Tuesday, July 16, 2019

Civilization and Taxes, Through an English Lens

by Neil H. Buchanan

Because of travel commitments, I regret to report that I am not able to offer readers a new column here on Dorf on Law today.  (With the latest racist rants coming out of the White House, perhaps it is better for my mental health not to engage for the time being.)  I did, however, recently publish my annual "jot," which is an essay for the online legal magazine "JOTWELL -- The Journal of Things We Like (Lots)."

This year's jot is titled "The Law of Taxation Is the Lynchpin of Civilization," in which I review the introductory chapter of a book edited by John Snape and Dominic de Cogan, two tax scholars from English universities (Warwick and Cambridge, respectively).  Although the book that their chapter introduces is excellent on its own merits, the Snape/de Cogan lead-in is truly outstanding and easily stands on its own as a contribution to knowledge.  I like it (lots), and I commend it to readers' attention.

One quick thought comes to mind, inspired by the now-standard "full disclosure" statement.  I have had some early discussions with Snape and de Cogan regarding possible academic collaborations of various sorts.  In some sense, then, one could say that my positive review of their work on Jotwell (and here) is a bit of an "inside job," that is, a glowing assessment not based on the merits of their work but on a personal connection.  To draw such a conclusion, however, would be incorrect.

Such an inference is, in fact, a classic example of reverse causality.  That is, it is not that I am reviewing Snape and de Cogan positively because I am planning to work with them; rather, I am excited to work with them because I view their work so positively.  Indeed, frequent readers of this blog are likely to note that Snape and de Cogan have independently written about many of the issues that have consumed my attention over the years.  Combining our efforts is thus eminently sensible.

In any event, the "jot" can be found at this link, and I am also providing it here for the convenience of our readers.  Enjoy!

Monday, July 15, 2019

Ted Cruz and Other Right-Wing Trolls Say that Democrats are the Real Racists Because They Used to Be

by Michael C. Dorf

Last week, Tennessee Governor Bill Lee took bipartisan heat for signing a proclamation declaring July 13 "Nathan Bedford Forrest Day." Did Lee deserve the criticism? Maybe not. A state law obligates the governor to declare holidays honoring, respectively, Forrest, Confederate General Robert E. Lee, and Confederate Decoration Day. Yet Governor Lee is not entirely blameless. Given his own past expressions of admiration for the Confederacy, he could certainly be doing more to secure passage of a new law repealing the existing obligation to declare the offensive holidays.

But let us put Lee aside for the moment to focus on one of his critics. Texas Senator Ted Cruz took to Twitter to call out Lee and Tennessee legislators. Cruz tweeted:
This is WRONG. Nathan Bedford Forrest was a Confederate general & a delegate to the 1868 Democratic Convention. He was also a slave trader & the 1st Grand Wizard of the KKK. Tennessee should not have an official day (tomorrow) honoring him. Change the law.
I agree with nearly all of that. Why only nearly all? Because in the midst of an otherwise quite sensible anti-racist plea, Cruz could not resist trolling Democrats. Of what possible significance is it that Forrest was a delegate to the 1868 Democratic Convention? The slogan of that convention was: "This is a White Man's Country, Let White Men Rule." Perhaps Cruz was referring to that?

Not a chance. How many of Cruz's Twitter followers or Americans more generally are sufficiently familiar with the history of the period to know the 1868 Democratic convention's slogan or anything at all about it? Can you name the Democratic nominee for the presidency in 1868? (Answer here.)

So why did Cruz list Forrest's status as a delegate to the 1868 Democratic Convention alongside sins like his role in the Klan? The short answer is that Cruz was engaging in a now-common bit of misdirection from Republicans: calling attention to the fact that prior to the mid-1960s, the Republican Party was overall less hostile to civil rights and less racist than the Democratic Party--as though that should somehow discredit the modern Democratic Party. This move seems aimed at two audiences: easily confused low-information voters; and white voters who would otherwise be uneasy about the GOP's arguably racist policies and the inarguably racist president.

Friday, July 12, 2019

Constitutional Crisis Watch: Any Reasons for Optimism?

by Neil H. Buchanan

As the unraveling of constitutional norms continues apace under Donald Trump's unfocused gaze, the toadying by Trump's Republican enablers has caused me to wonder whether there is anything that would be too much for them.  In particular, frequent readers of this blog and of my columns on Verdict know that I am worried to the point of panic about whether Trump will ever leave office peacefully.

Although there is no reason to take Trump's former private lawyer/fixer Michael Cohen's legal views seriously, I do think that he had no reason to simply fabricate the idea (based on his observations of Trump, not on any legal theory) that if Trump "loses the election in 2020, ... there will never be a peaceful transition of power."  Certainly, everything that we have seen from Trump indicates that he would not hesitate to try to stay in the White House at any cost; and what we have seen from the Republicans to date suggests that, if they do have a limit to their enabling of Trump, we have not approached that limit yet.

Even so, in a search for even the thinnest of optimistic reeds, I have been trying to find ways to see a way forward in which Trump loses and leaves office without (too much of) a fuss.  Thus, three weeks ago, I tried my very best to describe a way in which Republicans might be "working Trump" behind the scenes, derailing his worst impulses (for example, forcing him to drop his efforts to put Stephen Moore and Herman Cain on the Federal Reserve Board), thus allowing us to think that perhaps they are exercising more control than is apparent to the naked eye.

Today, I offer an update on these matters, responding specifically to one very bad argument for optimism and one possibly good one.  In an environment where all can seem lost, even a little bit of ambiguously good news is welcome, as I will argue below.

Thursday, July 11, 2019

With the Efficiency Trope Exposed as a Fraud, Can We Say Anything Objective About Economic Analysis?

by Neil H. Buchanan

[Note to readers: My latest Verdict column, "Constitutional Democracy, Trust, and Self-Restraint: The Destructive Consequences of Republicans’ Opportunism," is available now.  My column below returns to a very different topic.]

On some level, I suspect that almost everyone hopes to find objective, uncontroversial bases on which to build their arguments.  Beginning a discussion with a phrase like "I think we can at least all agree that ..." might sometimes be a manipulative and dishonest rhetorical move (designed to make an opponent look unreasonable if she objects), but it can also reflect a desire not to have everything be a matter of opinion or conflicting moral principles.

The post-World War II modernization of the academic field of economics was in large part driven by this hope.  The dominant personalities in the field, especially Paul Samuelson, had seen grand ideology deployed in horrifying ways by Nazis in Germany and Stalinists in the Soviet Union, a natural response to which was to try to turn high-stakes fields like economics into technical inquiries that appear to be immune to the ravings of madmen and monsters.

That is an admirable motivation, but as subsequent history has shown, at best the effort to dress up economics as a science has not stopped it from being turned into an excuse to ignore the plight of billions of people.  Rather than saying that some twisted version of what Marx wrote justifies openly murdering millions of one's citizens, modern economic orthodoxy is an elaborate superstructure that allows rich people to extract more and more from the non-rich and then to blame the victims for their plight.  This is unquestionably better than the alternatives that Samuelson has witnessed, but it is by no means morally neutral.

In a series of columns last month (here, here, here, and here), I criticized the concept of economic "efficiency" from various angles.  The scare quotes are necessary to emphasize that this supposedly neutral concept is ultimately a shell game that allows any minimally clever economist to claim that what he (yes, economics is still one of the most gender-unbalanced academic fields) likes is efficient and what he dislikes is inefficient.

But is that not an overstatement?  Surely, there must be some objective and neutral statements that one can make about economic policy questions that could rightly be preceded by, "I think we can at least all agree that ... ," right?  Sadly, no.

Wednesday, July 10, 2019

The Not-So-Fine-Line Between Creative Lawyering And Dishonesty

by Michael C. Dorf

My latest column on Verdict offers some thoughts on the attempted substitution of a new team of lawyers trying to defend the decision of Commerce Secretary Wilbur Ross to add a citizenship question to the 2020 US census. The column speculates along two dimensions. First, I say it is likely that the original team refused to participate further in what they regard as unethical lawyering and thus either quit or were removed. Second, I say that the original team could have objected to further participation along one or both of two grounds: (a) they did not think they could honestly say that the Ross decision was taken for any other reason than to gain partisan advantage by undercounting Democratic-leaning Latinx and other minority communities; and/or (b) they could not tell the court that sufficient time remains to print and distribute census forms with the citizenship question, given their repeated representations that June 30 was a hard deadline.

Here I want to focus on (a). In particular, I want to ask what exactly makes the task that the original Dep't of Justice lawyers might have attempted to decline so different from a task that lawyers routinely perform for clients. Before diving in, I want to acknowledge (as I do in the column) that my assumptions about what is going on within DOJ are necessarily speculative. Even if I'm mistaken about what is happening, however, the points I make here have wider application.

Tuesday, July 09, 2019

The Epstein Indictment and Statutes of Limitations

by Michael C. Dorf

The indictment of Jeffrey Epstein for sex trafficking and conspiracy to commit sex trafficking of minor girls alleges acts "from at least in or about 2002 up to and including at least in or about 2005." That is hardly the most felicitous phrase, but it fairly conveys the sense that the crimes allegedly occurred from a period roughly 14 to 17 years ago. It is possible that yesterday's discovery of a "trove of lewd photographs of girls" in a safe inside Epstein's NYC home could lead to additional charges for more recent conduct--either for possession of child pornography or for other offenses for which the photos provide evidence or leads. Even so, however, readers may be wondering how Epstein can be charged now for offenses that allegedly occurred a decade and a half ago. What about the statute of limitations?

Although the default federal statute of limitations for non-capital crimes is five years, Congress has made numerous exceptions. In 2006, it eliminated the statute of limitations entirely for child kidnapping and child sex trafficking. Per constitutional case law construing the Ex Post Facto Clauses' limits in criminal cases, it could only do so for future alleged conduct and past alleged conduct for which the statute had not yet run when Congress eliminated it. By going back only to 2002, the indictment covers most of whatever Epstein allegedly did that was still within the old five-year limit when the 2006 Act was adopted.

What should we make of the elimination of this and other statutes of limitations or of the parallel trend in recent decades to extend limitations periods (both at the state and federal levels)? The case for extension or abolition is straightforward: Those who commit heinous crimes should not be able to avoid justice by out-waiting it. That impulse is understandably especially strong with respect to minor victims, who may not have the wherewithal to come forward with charges until many years later.

But the severity of the offense is a double-edged sword.

Monday, July 08, 2019

Dick Posner: The Man Behind the Robe

By Eric Segall

Now that the Supreme Court term is over, I decided to write a personal post about a much misunderstood legal giant whom I know extremely well.

Retired Seventh Circuit Judge Richard Posner has written more than fifty books, thousands of articles and essays, and over 3,000 judicial opinions. His writings on law and economics, anti-trust, torts, constitutional law, and numerous other issues of national interest have made him “a legend of American jurisprudence.” There is no doubt that he is the most important judge in America over the last fifty years who never sat on the Supreme Court.

Much has been written, and will be written, about his storied career, which has been without a doubt polarizing. Posner’s approach to judging, an obsessive pragmatist with little use for legal doctrine, his stern questioning from the bench to shell-shocked lawyers, and his commitment to the law and economics movement in his early days as a professor and then a judge, alienated substantial numbers of legal academics, lawyers, and economists. On the other hand, others hailed him as a genius. As Lincoln Kaplan once wrote, Posner’s “approach to law, some legal scholars contend, makes the field worthy of a Nobel Prize—which he would win, many say, by acclamation….”

This essay is not, however, about Posner’s long career as a judge, academic, public intellectual and antagonist. This is a story about the man behind the “legend.” I hope I’ll be forgiven for the extremely personal nature of what follows but I know of no other way to tell this story.

Wednesday, July 03, 2019

State Court Review of Federal Constitutional Challenges to Partisan Gerrymandering

By George R. El-Khoury

In Rucho v. Common Cause, the Court held that constitutional challenges to partisan gerrymandering present a nonjusticiable political question. Merits of the case aside, I want to explore the breadth of the Ruchodecision.
Chief Justice Roberts, for the majority, cautioned that the Court’s decision didn’t “condone excessive partisan gerrymandering,” “condemn complaints about” excessive partisan gerrymandering, or preclude Congress and the States from passing legislation to reform excessive partisan gerrymandering. He surveyed legislative attempts at reform, and he used as evidence of alternatives to federal court review a Florida Supreme Court decision that struck down a map because it violated Florida state law. Nowhere did the Chief Justice suggest (or dismiss) the possibility of a state court striking down a gerrymandered map that went “too far” as a matter of federal constitutional law.
I want to explore whether a state court could do so. Ordinarily, Article III’s limits on justiciability exclusively apply to federal courts. For example, when a litigant is without standing to assert a claim in federal court, he or she may refile in state court. That’s basic enough, but the political question doctrine, although fitting within the broader category of justiciability, is different in that there may be some instances where it limits state court review and other instances where it doesn’t.  
As applied to partisan gerrymandering, I don’t believe that the political question doctrine should apply to state courts. As constitutional law, I believe such an extension would violate principles of federalism. As federal common law, such an extension would exceed the Supreme Court’s authority. 

Tuesday, July 02, 2019

Biden's Unforced Errors Keep Piling Up

by Neil H. Buchanan

In a surprise only to people with no memory, Joe Biden is turning out to be a very clumsy (at best) presidential candidate.  It is obviously far too early to say that he will definitely lose the nomination, but only a couple of months after presenting himself to America as the candidate who can assuredly win the election, he is flailing in ways that seem all too familiar.

For those of us who view Biden as unshakably tied to the triangulating business-chummy recent past of the Democratic Party, this ought to be good news.  As I wrote not long ago, even though Biden pretty much seems now to agree with the more liberal policy views that have come to define the party over the last few years, he will almost certainly end up arguing as president that "we can't go too fast, guys," and he would be likely to slow-walk policies and doom business-unfriendly ideas to paralysis-by-analysis (e.g. appointing presidential commissions or using other old political tricks).

Or, as I put it in that column, conservatives prefer Biden because, even if he sometimes talks like a liberal, they "know he will fold immediately if ever confronted by the business establishment."  And he surely will.  Liberals will vote for Biden in a general election only because years of listless timidity are better than Trump.

That is, if Biden truly is the Democrat most able to beat Trump in 2020 -- the "electable" candidate -- then all of those policy differences should melt away, and it would be truly bad news if Biden's current stumble-bum follies meant that he would never get the chance to save the world from Trumpism next year.

Yes, I am among the legions of liberals who have been skeptical of the electability trope all along -- and certainly the idea that Biden is obviously the most electable candidate -- but it is at least worth thinking about what we now know about Biden as a candidate.  What we already knew from previous campaigns is coming into better focus, and what we did not know about Biden is in many ways even more confounding.

And it is not just the tone-deafness and lack of intellectual sharpness that are at issue (although both ought to worry Biden's supporters).  As I will explain below, Biden has over the past few years even undermined his working class credentials.  One cannot help but wonder again and again: What is he thinking?

Monday, July 01, 2019

Pretext and Remedy in the Census Case and Beyond

by Michael C. Dorf (cross-posted on Take Care)

Here is (a slightly cleaned up version of) what I tweeted in the minutes after I quickly read the Supreme Court's census opinion on Thursday of last week:
Chief Justice Roberts acknowledges the very strong evidence that enforcement of the Voting Rights Act was not the real reason for Trump/Ross adding the citizenship question to the 2020 census. So the Court approves the remand to the agency. That's good. But it is not clear what happens next. When a court remands a case to an agency because the agency did not comply with proper procedures, the agency is permitted to reach the same conclusion by dotting the i's and crossing the t's. 
Pretext is different, however. The Roberts opinion already says that the agency COULD have added the citizenship question for legitimate reasons. And we can be sure that the Trump administration will claim to be doing just that. But EVERYONE KNOWS that the political impact will still be the real reason. 
Based on the Travel Ban litigation, there is reason to fear that the SCOTUS will uphold the citizenship question after the administration "lawyers it up" better. The main difference is that in the Travel Ban case, the Court never actually found pretext. Here it has. And while an otherwise legitimate decision found to be pretextual should not be forever barred, where only a few months (at most) will pass, and the motives remain the same, a new determination to include the citizenship question should be viewed with extreme skepticism.
After a couple of disclaimers about timing that are specific to this particular case, I want to say a few words about a general remedial problem posed by any rule of law that says that an action that could be lawfully taken for some reasons cannot be taken for some other reasons.

Friday, June 28, 2019

The Census and Gerrymandering Cases and the Right-Wing End Game

by Neil H. Buchanan

Why do courts exist?  More precisely, why do constitutional courts -- courts whose jurisdiction is not simply criminal and civil adjudication but that covers questions of the sort that currently reach the U.S. Supreme Court -- exist?

Two answers to that question arise from very different choices in the design of a democracy.  One choice is whether to have direct or representative democracy.  If there is not going to be rule by plebiscite or town hall meeting, then there must be rules to set up and maintain a representative democracy.  The other choice is whether the government will be purely majoritarian or will instead live within limits on what it can do and under what conditions.  Note that one could have counter-majoritarianism even without representative democracy, just as the reverse is true, but in any event, we in the United States currently have both.

Once we have answered those two questions, we need constitutional courts.  We need them to decide when the rules of representative democracy have been violated, and we need them to determine when the representative democracy's processes have produced laws and regulations that violate non-majoritarian interests and rights.

I do understand that most (if not all) Dorf on Law readers are aware of these fundamentals, but it is very much worth going back to these basic matters today.  With an empowered right-wing judiciary flexing its muscles under the Trump presidency, we are no longer arguing about close calls regarding, say, the limits of the commerce power or how to evaluate the competence of criminal counsel.  We are looking at the destruction of basic assumptions about how we answer both the representational question and the counter-majoritarian question.

My conclusion in this column is as extreme as the situation that we confront: The Supreme Court as currently constituted has continued to rewrite the rules regarding the non-majorities that will be protected, but much more fundamentally, the Court now stands poised to assist the Republican Party in ending representative democracy in all but form.  That is not a happy conclusion, and it is worth explaining.

Thursday, June 27, 2019

Vivid Pictures, Public Revulsion, and the Supreme Court

 by Neil H. Buchanan

We are waiting for the ever more intensely hyper-conservative Supreme Court to reveal itself, thus far without much fanfare.  Yes, there have been some notable wins for the conservative movement, and Professor Dorf noted three days ago that last week's decision in Gundy v. U.S. "should probably be understood as the case that marked the beginning of the Roberts Court's open war on the administrative state."

Professor Dorf notes that Gundy is "not exactly Lochner, but it serves similar aims and interests."  As I argued last Fall, a key part of the long game in the conservative movement's judicial strategy is to restore the Lochner Era's fealty to narrow reactionary economic dogma, which involves holding that all ameliorative government actions are not merely bad policy but unconstitutional.

I subsequently argued that the Court's new hyper-conservative majority might not be as restrained as some people expect it to be.  Who is expecting it to be restrained?  I know that the idea sounds a bit counter-intuitive, but a conventional wisdom quickly emerged that Chief Justice John Roberts cares so very deeply about the "institutional legitimacy" of the courts that he will temper the passions of his four ideological siblings.  Maybe, but maybe not.

As I suggested in that later column, "if movement conservatives are thinking that they are inevitably going to lose their battle against demographics (and modernity), they might also be ready to decide to take everything that they can while they can still take it."  The question is whether they can fight against the reality of their electoral non-viability by continuing to rewrite the rules to favor their side.  In other words, can they make democracy both less democratic and less Democratic?

The answer is almost certainly yes, and the Court's decision today refusing to block partisan gerrymandering is one response to that problem, allowing the Republican politicians who stole the Supreme Court and the rest of the federal judiciary to fight against democracy tooth and nail.

One reason that the Court will probably get away with this is that assaults on democracy -- no matter how consequential -- are simply too abstract to capture people's collective imagination.  Put simply, the news media cannot show a dramatic photo of the corpse of American democracy, so no one will truly care.  Is that too cynical?

Wednesday, June 26, 2019

The Supreme Court Should Clean Up How Justices Are Noted as Joining Parts of Opinions

by Michael C. Dorf

In today's ruling in Kisor v. Wilke, Justice Kagan writes in part for the full Court and partly for a plurality. The case rejects the proposal to overrule, and then goes on to clarify, the doctrine known as Auer deference, under which courts give some deference to agency interpretations of their own ambiguous regulations. One key point is that such deference applies only to genuinely ambiguous regulations. And there are some. As Justice Kagan writes:
For various reasons, regulations may be genuinely ambiguous. They may not directly or clearly address every issue; when applied to some fact patterns, they may prove susceptible to more than one reasonable reading. Sometimes, this sort of ambiguity arises from careless drafting—the use of a dangling modifier, an awkward word, an opaque construction. But often, ambiguity reflects the well-known limits of expression or knowledge.
There is an irony lurking here, because Justice Kagan's own opinion--or at least the way the Court Reporter describes it--is ambiguous in a way that is unimportant here but could be important in other cases. It is unclear whether the first paragraph of her opinion speaks for her alone, for the full Court, or for the plurality. This is not even the first time in the past week that a SCOTUS opinion contained such an ambiguity. Consider this blog post a plea to the justices and the Reporter of Decisions (that's right, I'm talking to you Christine Luck Fallon!) to clean up this practice. It's a small, picky point, I cheerily admit, but one that could cause mischief in the future.


by Michael C. Dorf

On Verdict, I discuss the SCOTUS decision in Iancu v. Brunetti. The title of my column: After Supreme Court Ruling, Are Profane Trademarks Truly “FUCT”? In light of the subject matter, I use profanity, so consider yourself forewarned. Meanwhile, I'll have a substantive post up later today, after the next round of decisions is handed down.

Tuesday, June 25, 2019

When Does a Taking Occur?

by Michael C. Dorf

For me, yesterday's most painful decision came in Food Marketing Institute v. Argus Leader Media, in which the Court adopted an expansive (and in my view woodenly textualist) reading of a Freedom of Information Act (FOIA) exception that will make it considerably harder for the public to obtain important information from the government about private actors. I find the decision painful not only because it will harm the public interest (at least in a few cases) but because the Court rejected the position staked out by FOIA and First Amendment scholars in an amicus brief for which I was counsel of record. The brief was a collaborative project of Cornell Law School's terrific First Amendment clinic (on whose advisory board I sit). Still, the clinic has quite a few more irons in the FOIA (yuck yuck). So we live to fight another day.

Meanwhile, today I want to say a few words about another decision handed down last week. In Knick v. Township of Scott, the Court held that a plaintiff whose property is taken by the government may file an immediate lawsuit in federal court alleging a violation of the Fifth Amendment's Takings Clause (made applicable to state and local action by the Fourteenth Amendment), rather than having to seek a remedy in state court first (via a so-called reverse condemnation action or its equivalent). The Court overruled an earlier decision to the contrary and split 5-4 on ideological lines. As I shall explain, the actual holding of the case may not be very important, but what it reveals is.

Monday, June 24, 2019

Wrap-Up of Three End-of-Last-Week's SCOTUS Cases and Anticipation of Today's Coming Decisions

by Michael C. Dorf

The Supreme Court could wrap up its current Term today. Even if it adds another day of announcements, one or more important cases will likely be handed down today. If so, I'll blog about at least one of them later today or tomorrow at the latest.

Meanwhile, I want to use this morning's first post to register brief comments on three cases handed down at the end of last week: (1) Flowers v. Mississippi, in which the Court, 7-2 in an opinion by Justice Kavanaugh, found a violation of the defendant's right to a jury selected without racial bias; (2) American Legion v. American Humanist Assn, in which Justice Alito, writing for a majority in important respects, rejected an Establishment Clause challenge to the Bladensburg Cross, but in a way that does not exactly invite numerous new religious-themed monuments erected and maintained at public expense; and (3) Gundy v. US, in which the Court rejected a nondelegation challenge to a federal statute delegating authority to the Attorney General to determine how a federal sex offender registration statute applies to people who committed offenses before the statute's enactment, but in which Justice Kavanaugh did not participate and in which the other four Republican appointees indicated their willingness to breathe new life into the hitherto largely moribund nondelegation doctrine, thus potentially imperiling regulation in many areas.

Friday, June 21, 2019

Even If Trump Leaves, the Best Case Scenario Is Still Horrible

by Neil H. Buchanan

What will the country and the world be like if Donald Trump ever leaves the White House (voluntarily or otherwise)?  How much permanent or long-lingering damage have he and the Republican Party already done to the country and the world?  Joe Biden's fatuous claims that he can get us "back to normal" notwithstanding, what is realistic?

Thursday, June 20, 2019

Is It Too Late to Save Our Constitutional Democracy? A Very Minimal Case for Optimism

by Neil H. Buchanan

Donald Trump has become increasingly brazen about his willingness to say or do anything to stay in power.  Most recently, he has casually admitted that he would gladly accept interference from a foreign government to win the 2020 election, and he blithely (but forebodingly) commented that, unlike Richard Nixon, "I don't leave."  All of this and more has led people to wonder what will happen if Trump refuses to leave office peacefully next year.

Nancy Pelosi is surely right that it is important for the Democratic nominee (whoever she or he is) to win as resoundingly as possible, even though my best guess continues to be that nothing will stop Trump from crying foul after a loss.  In fact, the bigger the loss, the more likely it is that he will claim "massive voter fraud."

This suggests that we might already be beyond the point of no return, which would mean that we are currently living through the time period after the lethal dose of poison has entered the bloodstream but before the final convulsions of death.  (Dark enough imagery for you?)

Last week, Professor Dorf offered a very useful take on the situation, looking at it from a slightly different angle.  Responding initially to (and agreeing in part with) a piece by Ben Wittes on Lawfare that advised Pelosi and others to stop talking about prosecuting Trump, Dorf offered a way to think about how to get Trump to leave -- and, importantly, to leave peacefully (which means getting him to tell his "Second Amendment People" to stand down).

Trump will, Dorf observed, have even more incentive to try to stay lawlessly in the White House if he worries about being prosecuted as a private citizen.  Thus, even though Dorf acknowledges that this creates very bad incentives, the least-bad choice will be for Democrats to cut a deal with the then-defeated Trump: amnesty for Trump in exchange for a peaceful transition of power.

I have no idea whether that would work, but Dorf's analysis is certainly strong enough to persuade me that an amnesty deal is the lesser of evils.  In any case, here I want to make a Herculean attempt actually to be optimistic -- or at least much less pessimistic than has become my norm -- and make the best case I can conjure that we will never have to face these terrifying possibilities.  It is not an easy case, but I am willing to try.

Wednesday, June 19, 2019

Standing is What Standing Does: The Incoherence of the Personal Injury Requirement

By Eric Segall

On Monday, the Supreme Court by a 5-4 vote held that the Virginia House of Delegates did not have Article III standing to appeal a three-judge lower court opinion declaring unconstitutional the state's redistricting efforts and replacing the state's map with one the Court created. There may (or may not) be valid reasons for the Court to decline to hear the case, but lack of Article III standing should not have been the basis for the decision.

The Relevance of Emotion to Abortion

by Sherry F. Colb

In my Verdict column this week, I explore the question of which emotions people associate with self-defense and revenge, respectively. I suggest that we tend to think of fear in connection with self-defense or defense of others and anger with revenge and. I propose that because reality is more complicated, juries may mistake legitimate self-defense for criminal aggression.

In this post, I want to apply the ideas from the column to the distinct area of abortion and, in particular, to the exceptions that pro-life legislation sometimes contains to its prohibition against the procedure.

Tuesday, June 18, 2019

Liberty and Polarization in Yesterday's SCOTUS Opinions

by Michael C. Dorf

The Supreme Court decided two cases yesterday in which various Justices invoked "liberty" in odd ways. In Gamble v. US, the Court rejected an invitation to abandon the "separate sovereigns" principle under which double jeopardy protection does not extend to dual prosecution for the same conduct under substantively the same statutes at the state and the federal level. As I argued on the blog, I think the Court got it right, even though I also think a couple of Justice Alito's points in the majority opinion were off-target. I won't rehash my argument now.

Instead, I'll just note an odd argument made in each of the dissents (by Justices Ginsburg and Gorsuch). Justice Alito aptly summarizes it thus: "because the division of federal and state power was meant to promote liberty, it cannot support a rule that exposes Gamble to a second sentence." Alito's response is persuasive: Yes, he says, there is a sense in which federalism promotes liberty by dividing power, but it does not do so in every imaginable circumstance. He gives the example of the possibility of conduct being legal at the state level but illegal federally. He also gives the example of a single event giving rise to both state and local tax liability.

Justice Ginsburg responds in a footnote: "The analogy of the separate-sovereigns doctrine to dual regulation is inapt. The former erodes a constitutional safeguard against successive prosecutions, while the Constitution contains no guarantee against dual regulation." But that's a non sequitur. Justice Alito didn't invoke dual regulation as an affirmative basis for the separate-sovereigns doctrine; he invoked it defensively, to ward off the suggestion by each of Justice Ginsburg and Justice Gorsuch that there is some sort of free-floating obligation to ensure that federalism always promotes liberty. There is no such obligation.

If Justices Ginsburg and Gorsuch erred in their federalism-means-liberty argument in Gamble, at least they invoked liberty coherently. That's more than can be said for an aphorism that Justice Kavanaugh recited for the majority in another case decided yesterday--the ruling in Manhattan Community Access Corp (MCAC) v. Halleck that a private company administering a public access cable tv channel in NYC is not a state actor subject to the First Amendment. He wrote: "It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty."

Monday, June 17, 2019

The Court Was Right to Reaffirm Separate Sovereigns in Gamble, But it Says Two Questionable Things En Route

By Michael C. Dorf

In Gamble v. United States, the Supreme Court rejected an invitation to overrule the longstanding principle according to which the Double Jeopardy Clause of the Fifth Amendment does not apply to a federal prosecution following a state prosecution. The particular case involved a federal felon-in-possession-of-a-firearm prosecution following a conviction on state charges for the same conduct, but Justice Alito's 7-2 majority opinion reaffirms the principle in its entirety. It applies regardless of whether the state or federal trial occurs first and regardless of whether the first trial ended in conviction or acquittal (or some other disposition following the attachment of jeopardy).

There is an if-it-ain't-broke-don't-fix-it quality to the majority opinion. The Court recognized the separate-sovereigns principle over 170 years ago, and neither of the petitioner's chief arguments carries the heavy burden needed to overrule such a longstanding precedent. Justice Alito shows that there is very little basis for the petitioner's claim based on the original understanding. He also explains why incorporation of the Double Jeopardy Clause against the states via the Due Process Clause of the Fourteenth Amendment did not undercut the basis for the separate-sovereigns principle.

Justice Alito also explains the functional basis for the rule. The state and federal governments serve different constituencies with different priorities. Neither should be able to deprive the other of its opportunity to vindicate its interest in law enforcement via an incompetent or corrupt prosecution resulting in acquittal or via a sentence that the other jurisdiction regards as too lenient following a conviction. To be sure, as Justices Ginsburg and Gorsuch emphasize in their respective dissents, the separate-sovereigns principle can result in unfairness. If one were writing on a clean slate, perhaps that would justify a different approach, but in light of stare decisis, the concerns that the dissenters raise must be addressed through policies of forbearance and comity.

Yet while the bottom line and most of the reasoning of Justice Alito's majority opinion make sense, he makes two points that strike me as unpersuasive. Below I discuss each briefly, before adding a comment about the debate between majority and dissent about the nature of the Union and another about Justice Thomas's concurrence.

Watch This Space For SCOTUS Analysis Later Today

by Michael C. Dorf

With just a handful of SCOTUS announcement days remaining on the calendar and important decisions pending on the census, gerrymandering, the Establishment Clause, and more, this morning I shall wait to see what fresh hell emanates from 1 First Street, NE, and then post a quick take. Stay tuned!

Friday, June 14, 2019

Dear Big Ag: We Don't Trust Your Motives

by Sherry Colb & Jareb Gleckel

On Justia’s Verdict today, Jareb Gleckel has a column about Big Ag. The informal conglomerate of slaughterhouse boosters has of late proffered (a new set of) logically inconsistent arguments, on the one hand, for vesting regulatory jurisdiction over cell-based food in the USDA (because such food is meat) and, on the other hand, for preventing this food from being labeled with meat-connected words like “burger” (because such food isn’t meat). In this post, we will consider the question why Big Ag complains when Beyond Meat names one of its most popular products “Beyond Burgers” or when Tofurky sells “veggie bacon.”

Advice From Alexander Hamilton: The Next Democratic President Might Need to Pardon Trump

by Michael C. Dorf

There is no real equivalence between Donald Trump's gleeful and repeated encouragement of his supporters chanting "lock her up" in reference to Hillary Clinton's use of a private email server and recent statements about Trump by House Speaker Nancy Pelosi (“I don’t want to see him impeached. I want to see him in prison") and by Senator Kamala Harris (in a Harris administration, DOJ "would have no choice" but to prosecute Trump for obstruction). Pelosi made her remark in private and as a way to tamp down impeachment, while Harris made her statement in response to a question. Moreover, as the Mueller report documents, there is substantial evidence that Trump committed crimes that would subject him to indictment and conviction were it not for the DOJ policy against indicting a sitting president. By contrast, Clinton's email server use was reckless but not the sort of act that typically warrants prosecution.

Nonetheless, in a Lawfare column on Wednesday, Ben Wittes argued that Democrats should stop talking about prosecuting Trump, because (quoting Paul Rosenzweig) "you don’t protect norms by violating norms." Although I disagree with Wittes's implication (which may not have been intended) of equivalence, I agree with his advice to Democrats to stop talking about prosecuting Trump, because doing so very easily lends itself to the appearance that they share Trump's willingness to convert the US into the sort of country in which new governments routinely prosecute their predecessors for real and imagined crimes--thus undercutting the incentive of leaders who are defeated at the polls to relinquish power. It's true that the Trump-supporting critics of the Pelosi and Harris statements are shameless hypocrites, but any advice for US politicians operating in the real world must take account of the fact that shameless hypocrites litter the media landscape.

I also agree with Wittes on another point: that the NPR reporter's question that prompted Senator Harris to say that the DOJ would need to prosecute Trump contained embedded within it an implicit question about whether the next president ought to pardon Trump. Here I want to channel Alexander Hamilton, whose analysis in Federalist 74 may provide some useful context.

Thursday, June 13, 2019

Home Ownership, Capitalism, and That Elusive Efficiency Thing

[Note to readers: My new Verdict column, "Elected Dictators? The Limits of What Government Officials Can Do With Their Power," was published this morning.  Although my column below focuses on a very different topic, I encourage everyone to read the Verdict piece as well.]

by Neil H. Buchanan

During and immediately after the Great Recession, politicians and policy analysts understandably spent a great deal of time thinking about mortgages and home ownership.  This obviously made sense, because so much of the financial crisis that nearly pushed the global economy into a second Great Depression -- averted only because the Bush and Obama administrations (and just enough Republicans and Democrats in Congress) actually did the right things and saved the economy with necessary but unpopular bailouts -- was driven by the mortgage market.

My take on the situation was that the crisis had exposed the folly of our obsession with home ownership as part of the American Dream.  My students, like all people in their mid-twenties and later, are bombarded with the idea that a person is not truly a grownup unless and until he or she is married, has a professional job, has children, and owns a house.  This is nonsense, but it is also powerful, and I see young people over and over again making bad financial (and other) decisions in the name of proving that they are adults.

In 2012, I collected twenty-one of my Dorf on Law columns (and one column from the now-defunct Writ) on this topic and put them online in a single document, Owning Versus Renting: Thoughts on Housing Policy, Tax Incentives, and Middle Class Dreams.  In the seven years since then, I have mostly left the topic alone.

At the annual Law & Society meetings earlier this month, however, Professor Danshera Wetherington Cords's presentation included some interesting facts about homeowners' insurance that sparked some thoughts about policies to improve the functioning of the housing market in the U.S.  Those thoughts tie in nicely to the recent political brouhaha about Socialism vs. Capitalism and to the concept of economic efficiency that I have critiqued in my three most recent Dorf on Law columns (here, here, and here).

The bottom line is that our policies related to home ownership demonstrate yet again that there is no "natural" non-government baseline for our laws, and we can have a robust capitalist system under any number of different legal regimes.  The best housing policies are those that would at least reduce the harms inflicted on middle- and lower-income Americans.

Wednesday, June 12, 2019

Litigation Versus Disclosure Versus Regulation as Means of Inducing Cost-Internalization: A Comment on the Insys Bankruptcy

by Michael C. Dorf

As then-Professor Guido Calabresi's pathbreaking work explained, the tort system can be a kind of substitute for or complement to regulation. As applied to manufacturers, tort damages serve not only to compensate victims but also to induce cost internalization. In this blog post, I shall use the news of the bankruptcy filing by Insys Therapeutics--maker of fentanyl--as an occasion to discuss some of the advantages and disadvantages of the tort system relative to other mechanisms for promoting cost internalization. I'll discuss taxes, regulation, markets, and disclosure.

Tuesday, June 11, 2019

Is Economics the Problem, Or Is It the Economists?

by Neil H. Buchanan

My career move from economics into law began twenty years ago, and it was not a happy divorce.  Over the years since then, I have often been asked to explain why I was willing to leave economics behind (as a professional matter, not as an intellectual one, given that my writing continues to be dominated by economic policy topics such as budget deficits), and my answers have reliably elicited hostile feedback from people who think that economics is a beautiful and important thing.

Those negative responses, however, have always had a confused air about them, vacillating between a defense of the field of economics and a defense of economists themselves.  Is it the thing or the people who do that thing that matters?

Am I saying, in blunt terms, that economics sucks or that economists suck?

It could be both, actually, and too often economists truly are guilty of intellectual dishonesty.  Ultimately, however, it is the disembodied field itself that is the problem.

What is most interesting, in fact, is that it is possible for many, many good and talented people to be engaged in a field of study without having a positive impact on the core of that field.  Indeed, there might well be a clear majority of economists doing work that I find interesting and useful, yet the field itself continues to be deeply problematic.  How is that even possible?

Monday, June 10, 2019

Free Speech and Boycotts Revisited

by Michael C. Dorf (cross-posted at The Volokh Conspiracy)

In Arkansas Times v. Waldrip, the US Court of Appeals for the Fourth Circuit will decide whether an Arkansas law requiring public entities (including contractors with the state) to certify that they do not boycott Israel or companies that do business with Israel violates the First Amendment. The district court held that it does not. Various champions of free speech have filed briefs arguing that political boycotts are protected free speech. Three scholars who also fashion ourselves champions of free speech -- Professors Andrew Koppelman, Eugene Volokh, and I -- take the opposite view. You can read our brief here. You can read a summary of our argument in a blog post by Prof Volokh here. His blog post also contains links to the briefs on the other side. Here I'll add a few words that go beyond what I wrote on this topic back in February and what we say in the brief.

Friday, June 07, 2019

Abortion and Eugenics Part 2: Attributing Motives

by Michael C. Dorf (Updated with Audio)

This morning during the 10 am hour, Prof Colb and I will be on air in Philadelphia on WWDB-AM Talk 860 and everywhere else via TuneIn, iHeartRadio, and streaming from the webpage. We'll be joining Laurent Levy, host of The Other Animals. (Update: Here's the audio. We come in at the 11:30 mark.) We'll be talking about some of the topics in our book Beating Hearts: Abortion and Animal Rights. Certainly the abortion piece is much in the news. Meanwhile, as Prof Colb's post on Wednesday on the insanity defense and so-called humane animal products shows, human treatment of animals remains relevant to just about everything.

Depending on how the radio segment goes, I may write a follow-up post. Meanwhile, I want to use this space today to talk a little bit about attributions of motives in the abortion debate.

Thursday, June 06, 2019

Everything Is Both Efficient and Inefficient as a Matter of Economics

by Neil H. Buchanan

In policy debates, and especially in tax policy debates, the ultimate ace in the hole (note that I avoided saying "trump card") is an efficiency argument.  My side favors an efficient policy, but your side foolishly stands for inefficiency!  Everyone wants to be on the right side of that divide -- because no one could affirmatively defend being inefficient!! -- which means that the outcome of the efficiency debate matters greatly to everyone.

That is not to say that everyone is willing to favor efficiency over everything else.  One of the classic questions in policy analysis, after all, is the supposed "equity/efficiency tradeoff," wherein the people who favor a policy because it helps the poor specifically or mitigates inequality more generally say that any inefficiency caused by their policy is more than made up for by the moral value of reducing inequity.

But why does that debate always find its combatants in the same positions, with conservatives sure that their policies are efficient and liberals conceding the point?  The answer is that what the world knows simply as "economic theory" -- as if there could only be one such theory -- is actually a very particular economic theory that is (consciously or otherwise) built to lead to the conclusion that redistributive policies are bad.

I use the normative term "bad" rather than "inefficient" because, even though economics students are taught to say that the theory presented in their textbooks is objective and morally neutral, it takes studied ignorance to believe that being guilty of inefficiency is not presumptively a bad thing.  "It's inefficient" generally means "We shouldn't do it," or at least that we ought to have a very good reason to deviate from the ideal.

But what if the very concept of efficiency is inescapably empty?  What if any policy proposal, or any situation at all, can honestly be described both as efficient and inefficient, depending on the way we frame the analysis?  We need not ask "what if," because it is actually true that efficiency ultimately means nothing.  Understanding why that is true is an interesting journey.

Wednesday, June 05, 2019

Humanely Raised Animals and the Insanity Defense

by Sherry F. Colb

The U.S. Supreme Court recently granted certiorari in Kahler v. Kansas. The case asks whether abolishing the insanity defense violates the Constitution. In my Verdict column this week, I discuss the case and make some arguments in defense of allowing abolition. In this post, I want to discuss a feature of the insanity defense that it arguably shares with animal welfare regulations and customs that purport to protect animals from cruelty.

Tuesday, June 04, 2019

The Undead Nature of Orthodox Economics

by Neil H. Buchanan

Orthodox economics, as taught in thousands of Econ 101 classrooms around the world and as written down in millions of textbooks for the past few generations, carries the unmistakable message that "markets are good" and thus that "government (intervention) is bad."  Especially for a field that hides behind the positive/normative distinction -- "We are scientists who offer positive (i.e., neutral) analysis, leaving the normative choices to the philosophers and politicians" -- it is quite striking how blatantly obvious those normative conclusions are.

As one might imagine (and as most readers are well aware), there has long been quite a bit of resistance to those normative prescriptions.  Outside of economics, it is a running joke to note the cult-like worship of "the free market" and the resistance by economists to any objections to their beliefs.  Even within economics, many scholars seem to defy their own orthodoxy by arguing in favor of various types of government interventions in the economy.

Nearly everyone outside of economics and many within the profession thus seem to agree that one or more of the critiques of orthodox economic theory are powerful and important, if not dispositive.  Yet somehow that orthodoxy has never been jettisoned, and there is precious little evidence that it is in danger even today.  Indeed, it seems to have been killed countless times, yet it keeps coming back to life.  How can that be?

Monday, June 03, 2019

Dicta and the Original Meaning of Article III

by Michael C. Dorf

A recent order in a pending Sixth Circuit case asks the parties for supplemental briefing on the original meaning of the cases or controversies language in Article III and its relevance to the distinction between holding and dicta. The order is especially notable because it directs the attorneys to explain how the Corpus of Founding Era American English bears on the question. To my mind, the order raises numerous issues. Here, I'll address the following:

1) How useful is the corpus for discerning original meaning as a general matter?

2) Even assuming the answer to question 1) is "at least somewhat," should lawyers who haven't chosen to cite it be directed by courts to do so?

3) Even assuming the answer to question 2) is "yes, at least sometimes," is this such an occasion?

4) Does the original meaning of Article III determine the line between holding and dicta, even on originalist premises?

5) How should one translate that original meaning, given substantial changes in how federal courts function since the Founding?

Friday, May 31, 2019

No, Grousing Comedians Are Still Not Right That Audiences Are Too Sensitive

by Neil H. Buchanan

One particularly frustrating aspect of the all-purpose, empty complaints about so-called political correctness is that they are actually bipartisan.  That is, right-wingers -- prominently including Donald Trump -- constantly whine that all of our problems are caused by being too politically correct ("We can't even shoot immigrants at the border, ya know?" "Why can't police rough up suspects?" "People shouldn't feel bad about saying 'Merry Christmas!"), and everyone else rejects those particular examples but then says, "Even so, PC culture can get out of hand."

Let us leave aside the ongoing reality that no one can actually define the key term here in a way that does not boil down to "being sensitive to things that I don't care about, even though I'm outraged when people are insensitive to what I do care about."  In fact, most of the time, the complaint is really about being expected to care about other people's concerns.

Lack of a clear idea about what is truly at stake rarely stops people from arguing passionately that they are right.  What is especially interesting, however, is how comedians -- a group that strongly leans left in its political attitudes, most definitely including social and cultural matters -- constantly grouse about their audiences being too sensitive.

Back in 2006, "Seinfeld" alumnus Michael Richards was seen on video unleashing a nasty stream of racist bile at some African-American hecklers during his stand-up act.  Even though he apologized and his friends did not defend his remarks, Jon Stewart used the occasion on his show to complain that audience videos were making it difficult for comedians to hone their acts before live audiences.  The idea, I guess, was that a comedian needed to be able to make some racist and sexist comments while working toward what might be funny?

More recently, English comedian Ricky Gervais has practically turned his career into an effort to say, "You're all PC policing me, but I don't care.  In fact, I don't care so much that this is pretty much all I'm going to talk about.  How much you're not bothering me.  At all."  One might imagine that his time would be better spent figuring out what his audiences would not find offensive, but complaints about political correctness are (in entertainment almost as much as in politics) the lazy way to express grievance.

I clearly hold a low opinion of those who hide behind such complaints, but is there a limit to my contempt?  Are there situations in which "PC has gone too far"?

Thursday, May 30, 2019

Keeping Populist Movements From Going In the Wrong Direction(s)

by Neil H. Buchanan

Because this column discusses populist movements, some of which are related to taxes, I will start with a reminder: The Boston Tea Party was absolutely, positively not a revolt against taxes.  It was, instead, a revolt against taxation without representation and against a regressive sweetheart deal for a politically connected corporation.

I bring up this bit of history in light of two relatively recent populist phenomena: the Occupy movement, which began in a park near Wall Street in 2011, and the Yellow Vests movement, which began last year in France in response to a proposed gasoline tax increase by the Macron government.

In the case of Occupy, the movement quickly became identified with clear leftist inclinations, whereas the Yellow Vests have been disparaged for the "vagueness of their demands and the lack of a leadership to negotiate with."  The Yellow Vests spawned some violent protests, but no one is quite sure what they really are (or were) and whether there is anything to be learned from that spasm of political anger.

Here, I want to offer a relatively brief set of thoughts about the dangers of populist movements and how they can be hijacked by bad actors.

Tuesday, May 28, 2019

Clarence Thomas's Misplaced Anti-Eugenics Concurrence in the Indiana Abortion Case

by Michael C. Dorf

In a per curiam opinion in Box v. Planned Parenthood of Indiana and Kentucky, the Supreme Court: (a) reversed the Seventh Circuit opinion that had found Indiana's fetal remains disposal law unconstitutional under the rational basis test; and (b) denied review of that same court's invalidation of Indiana's law forbidding abortions based on the race, sex, or disability of the fetus. The big-picture takeaway here should be that the Court as a whole is not eager to dive into abortion jurisprudence. That means that the wave of restrictive state abortion laws we are seeing will not likely force the Roberts Court's hand. The Chief Justice apparently has enough allies among the other conservative justices who will be willing to let stand lower court rulings striking down such laws under existing precedents.

To be sure, "not likely" does not mean impossible. In denying cert with respect to the selective abortion provision, the Court specifically invoked the novelty of the issue and thus the appropriateness of percolation among the lower courts before diving back in. It is relatively easy to imagine a couple of the justices who were willing to sign onto that approach in Box taking a more aggressive stance when faced with an issue that is less novel -- such as the application of the undue burden test to Louisiana's admitting privileges requirement for abortion providers, at issue in the pending cert petition in the June Medical Services case. Accordingly, if Box means that the Court is unlikely to outright overrule Roe/Casey in the very short term, it says less about the likelihood of imminent further chipping away.

Meanwhile, the fireworks in Box could be found mostly in Justice Thomas's concurrence. Partly this was a matter of tendentious language. He refers to the abortion of a "child," without distinguishing early from late abortions. He also refers to patients who wish to have abortions as "mothers," prompting an objection from Justice Ginsburg (in a footnote). And most provocatively, Thomas writes at length about what he sees as the strong connection between abortion and eugenics.

Whether Assange (or Anyone Else) is a "Journalist" is an Unimportant and Perhaps Even Meaningless Question

by Michael C. Dorf

At least some of the counts of the superseding indictment filed last week against Julian Assange appear to apply to activities that conventional reporters routinely undertake. Does that mean the indictment violates the First Amendment? Not necessarily. As I'll explain briefly below, it's not even clear that a responsible national security reporter for a bona fide news organization would be protected by the First Amendment for doing what Assange stands accused of doing, even though such reporters do so regularly.

I'll then pivot to problematizing an issue that has consumed many non-lawyers (and even some lawyers who don't know better): whether Assange is a journalist. As I'll explain, so far as the First Amendment as construed by the SCOTUS is concerned, there's no such thing as a journalist.

Friday, May 24, 2019

Fed Courts Exam 2019: Pharma Litigation and State Habeas

by Michael C. Dorf

Per my usual custom, I am posting the exam I administered to my Federal Courts students. It was an 8-hour open-book take-home. Blog readers should feel free to spend more (or less) time on it. Submit answers (which I won't grade) in Comments. I apologize that this exam isn't as funny as some of my others (though it does contain the obligatory Trump tweet, complete with misspellings).

Thursday, May 23, 2019

Does Employment Division v. Smith Apply in Indian Country? Thoughts on a SCOTUS Ruling Finding Hunting Right Under 1868 Crow Treaty

by Michael C. Dorf

On Monday, in Herrera v. Wyoming, the Supreme Court ruled that an 1868 treaty between the Crow tribe and the US entitled a tribe member to hunt elk in violation of state law. The case divided the Court on mostly ideological grounds, with Justice Gorsuch breaking ranks to join the liberal wing in a 5-4 majority opinion authored by Justice Sotomayor. However, the actual substance of the disagreement was not ideological.

Justice Alito and the remaining conservatives dissented on the ground that a 1995 Tenth Circuit case involving the Crow had definitively resolved the issue, so that Herrera was bound under the doctrine of issue preclusion. Other than an aside deeming the majority's construction of the treaty "debatable," the dissent did not address the core issue. Meanwhile, the majority opinion is curious in a number of respects and raises an important question about general rules and exceptions.

Wednesday, May 22, 2019

Judge Mehta's Subpoena Ruling is a Tour de Force: SCOTUS Can Undo It Only Through Partisan Hackery

by Michael C. Dorf

On Monday, US District Court Judge Amit Mehta issued a thorough and persuasive opinion rejecting the arguments by President Trump's personal lawyers for an order invalidating a congressional subpoena for financial records that was issued to an accounting firm that has worked for Trump and his businesses. The next stop for the litigation will be the US Court of Appeals for the DC Circuit and thence the Supreme Court. As I'll explain, Judge Mehta's opinion makes clear that the law clearly favors Congress (really the House) in this dispute. That does not guarantee that Trump will ultimately lose. However, Trump can only prevail in the SCOTUS if the conservative majority engage in hypocritical partisan hackery.

Tuesday, May 21, 2019

Trump Is Part of A Scary Global Trend, But He Is Still a Bad Joke

by Neil H. Buchanan

There is a worrisome and puzzling trend, not merely among the punditocracy and politicians but even among journalists who purport to be neutral arbiters of the facts, to treat Donald Trump's reelection chances as not only strong but perhaps even insurmountable for Democrats.  Last week, I wrote a column decrying that trend, arguing that Trump's deep unpopularity -- and his unwillingness to do anything but feed the blood lust of his base -- all but guarantees that he will lose in 2020, probably by a large margin.

To be clear, even if my prediction is correct, I still believe that we will then face an existential constitutional struggle, because it is inconceivable that Trump will accept losing -- by any margin.  We might already be in the end stages of our constitutional democracy with no way to save it, even as we naively think that there is still a way back.  (Whatever else I might think about Joe Biden, I do admire his willingness to build a campaign around the idea that America is better than Trump and can be renewed.)  That possibility should be everyone's central concern.

In addition, I readily concede that my prediction could turn out to be wrong for a number of reasons.  Republican efforts to suppress the votes of minorities and young people will intensify.  The Democratic nominee might not be able to motivate her (or his) voters to turn out, although that seems highly unlikely.  The media could once again play along with a ridiculous smear job, painting the Democrat as corrupt or worse.  Trump supporters could physically block access to voting booths in Democratic areas.  And so on.

This might not, in other words, end well.  But today's question is how to think about Trump's fundamental weakness in a world in which people like him are becoming stronger and stronger.  He might be a buffoon, but he is merely one of many buffoons who seem to be having a good run.  Does that global perspective change how we should think about this?

Monday, May 20, 2019

John Bolton Wants a War With Iran. Trump Doesn't. So Why Did Trump Hire Bolton?

by Michael C. Dorf

Yesterday, President Trump tweeted: "If Iran wants to fight, that will be the official end of Iran.  Never threaten the United States again!" The saber rattling seems calculated to undercut the emerging view of Trump as the dovish good cop to National Security Adviser John Bolton's bad cop. After all, just a few days earlier, the Washington Post reported that Trump has been frustrated by the hawkish views of Bolton and Secretary of State Mike Pompeo, both of whom seem to be itching for a war with Iran.

Despite yesterday's tweet and Trump's denial of any "infighting," the WaPo report rings true. After all, Pompeo and especially Bolton have long been hawks on Iran, whereas Trump came to office exaggerating his past opposition to the Iraq War but genuinely seeming to disdain further commitments of US troops to war in the Middle East. It was one area where he seemed to outflank Hillary Clinton to her left, and sensibly so, even if Trump's primary motivation was backwards (chiefly aiming to save treasure and only secondarily hoping to avert bloodshed).

Given the difference in perspective, some tension was inevitable. So why did Trump select Pompeo and Bolton? I'll offer a few thoughts here, none of them especially reassuring.

Sunday, May 19, 2019

Roe, Judicial Review, and the Myth of Abortion as a Constitutional Outlier

By Eric Segall

In Roe v. Wade, seven Supreme Court Justices signed on to an opinion detailing the substantial burdens on women and their families of abortion bans and balanced those harms against the states’ interest in the health of the mother and life of the fetus. They came up with the famous or infamous trimester approach which in practice resulted in a bifurcated regulation of state abortion laws. Prior to viability, states had little authority to regulate abortion while after viability states could ban all abortions subject to exceptions for the health and life of the mother. Eventually, Planned Parenthood v. Casey modified the law to allow regulations on abortion that do not amount to an undue burden on a woman’s right to choose, but complete bans were still unconstitutional until after viability.

There is a myth propounded by legal scholars, commentators, pundits, and even Supreme Court Justices that Roe as initially decided, and later Casey, are constitutional outliers. That, leaving aside the admittedly difficult policy implications triggered by the issue, the Court’s abortion jurisprudence was somehow constitutional interpretation at its worst. For example, Professor Michael Paulsen wrote that the problem with Roe “is that it has absolutely no basis in the text, structure, or history of the Constitution. No rule or principle of law fairly traceable to the text...structure, or ... historical understanding of an authoritative decision of the people, remotely supports the result reached in Roe. In terms of fair principles of constitutional interpretation, Roe is perhaps the least defensible major constitutional decision in the Supreme Court’s history.”
Similarly, Justice White dissenting in Roe said that “the Court engages not in constitutional interpretation, but in the unrestrained imposition of its own, extra-constitutional value preferences." And even the famous liberal and pro-choice constitutional law professor John Hart Ely famously said that Roe “is not constitutional law and gives almost no sense of an obligation to try to be.” I could reproduce hundreds of similar quotes concerning Roe and its allegedly illegitimate method of constitutional interpretation.
This criticism is utter nonsense. Roe and Casey may be right or wrong, or good or bad, but they are both typical examples of how the Court decides, has always decided, and will likely always decide, constitutional questions, just with larger stakes. No reasonable person can deny that requiring a woman to carry a fetus to term against her will is a serious denial of her personal freedom that carries substantial unwanted consequences. It may also be true that the states’ interest in the fetus’ right to life outweighs that infringement, but that difficult balancing of important and conflicting values is commonplace in constitutional law. As Dean Erwin Chemerinsky has said, “the desire for value-neutral judging in constitutional cases is an impossible quest because the need to balance competing interests is inescapable ….”

Friday, May 17, 2019

Trump Is an Accident, Not an Intimidating Force

by Neil H. Buchanan

A bit more than two months ago, the title of one of my columns asked: "Is the 2020 Election Going to Be An Easy Win for Anyone the Democrats Nominate?"  There, I made the case that Trump simply will not be able to break above his pathetic job approval numbers, if for no other reason than that he is not even trying to appeal to anyone but the forty percent of the country that has already quaffed his Kool-Aid.

It would, of course, be foolish for Democrats to take a win in 2020 for granted.  Setting aside my oft-stated belief that Trump will not peacefully leave the White House no matter how convincingly he loses next November 3, it is essential that Democrats not take anything for granted.  Republicans will continue to suppress the votes of young and nonwhite people, and Trump is even more shameless than the Republicans about sliming his opponents (which is quite an achievement).

Moreover, Democrats should have learned from 2016 that turnout is everything.  Hillary Clinton was by far the preferred choice of American voters, but millions of people used the (accurate) polls predicting her easy win as a reason not to bother helping her win.  Today, it is certainly wise for Democrats to keep each other on edge, lest they think that the ignoramus in the White House could never bumble onto another strange path to an electoral win.

But we are now looking at the downside of that vigilance.  Actually, two downsides.

Thursday, May 16, 2019

Between Tyranny and Civil War: Trump's Dangerous Tweet, Venezuela, and Game of Thrones (Contains Spoilers)

by Michael C. Dorf

Recently, Donald Trump retweeted a suggestion by Jerry Falwell Jr. that he, Trump, ought to get two extra years added to his presidency, because the Russia investigation improperly robbed him of his opportunity to govern during the first two years of his term. According to the Washington Post, White House officials said Trump was joking. Although Trump is not exactly renowned for his sense of humor, we can probably assume that he has no plans to seek two extra years.

However, as Prof Buchanan has repeatedly warned (e.g., here with links to prior warnings) there are reasons to worry that Trump could refuse to accept an electoral defeat through bogus claims of voter fraud and similar shenanigans. Speaker Pelosi takes this prospect seriously enough to have said that the 2020 Democratic presidential candidate needs to win by such a large margin as to render any contest by Trump untenable. And as the WaPo story linked above reminds readers, during a 2016 debate with Hillary Clinton, Trump twice refused to commit to accepting the results of the election if he lost.

Thus far, most discussion of these episodes has focused on how Trump undercuts our democracy and thus brings us closer to tyranny. That is indeed a serious concern, but Trump's dalliance with non-democratic means of achieving and retaining power also risks what might be regarded as tyranny's mirror image: civil war and anarchy.

Wednesday, May 15, 2019

The Stare Decisis Issue in the State Sovereign Immunity Case (Media Critic Edition)

by Michael C. Dorf

For a case that decided a relatively obscure question -- whether an implicit constitutional principle of sovereign immunity shields a state from lawsuits in the courts of other states -- Monday's SCOTUS ruling in Franchise Tax Board of California v. Hyatt -- garnered considerable media attention. The Washington Post ran two stories (here and here); so did the NY Times (here and here), adding as a bonus an op-ed by Prof. Leah Litman; and NPR's Morning Edition devoted a 3-and-a-half-minute segment to host Rachel Martin's interview of SCOTUSblog's Amy Howe about the case. Who knew the public cared so much about state sovereign immunity?!

But of course the media coverage reflects something else entirely. Justice Breyer's dissent in Hyatt criticized Justice Thomas's majority opinion for inadequately justifying the overruling of Nevada v. Hall, a 1979 case that had come out the other way. Most of the media coverage of Hyatt focused on whether the Court's willingness to overrule Hall portends a willingness to overrule more consequential precedents, especially Roe v. Wade.

That's fair enough, I suppose. The relatively small number of people who want to know what's really going on can read the case itself. They (by which I mean you, dear reader) can also consult my latest Verdict column, in which I provide some context for the sovereign immunity issue before pivoting to the question whether Justice Thomas's reliance on constitutional structure and history contradicts the criticism he and other conservatives frequently level at liberals for finding implied rights in the Constitution. (Spoiler: It does.)

Here I want to critique some of the media coverage of the stare decisis issue in Hyatt and beyond, before setting forth my own analysis of the stare decisis question. I'll focus most of my attention on the NPR segment, because it best exemplifies what goes wrong when journalists without any legal expertise try to cover even modestly complex legal issues.

Tuesday, May 14, 2019

Atheists, Public Life, and Condescension

by Neil H. Buchanan

"[I]n some parts of secular, liberal America, there is a skepticism about religion that can veer into disrespect."  I pulled that quote from a short column today by New York Times columnist David Leonhardt, who was otherwise arguing that atheists are subject to discrimination in American public life.  Why the swipe at liberals?  And no matter the reason, is what he wrote true?

I qualify as a denizen of secular, liberal America, and I certainly am skeptical of religion.  I am more than willing to say that my skepticism -- with very important caveats and in context -- does not merely "veer into disrespect."  I respect people's right to practice religion and to make personal decisions based on religious beliefs, but do I respect the substance of those decisions?  Not inasmuch as they are justified by simple reliance on religion.  Do I disrespect the people who make those arguments?  Sometimes yes, sometimes no.  Let us dive deeper into this question.

Monday, May 13, 2019

Fiscal Hardball: House Democrats Need to Use Their Appropriation Authority to Rein in the Out-of-Control GOP

By Eric Segall

(Cross-posted @ TakeCare)

The United States Constitution places the initial power to fund the entire federal government squarely in the hands of the United States House of Representatives. Article I provides that “All Bills for raising Revenue shall originate in the House of Representatives….” Moreover, "no Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The Founding Fathers intentionally placed this spending authority in the “People’s House” because  it, as opposed to the Senate, “was more immediately the representatives of the people, and it was a maxim that the people ought to hold the purse-strings.” Although the Senate may add amendments to bills suggesting government spending, the House has to agree before such a bill may become law.
Today, the Democrats, and the people they represent, hold these all-important purse strings, and they should use them to fight the on-going rule of law violations and norm breaking behavior being committed by the Republican controlled Senate and President Donald Trump. For example, the House wants to and should have the right to see the entire Mueller Report, but it is being stonewalled by broad and “bogus” executive privilege objections and other political machinations by the Trump Administration (legitimately privileged materials could be reviewed by members of the House outside the public eye). No doubt the House will seek judicial relief, but that could take months or longer, and given the five Republicans on the Supreme Court, the outcome will be very much in doubt. 

Friday, May 10, 2019

Is Philosophy Easy? Too Many Economists Seem to Think So

by Neil H. Buchanan

In my columns, I often address economists' substantive arguments, such as my recent columns (here and here) severely criticizing the "modern monetary theory" true believers who largely populate Bernie Sanders's and Alexandria Ocasio-Cortez's ranks of advisors.  Those critiques are not objections to economists' attempts to wade into territory where they do not belong but are instead simply about muddle-headed economics.

One of the recurring themes of my columns over the years, however, has been to observe and comment on economists who, in the now-current phrase, do not stay in their lane.  Back in 2013, for example, I wrote (here and here) about economists who, as I phrased it, try to "commit politics."  The idea was that, whatever one might think about the skill set that is drummed into economists from Day One of their first undergraduate course -- and, to be clear, my thoughts about that brainwashing exercise are not kind -- it is almost touching to watch these guys flail about when they try to discuss political issues.

The reason for their difficulty is abundantly clear.  Nearly all economists constantly reinforce the idea among themselves that they are wise and neutral scientists who have divined the truth, if only the venal and stupid politicians would listen.  When it comes time to engage with those politicians, then, economists apparently assume that politics is easy (no math required!), which means that anyone can do it.  "And if," such an economist might think to himself, "I am willing to lower myself to talk politics, I don't need to do any actual work or preparation, because it's all just a matter of instructing a bunch of simpletons with my brilliance.  How hard could that be?"

Good question.