space Force is a terrible idea.

Our armed forces already suffer due to inter-branch rivalry. Although inter-branch competition can lead to some benefits (in much the way that a monopolistic company can benefit from the added incentives that come from competing one division against another), such competition within the military is a net loser: extra cost due to redundancy and coordination difficulties are the main problems. Creation of yet another branch would only exacerbate these problems.

Further, although the mere existence of a Space Force would not violate the Outer Space Treaty, which the US signed and ratified over a half century ago, some tasks that the Space Force might undertake in the future could violate the treaty. Even before we reach that point, however, the Space Force creation signals a US commitment to militarize space and thus could spur a dangerous arms race.

But maybe I'm wrong about all of that. Or maybe the idea of a Space Force is just so cool that its costs are worth bearing for the boon in recruiting. Let's put the policy questions aside for now. Instead, I want to ask a different question: Would a Space Force be constitutional?

Tuesday, August 14, 2018

The Post Joins the Right-Wing Freakout Over Medicare for All

by Neil H. Buchanan

Republicans are understandably having fits about the increasing popularity of Democrats' plans to expand eligibility for Medicare to the entire U.S. population.  Should this popularity not also be great news for Democrats, as a matter of both politics and problem-solving policy?  Surprisingly, it turns out that there are some prominent liberal-ish voices that are freaking out about Medicare for All, and I do mean freaking out.

Until now, it has been possible to imagine that the Democrats and independents who opposed a single-payer system were doing so because they viewed it as political suicide or because it seemed too difficult to do as a matter of policy mechanics.  Are those excuses still viable?

The latter argument became untenable when it dawned on Democrats that there was already a popular single-payer system that serves 44 million Americans.  The worry about "scaling up" is usually reserved for cases in which a small pilot project in a few cities has proven useful and it is unclear whether a national system would be feasible.  Medicare, however, is already scaled up to an enormous size, and increasing its reach to the remainder of the population is not fundamentally daunting.

Setting that issue aside, the other excuse among non-Republicans who have long opposed single-payer plans -- the claim that the public would never support it -- is pretty obviously testable against the evidence of whether the public actually supports it.  And in pleasingly increasing numbers, they do.

This means that the non-Republicans who continue to be opposed must either have some variation on the scaling-up argument or some other substantive reason to oppose Medicare for All.  It turns out that they have neither.  Instead, they have resorted to anti-government rhetoric, and they sound no different from Republicans when they start warning darkly about how the government would "take over one-fifth of the economy" or impose a huge tax increase or whatever.

In short, those supposedly sober-minded non-Republicans are resorting to scare tactics, trying to get people to oppose Medicare for All simply by calling it a Big Government program.  It turns out that the editorial board of The Washington Post is among the purveyors of this nonsense, and now The Post's fact-checker has even gotten in on the act.

Monday, August 13, 2018

Is the Court a Court Redux?

By Eric Segall

Last week at the Southeastern Association of Law Schools (SEALS) conference, I attended a session on constitutional law works in progress. Although my paper did not directly address the subject, we ended up having a long conversation about whether the Supreme Court is really a court. My 2012 book Supreme Myths argued that the Supreme Court as an institution does not take prior positive law (text, precedent, historical sources) seriously enough to warrant the label "court." I argued both in the book and during the conference that giving judges unreviewable power for life, and then asking them to resolve many of society's most difficult social, political, economic and legal questions based on vague text and contested history, will inevitably result in all-things-considered decisions in the cases the Justices care deeply about.

The fact that the Justices reach unanimous decisions in almost half their cases is irrelevant to my thesis because they choose their own cases and quite self-consciously make sure much of their docket consists of controversies that do not raise important political issues that most Americans care about. If all their cases involved issues like abortion, affirmative action, and separation of church and state, then most of their decisions would in fact be decided along ideological lines.

The push back to these ideas from, among others, Professors Mark Graber, Chris Lund, and Evan Zoldan, and my responses, are the subject of this post. These exchanges were polite, provocative, and in the spirit of gaining better understandings of each other's positions.

Friday, August 10, 2018

Masterpiece Cakeshop and Disparate Impact

by Sherry F. Colb

In my Verdict column today, I talk about a law, proposed but defeated in Lower Austria, that would have required Jews and Muslims who wanted Kosher and Halal meat, respectively, to register as observant Jews and Muslims.  My post here is not about discrimination in Austria, but it revolves around a somewhat related question that arose in a case before the US Supreme Court this past term: How should the Constitution define discrimination on the basis of religion?

Toward the end of the term, the justices narrowly decided Masterpiece Cakeshop v. Colorado Civil Rights Commission. To refresh your recollection about the case, it involved a baker (Jack Phillips, owner of Masterpiece Cakeshop or "MC") who refused to prepare a wedding cake for a same-sex couple that had requested one. The couple complained to the Colorado Civil Rights Commission, and the latter found that MC had violated the Colorado anti-discrimination law by refusing the couple a cake. MC defended itself with the argument that it had a First Amendment right not to "speak" a message with which it disagreed through the creation of a same-sex wedding cake and offered a second argument that the Colorado commission had engaged in religious discrimination by finding against MC (but not an experimented-upon secular baker), because MC had a religious reason for refusing the couple a wedding cake. Ultimately, the Supreme Court determined that one of the commissioners in the Colorado commission had exhibited anti-religion bias in describing the case and that this bias tainted the decision of the court that affirmed the finding of anti-gay discrimination.

Others have noted the troubling inconsistency between the way the Court resolved MC and the Court's unwillingness to allow the President's unrelenting racism against Muslims to infect the third travel ban that he issued and that the Court upheld. Michael Dorf and I have both observed that the supposedly offensive remarks by the lone commissioner were not actually offensive at all. He said that people have historically committed atrocities and invoked religion as the basis for the atrocities. That is not only not biased but a plainly accurate statement: the Spanish Inquisition and the Crusades are just two examples. The man also said that it is despicable when people invoke religion as a justification for hurting others. Well, it is, isn't it? If someone excluded a customer from his store on the basis of race and invoked some passage from the Bible about the curse of Ham or the creation of white, black, red, and malay, to remain separate, most people would call that despicable. No religious bias there.

It is useful to think about one of MC's arguments that the Court felt no need to consider (yet). The argument is that applying the anti-discrimination law to MC would discriminate against it on the basis of religion. I had a conversation with someone around the time that the case was argued. He said that both sides have a good claim of discrimination. I asked what sort of discrimination claim did MC have? He said that the claim was that Colorado was discriminating against MC. I asked on what grounds anyone would claim that Colorado was discriminating, when it was simply applying anti-discrimination law to someone who happened to be acting on the basis of a religious motive. He just shook his head and repeated that that's what people were saying.

Thursday, August 09, 2018

Justice-to-be Kavanaugh and the Inevitable Backlash

By Eric Segall

I wrote an essay for SLATE this week making a non-partisan case against the nomination of Brett Kavanaugh. I concede that he is eminently qualified to be on the Court, and I’ll take it as an article of faith that he is a man of strong character and an all-around good guy. Nevertheless, there are compelling reasons why even Republican Senators should vote against him. I’m not na├»ve enough to believe any of them will, but understanding why they should reveals some interesting aspects of the relationship between the Supreme Court and the rest of our political system.

Wednesday, August 08, 2018

How to Retaliate for Garland

by Michael Dorf

In my latest Verdict column, I explain why I declined to sign a letter from 72 former law clerks of Justice Kennedy in support of the confirmation of Brett Kavanaugh to the Supreme Court. To summarize, I argue: (1) Kennedy clerks do not have any special insight into Kavanaugh's qualifications in virtue of having clerked for Kennedy; (2) the letter purports to reflect a set of politically diverse views, but in fact nearly all of the signers are very conservative; and (3) the letter tacitly assumes without defending the controversial position that the role of the Senate should be limited to examining the professional credentials and judicial temperament of the nominee. Here I want to elaborate on why I think that assumption is wrong under current conditions.

Tuesday, August 07, 2018

Is It Time to Ease Off On the Media Criticism?

by Neil H. Buchanan

It seems impossible to have anything but a love-hate relationship with the American media.  On the "love" side, not only is an independent press an absolute necessity for a free society, but the mainstream media has done its job amazingly well at many times during the Trump era.  With The Washington Post taking a clear lead, but with ample and impressive assists from The New York Times as well as CNN and other outlets, the press has been the source of almost every investigative bombshell that has put Donald Trump's presidency (quite rightly) in peril.

On the "hate" side, however, the American press continues to lapse into various forms of the conventional wisdom, sycophancy, false equivalence, and laziness that we have witnessed for years (most prominently in the run-up to the Iraq War in 2003).  All of that was bad enough when the threats to American freedom were the slow bleed of voter suppression, money-driven politics, and all of the other familiar problems that led to the metastasis of the radical-right Republican Party of the twenty-first century.  Under Trump and his pliant party, it seems unforgivable.

Unfortunately, the press's willingness and ability to confront Trump and call out his lies has resulted in Trump's proto-fascist tendencies coming to the fore, with increasingly unhinged attacks on the press -- not just criticisms of perceived mistakes in doing their work, but claims that they are terrible human beings, which has predictably resulted in Trump's fanatical followers threatening members of the media with violence.

The past week or so has been so bad that it is no longer surprising (though it should still be shocking) to see predictions from commentators that Trump will soon have "blood on his hands" as well as warnings about "deadly violence" when someone takes the fateful next step and attacks reporters violently.  Claims by Trump's enablers that he is merely attacking bad reporting are simply false, and his followers seem unmistakably to be getting the message.

In an environment that has become this dangerous and volatile, is it now necessary for those of us who criticize the press on the merits (that is, demerits) of their coverage to cut it out?  When is even principled criticism a bad idea?

Monday, August 06, 2018

Abolish ICE versus End the IRS: Still No Real Equivalance

by Neil H. Buchanan

The new tut-tutting move on the op-ed pages is to say that Democrats are moving too far to the left, which is sometimes made as a definitive claim and other times as part of a "Democrats have an identity crisis" rerun of old columns.  In any case, with the continued popularity of Senator Bernie Sanders among many Democrats, combined with the emergence of Alexandria Ocasio-Cortez as a new face on the left, Republicans and many pundits are now saying that the Democrats are becoming full-on socialists.

That is nonsense, of course, for reasons that I will explore in a pair of columns next week.  Today, however, I want to focus on what is perhaps the most plausible -- or, more accurately, least implausible -- example of this supposed lefty extremism among the Democratic base: the proposal to "Abolish ICE."  This is a relatively new proposal embraced by many progressives that would eliminate the U.S. Immigration and Customs Enforcement agency.

The reason that I call this accusation the least implausible among the talking points against progressive Democrats is that the idea of abolishing an agency that enforces immigration law inevitably plays into the false claims that Democrats want "open borders."  And when proponents of abolishing ICE explain that they do, in fact, still plan to enforce immigration laws, their defense can look an awful lot like a pointless and downright silly exercise in relabeling.  "Don't like ICE?” they might seem to be saying, “No problem.  We'll replace it with a new agency, which we'll call Not-ICE."

My snarky turn of phrase in that last sentence, in fact, mirrors an attack that I have made against Republicans who have talked about "ending the IRS."  That proposal actually gained steam on the right a few years ago, and I commented back then that the Republicans would end up creating an agency called Not-the-IRS and then declare victory.

The ridiculousness of the relabeling exercise was so obvious that even Senator Marco Rubio attacked his colleague Ted Cruz during the 2016 presidential primaries, pointing out to listeners at a joint press conference (sometimes wrongly called a "debate") that Cruz had proposed to rewrite the entire U.S. tax code, and "[s]omeone's going to be collecting [your proposed] tax."

Is Abolish ICE just a lefty equivalent of End the IRS?  Actually, no, even though the superficial similarity is there.  But because of that superficial similarity, it is unfortunate (though understandable) that progressives have adopted this rallying cry.  In a superficial media culture, this is an unforced error.

In any case, having said that this comes closer than usual to looking like true equivalence between Republicans and Democrats, I will spend the rest of this column explaining why it is, in fact, very much another example of false equivalence.  Abolish ICE and End the IRS, in the end, could not be more different.

Friday, August 03, 2018

Employers, Free Choice, and Humane Eating

[Note to readers: My new Verdict column is now available, in which I discuss the Trump Administration's trial balloon regarding an executive order to reduce capital gains taxes.  Among other things, I argue there that such an order would clearly exceed the president's authority.  Some readers might wonder, however, whether anyone would have standing to challenge such an order.

[I did not discuss standing in the column, largely because the column was already too long.  I can say, however, that the academic paper from which I drew some key points for that section of the column, by Daniel Hemel and David Kamin, did address the standing issue.  They concluded that "states, charitable organizations, and brokers subject to statutory basis reporting requirements," among others, would likely have standing.  I realize that there are no definitive analyses, especially when it comes to standing, but this one seems pretty clear-cut to me.

[Even if I am wrong, however, lack of standing would not change the analysis in my column, the bottom line of which is that the Trump proposal is politically great for Democrats.  Indeed, it might actually be even better for Democrats if Trump did this and it was unchallengeable in court, because it would look even more like executive overreach and thus be a more potent campaign talking point.

[In any event, the column below is not about taxes or standing at all.]


by Neil H. Buchanan

Anyone who wants to understand the ethical case for veganism should read the engaging book by my co-bloggers Sherry Colb and Michael Dorf, Beating Hearts: Abortion and Animal Rights (Critical Perspectives on Animals: Theory, Culture, Science, and Law).  Because I share this platform with Professors Colb and Dorf, I typically show my respect for the concept of comparative advantage by letting them cover the animal rights beat, while I limit myself to an annual "veganniversary" column.  There are occasional exceptions, however, and this year is one of them.

Last week, I commemorated my ten-year veganniversary by noting (among other things) the positive trends in vegan-friendly eating in the U.S. and around the world.  Because there was so much to say in that column, I decided to write this follow-up column discussing a recent article in The New York Times that represents the continuing negative representation of vegans in the media.

Sadly, it remains true that even purportedly neutral reporting in a major newspaper is still infused with sneeringly negative comments about vegetarians and vegans, as well as unchallenged misinformation.  The world of restaurants and grocery stores is (as I reported last week) moving in the right direction at an accelerating pace, but even people who view themselves as informed modernists continue to say outright ridiculous things about vegans and animal rights.

Thursday, August 02, 2018

SCOTUS Term in Review: Taint, Complicity, and Polarization

by Michael Dorf

Today (beginning at 9 am Eastern time) I will once again be participating in the annual Practicing Law Institute Supreme Court Review in NYC. If you're interested, it may still possible to sign up, at least for the online or recorded version. I'm on a fair number of panels, including the overview panel. Here I'll preview some of what I plan to say for the overview panel.

Wednesday, August 01, 2018

A Few Recent Un-Great Moments in Right-Wing Punditry

by Neil H. Buchanan

It is quite possible that punditry does not matter.  Perhaps journalists, political junkies, and policy wonks are all engaged in a completely useless exercise on a daily basis, with everyone involved pretending that what they are saying and writing is important.  The world, meanwhile, might not take any notice or be affected in any way.

I have argued, for example, that Paul Krugman's career as a pundit makes it extremely difficult to imagine that anything written on the op-ed pages of even the most influential newspaper in the world ultimately has any influence.  With the combination of Krugman's considerable communication skills and his unsurpassed credentials, one would think that we would be able to see how he has changed something, somehow, at some time.  Can we?  I have never been able to find even one clear example.

On the other hand, it is possible for no single pundit to matter but for all punditry combined to matter.  The best example of this phenomenon, in fact, is a prominent example of one of Krugman's individual failures to change the narrative.  In 2010, the Obama Administration decided to "pivot" to focus on deficit reduction, even though (as Krugman wrote again and again, with no one able to offer a coherent argument against him, then or now) that this was exactly the opposite of what we needed at the time.

Why did that happen?  Arguably, punditry made it happen.  The Obama people were trying to impress the people who collectively drive the conversation, especially the people who present themselves as that most desired breed: reasonable centrists.  One of the religious tenets of the pseudo-centrist pundits is that deficits are bad, bad, bad, and President Obama and his people felt the need to get those oh-so-sensible purveyors of the conventional wisdom on their side.

That that was a suckers' game was obvious even at the time, especially when the false centrists ignored the fact that Obama had actually offered the fiscal reactionaries all that they ever asked for (and then some), yet those pundits kept blaming him for ignoring their bible of righteous pretense -- the ridiculous Bowles-Simpson report.  Taking yes for an answer would have required the pundits to agree that one political party was being "reasonable" (at least by the pundits' standard), and saying that Democrats are right while Republicans are wrong is not allowed.  Therefore, Obama's proposals had to be deplored as the products of left-wing ideology, no matter their actual contents.

In any case, if punditry ultimately does not matter, then I am certainly one of the policy wonks who spends far too much time thinking that it does.  But it is the possibility that it does matter in the aggregate that keeps me engaged, staying ever vigilant for examples of bad (and very occasionally good) developments in the self-reinforcing conversation among those whose day jobs involve writing op-eds and talking with other people who write op-eds (often while appearing on cable TV shows in which they discuss each others' op-eds).

All of which is a preamble to justify offering some comments on a few recent opinion columns that have struck me as particularly galling.  Again, I can easily make the argument that none of these examples matter individually.  And the four that I have chosen are not even discussing the same topic.  Nonetheless, if these four examples are an indication of where things might be headed, they are worrisome in a variety of ways.