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.

Thursday, May 09, 2019

William Barr is Trump's Roy Cohn, But Are Neil Gorsuch and Brett Kavanaugh His Warren Burger, Harry Blackmun, and Lewis Powell?

by Michael C. Dorf

Frustrated by then-Attorney General Jeff Sessions's display of integrity in recusing himself from the Russia investigation, Donald Trump famously asked "Where's my Roy Cohn?". The question would be shocking if the public had any capacity left to be shocked. After all, thirty years before Trump's expression of longing for Cohn, the infamous red-baiter was disbarred for "dishonesty, fraud, deceit and misrepresentation." The notion that such a character ought to be the country's chief law enforcement official is extraordinary.

As House Intelligence Committee Chair Adam Schiff observed, in William Barr, Trump finally may have his Roy Cohn. I do not wish to suggest that Barr's massive spinning of the Mueller Report or his parroting of Trump's accusations of "spying" rises to the level of Cohn-esque sins, but I would hardly be alone in noting that in the sense that Trump cares about most, he appears to have found his Roy Cohn in Barr: a lawyer who draws a paycheck from the US Treasury but, to the maximum extent possible, operates as a mouthpiece for Trump the man rather than the institutional interests of the US or even the presidency.

There may be wisdom even in scoundrels. Roy Cohn was a crass version of what we academics would call a "legal realist." He used to say: "Don’t tell me about the law, just tell me who the judge is." Well, when it comes to the looming legal battle over executive privilege, we know who the judges are: the nine justices of the Supreme Court.

In this column, I consider how the Supreme Court might handle a dispute involving executive privilege. I note as an aside that not every clash between Congress and those resisting its inquiries will involve executive privilege. For example, as I discussed last week, we could also see litigation over what counts as a legitimate congressional inquiry. But for now, let's focus on executive privilege.

In United States v. Nixon, a unanimous Supreme Court rejected President Nixon's blanket assertion of executive privilege, thus affirming a lower court order that Nixon hand over tapes subpoeanaed by a district court judge on an application by Watergate special prosecutor Leon Jaworski. The Court's opinion was written by Nixon appointee Warren Burger and joined in full by seven other Justices, including Nixon appointees Harry Blackmun and Lewis Powell, Jr. (Nixon's fourth appointee, William Rehnquist, did not participate). Less than three weeks later, Nixon resigned. Should a current conflict between the president and Congress reach the Supreme Court, will Trump's appointees likewise turn their back on the man who put them where they are now?

Wednesday, May 08, 2019

Michael Lewis Doesn't Think To Ask Whether Compensation for Lost Wages Makes Sense

by Michael C. Dorf

Longtime readers of this blog know that I am a sometimes-critical fan of author Michael Lewis. (Here are links to my columns on The Big Short, Flash Boys, and Boomerang. I have also occasionally made reference to Liar's Poker, Moneyball, and The Blind Side.) Lewis now has a podcast called Against the Rules that is generally quite good, although, like some of his other work, a bit too taken with its framing metaphor. The basic idea Lewis explores is that neutral arbiters have increasingly come under fire in a wide variety of contexts, which is dangerous, because societies need neutral arbiters.

Episode 5, The Neutral, begins with a story about how difficult it is to be a referee, before turning to the remarkable case of Ken Feinberg, who, over the last four decades, has become the country's go-to authority for divvying up victim compensation. Lewis rightly expresses amazement that one individual wields as much power as Feinberg does, eventually pivoting to the characteristics Feinberg possesses that enable him to play this role effectively. Before that pivot, however, the podcast contains a discussion of victim compensation in tort that warrants some discussion and very substantial criticism.

Tuesday, May 07, 2019

An Intermediate Step Toward Trump's Refusal to Leave: Mocking the Realists

by Neil H. Buchanan

As one of the people who has been willing to state openly for years that Donald Trump will not leave the White House under any circumstances short of being dragged out by uniformed officers, I have been trying to imagine and then explain how what was once unthinkable will actually go down.  It now seems that I have left out a step: intramural mockery among anti-Trump politicians and commentators.

Seeing the process in its beginning phases is both depressing and somehow seems entirely predictable (even though I never predicted it).  Understanding how it works is important and perversely fascinating.

Monday, May 06, 2019

Conservatives Have Less to Fear From the Title VII LGBT Cases Than They Might Think: That's Good and Bad

by Michael C. Dorf

In both a Verdict column and an accompanying essay here on DoL last week, I argued that, if they remain true to their supposed textualist principles, conservatives will rule in favor of the plaintiffs in the LGBT Title VII cases next Term. That earned me scorn from both the right and the left.

From the right, Ed Whelan wrote in National Review that I, as a liberal, oughtn't to presume to tell conservatives what they ought to do, which is fair enough, I suppose, but he went on to say that I was wrong to criticize Judge Gerard Lynch's dissent in the Second Circuit case for distinguishing between dynamic implementation of a law and dynamic understandings of a law's purpose. "[T]he correct implementation of a law’s meaning can go beyond the drafters’ specific intentions," Whelan contended, but "claims about a law’s purpose can’t alter or supplement that meaning."

I'm not sure that's right, but as I argued on Twitter (to the extent that one can argue anything on Twitter, as opposed to merely asserting), the plaintiffs in the Title VII LGBT cases do not need to make any sorts of claims that the purpose of Title VII has altered or supplemented its meaning. Rather, as I explained in both the column and the DoL essay, the argument for the plaintiffs is that the meaning of discrimination based on sex always should have extended to cover anti-LGBT discrimination, even though the Congress that adopted Title VII did not intend it to do so.

Meanwhile, from the other side, various critics thought me naive for taking seriously the possibility that conservative justices would follow their jurisprudential commitments at the expense of their ideological ones. I get the criticism. One needn't think that conservatives are especially hypocritical to think that all judges and justices tend to see cases first in terms of their ideological priors and only then in terms of their ostensible jurisprudential commitments.

That said, I think that there are reasons to think that the conservatives' priors aren't--or at least oughtn't to be--very strong here. Unfortunately, those reasons are also a double-edged sword.

Friday, May 03, 2019

How Character Is Revealed: Barr, Comey, McConnell et al.

by Neil H. Buchanan

Donald Trump's personal defense attorney Bill Barr -- currently masquerading as the Attorney General representing the people of the United States -- has had quite a month.  Now, faced with a shockingly evasive and dishonest series of statements and actions by Trump's man, Barr's allies are pointing to the time after Barr was nominated to his current job, when plenty of people said good things about his integrity, being a "lawyer's lawyer," and all that.

None of that is actually relevant, of course.  Everyone had good reason, as they always do when a new person is hired, to hope for the best and to look for reasons to feel that such hope is justified.  Moreover, Barr was replacing an interim AG (Whittaker) who was a walking joke, who in turn had replaced the most nakedly partisan AG (Sessions) imaginable -- until now, of course.  Surely, having a former AG who had served a conservative (but not hyper-conservative) president in the previous century would turn out well, right?

We now know the answer, with Barr having added "snitty" to the nation's lexicon in the process of attacking the integrity, intelligence, and maturity of people who dared to challenge him.  Trump, as one conservative Washington Post columnist put it, "has finally found someone who licks his boots out of principle."  Ouch.

The most interesting analysis of Barr's behavior that I have seen comes from former FBI Director James Comey, who tried to explain in The New York Times earlier this week how people like Barr and now-departing Deputy AG Rob Rosenstein could become such toadies to Trump.  His short answer: Lack of character.

I think there is a lot to that theory, but it also leads me to think about the other people who are supposedly of high moral character who were supposed to stand up to Trump, especially Republicans in the Senate.  Whereas Comey is talking about people who had always acted decently and honorably but failed the test of resisting a menace, Senate Republicans (and, to be clear, many other Republicans at all levels of government) are people who have failed to act decently forever but were presumed to have a reserve of principle that would emerge when the time came.

In short, Comey is talking about morally empty people who had been acting morally almost on autopilot; I am talking about people who had been acting immorally but who were thought not truly to be morally empty.  But they are.

Thursday, May 02, 2019

"Free Speech, Free Press. Free Society?"

By Eric Segall

Today is “Law Day,” for which I have the pleasure of giving talks to the Savannah and Augusta Bar Associations on the assigned topic “Free Speech, Free Press, Free Society?” This blog post summarizes some of the ideas I shall express during those events.

There is little doubt that America values free speech and a free press far more than any other democracy in the world, even at times at the expense of other important values. Here are some representative examples.

Wednesday, May 01, 2019

The LGBT Plaintiffs in the SCOTUS Title VII Cases Do Not Rely on Changed Meaning

by Michael C. Dorf

In my latest Verdict column, I discuss the textualist argument for finding that Title VII covers LGBT discrimination, an issue on which the SCOTUS granted cert last week. I more or less endorse the view expressed by Chief Judge Katzmann of the US Court of Appeals for the Second Circuit: (1) The prohibition on discrimination based on sex encompasses a prohibition on discrimination based on sexual orientation or gender identity because of the necessary connection between both of the latter and sex; and (2) the case law already forbids much sex-role stereotyping of precisely the sort that is ingredient in LGBT discrimination. I consider counter-arguments that purport to work within textualism and find them lacking. I conclude therefore that the only plausible basis for ruling against the plaintiffs would have to rely on the fact that in 1964 the Congress that enacted Title VII did not subjectively intend or expect to forbid LGBT discrimination.

One could frame the issue somewhat differently. On DoL last week Prof Segall praised the "honesty" of Judge Posner, who characterized his court's determination that Title VII covers LGBT discrimination this way: "we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted."

Although Prof Segall and I reach the same bottom line and take broadly similar views about these cases, here I'm going to push back a little against that characterization. My main objection concerns Judge Posner's use of the word "meaning." When courts say that "sex discrimination" encompasses sexual orientation and gender identity discrimination even though the Congress that forbade sex discrimination in employment would not have expected or endorsed that conclusion, they are not imposing a new "meaning" on the term "sex discrimination." Rather, they are holding that the meaning of "sex discrimination" has entailments that the 1964 Congress did not realize. That might seem like splitting hairs, but the difference has implications for the persuasiveness of the plaintiffs' argument with self-described textualist justices.

Tuesday, April 30, 2019

The Bernie Sanders Problem, and Why Intramural Fights on the Left Matter

by Neil H. Buchanan

Many of my columns of late have walked a bit of a tricky path, defending Bernie Sanders from attacks by establishment Democrats and the press (see, e.g., here and here), and describing Sanders's policy proposals as very mainstream and reasonable (e.g, my recent two-parter, here and here), even while stipulating over and over that I am not a Bernie fan.  I have not, however, devoted much time to explaining why I am not said fan.

This requires some explanation.  After all, if Sanders is being unfairly attacked by people for whom I have disdain -- and especially if he is proposing sound and reasonable policies -- why not jump on board the Bernie train?  I will try to make sense of that seeming contradiction in this column, along the way explaining a deep divide among non-conservative economists.

The bottom line is that being against what is wrong does not always make one right, because it is still possible to be wrong in a different way.

Monday, April 29, 2019

Congressman Cummings Should Rely on Impeachment and Emoluments Supervision to Justify the Trump Accounting Firm Subpoena

by Michael C. Dorf

On Thursday, I discussed the use of the pejorative "Democrat Party" in a complaint filed by lawyers working for Donald Trump (in his personal capacity) and various Trump companies. I worried that the practice has spread from the frothing right to what now passes for the mainstream right. My worry was well-founded. That very day, Deputy Attorney General Rod Rosenstein displayed his partisanship by using "Democrat" as an adjective--ironically enough in a phrase that purported to disavow partisanship ("There is not Republican justice and Democrat justice. There is only justice and injustice.") It's possible that Rosenstein did not realize that he was using a slur, but if so, that only shows that he moves in such highly partisan Republican circles that he routinely hears the slur rather than the proper name of the Democratic Party.

For now, I want to double back to a question I bracketed last week: the merits of Trump's lawyers' complaint. In a nutshell, their argument goes like this: (1) The challenged subpoena seeks information regarding Trump's pre-presidential conduct that might or might not bear on whether he or others committed crimes but does not bear on any pending or possible future legislation; (2) "investigations are legitimate only insofar as they further some legitimate legislative purpose"; and therefore (3) the subpoena should be quashed because to enforce it would permit Congress "to exercise powers that the Constitution assigns to the executive or judicial branch."

Here I want to focus on point (2).

Friday, April 26, 2019

Did Anything Interesting Happen While I Was Gone?

by Neil H. Buchanan

As I have noted in various recent columns (most recently here), since late January I have been on a semester-long trip to the UK and some other northern European countries.  With my return to the United States scheduled for this coming Monday, this is my last Dorf on Law column from the other side of the Atlantic (for now), which presents an opportunity to reflect on what has happened over the last three months in my home country.

Before getting to those larger issues, I will note that the biggest change for me personally since I left the U.S. is that I have accepted the James J. Freeland Eminent Scholar Chair in Taxation at the University of Florida.  I continue to be excited about this next stage in my career, in particular because UF is giving me the resources needed to continue my research collaborations with scholars abroad while potentially bringing graduate tax students to Gainesville for our top-tier LL.M. and J.S.D. programs.

With my last stop in Europe being Amsterdam, the capital of a country one-sixth of which is below sea level, perhaps this is an apt way to launch my move to the state of Florida, which might soon need to borrow some Dutch technology to keep out the rising ocean waters.  Should I ask around during my visit here?

Unfortunately, as a friend of mine who grew up in the Caribbean (and thus knows something about these things) told me, Florida's land sits atop porous rock, which means that rising seas will simply come up from underneath.  Yikes!  Talk about a time-limited gig.  By the time I leave UF, I might end up moving back to the exciting new Atlantic beaches of Washington, D.C.  Who needed the Chesapeake Bay, anyway?

Although I am very good at denial in some ways, however, I have been insistent on seeing with brutal clarity what is happening politically in the U.S. and elsewhere in the world.  Which brings me back to a reflection on the non-personal issues that have dominated the news over the past three months.  This is an especially important exercise because, as many have noted, the news cycle has become so accelerated that there are very few opportunities to take a breath and think about what has been happening with any sense of perspective.

Thursday, April 25, 2019

Trump Lawyers Use "Democrat" as an Adjective: How to Respond

by Michael C. Dorf

On Monday, Donald Trump (in his personal capacity) and various Trump-affiliated companies sued Congressman Elijah Cummings and the Chief Investigative Counsel to the House Oversight and Reform Committee, seeking to block the subpoena issued by the House to an accounting firm demanding various Trump-related financial records. The complaint alleges that the subpoena exceeds the Committee's authority because it is unrelated to any potential legislation.

I am not interested right now in whether the complaint has merit. Rather, I want to focus on the repeated references in the complaint to the "Democrat Party."

Wednesday, April 24, 2019

Is Nollan Just an Exactions Case? Reflections on Nollan and Horne (Guest Post by Stanford Law Professor Mark Kelman)

by Mark Kelman 

In the canonical case of Nollan v. California Coastal Commission, the Supreme Court held that the California Coastal Commission was obliged to compensate parcel owners who had surrendered a lateral easement across the dry sand adjacent to the sea wall between their home and the ocean only because the Commission conditioned the grant of a building permit to expand their home on the surrender of the easement. The case limits state power in two important, widely recognized ways.  In Takings law terms, a state cannot argue that it has not taken but been granted property when it exploits its power to provide desired but gratuitous benefits to extort “voluntary” transfers; property is taken, not truly granted, unless the permit condition serves the same legitimate policy purpose as a refusal to issue the permit would have served. Read as a case on unconstitutional conditions, Nollan helps fortify the important point that greater powers need not entail lesser powers.  The government cannot make a party forfeit a constitutional right to in order to receive a gratuitous benefit.  Just because State U needn’t grant Professor P tenure, it cannot condition a tenure grant on a free speech restrictive agreement to desist from criticizing the governor; just because the state need not grant a building permit, it cannot condition a permit grant on surrendering ther right to be compensated for a taking.

What we seem to have forgotten, though, is that Nollan did not just limit state power. Properly understood, the Nollan case should be read to protect the state’s flexibility when it is choosing between multiple policy instruments designed to meet the same ends.  What Nollan teaches us is that the state should not choose some particular policy instrument  simply because it will be free from the obligation to compensate if it uses one straightforward regulatory method but not some alterantive method that involves a traditional taking, at least so long as the second policy instrument is Pareto-superior to the first, (not worsening the position of the parcel owner. In Horne v. Department of Agriculture, the Court reads Nollan quite narrowly, as it has generally come to be read, as a case solely about developer exactions, and loses sight of the fact that the case is in significant part about maintaining Takings-law neutrality among Pareto-superior policy instruments that meet the same goals.  The narrow result of the Horne litigation, effectively ending a program of dubious merit, is hardly tragic, but the misunderstanding of the true import of Nollan may be.

Tuesday, April 23, 2019

Judge Posner, Title VII and Why Sexual Orientation Discrimination is Discrimination Based on “Sex”

By Eric Segall

The United States Supreme Court granted certiorari on Monday in two cases raising the issue whether the federal employment discrimination statute, commonly referred to as Title VII, which prohibits employment discrimination based on “sex,” protects gays and lesbians from discrimination based on their sexual orientation. The lower courts have divided on the issue, and there have been numerous judicial opinions discussing the question. These cases raise important and controversial issues of both public policy and statutory interpretation.

The public policy question, which potentially affects millions of Americans and their employers, is whether federal law provides protection for gays and lesbians from discrimination on the basis of their sexual orientation. The statutory interpretation question is how judges should interpret ambiguous terms in old statutes when we know how the drafters would have interpreted those terms, but society has changed dramatically in the period between the adoption of the law and the present controversy.  

The most honest opinion so far on both of these issues was written by (retired) Judge Richard Posner in an en banc concurring opinion for the Seventh Circuit Court of Appeals (that case is not one of the ones the Court decide to hear but raised identical issues).

Giving the Moderation Obsessives a Fair Hearing

by Neil H. Buchanan

I admit up front that calling the subjects of today's column "moderation obsessives" would seem to undermine my claim that I plan to give them a fair hearing.  Yet it is difficult to think of a more accurate description, given that many somewhat liberal Democrats and former Republicans seem to think that moderation is the be-all and end-all of winning elections.

More to the point, even though I am amused by their single-mindedness, that does not stop me from trying to find where they might have a good argument and where we might actually agree.

In any event, today I am going to use New York Times op-ed columnist David Leonhardt as a leading example of a moderation obsessive.  That does not mean, however, that he is addicted to centrism, and he is even willing to say obviously true things (such as "Donald Trump should be impeached" -- even before the redacted Mueller report was released) that make many wimpy Democrats blush.

He is not, in other words, generally in the business of trying to prove that he thinks that Democrats can win by being even more accommodating to the increasingly out-of-touch Republican Party.  That makes his repeated claims that Democrats are committing the political sin of too much leftiness especially puzzling and worth exploring.

Monday, April 22, 2019

Pretexts in the Travel Ban Case, Method-of-Execution Cases, the Assange Indictment, and More Generally

by Michael C. Dorf

"Even a dog," Oliver Wendell Holmes, Jr. wrote in The Common Law, "distinguishes between being stumbled over and being kicked." Today, as in 1881, when Holmes wrote those words, intentions matter in the law. They can be the difference between criminal and innocent conduct, between  liability and non-liability, between constitutional and unconstitutional actions. And yet illicit intentions can be notoriously difficult to prove.

Moreover, in at least some contexts, making intentions dispositive can be problematic in principle. If it is unconstitutional for a municipality to close its public swimming pools rather than desegregate them (as four justices would have held in Palmer v. Thompson), must the municipality keep the pools open forever, even though it had no obligation to operate swimming pools in the first place? If not, for how long must it keep the swimming pools open? What if the bad actor cites some facially plausible reason that is not the real reason for its bad act? Should the law disallow it as a pretext?

I addressed some such questions in a 2016 essay in the Harvard Law Review's online supplement in response to an article on forbidden legislative intent by Prof. Dick Fallon in the main issue of the HLR. I don't want to rehash our respective points here. Instead, I want to use three recent events to raise some further questions. After recapping an argument I made last year about the Muslim Travel Ban and the Masterpiece Cakeshop cases, I'll focus on some recent death penalty cases in the SCOTUS and the Julian Assange indictment.

Saturday, April 20, 2019

Mueller's Mistake: A Criminal Trial is not an Opportunity for the Defendant to Clear his Name

by Michael C. Dorf

Special Counsel Robert Mueller accepted the Justice Department policy barring indictments of a sitting president. He could have nonetheless made a determination whether Trump would be subject to indictment based on his conduct as evaluated under the governing statutes and Justice Department policies if Trump weren't president, but Mueller declined to do so. Why? According to the Mueller Report (Vol 2, page 2):
Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.
In my view, that statement badly misunderstands the nature of a criminal trial.

Friday, April 19, 2019

Mueller Report Counterspin: We Still Don't Know Why Trump Denied Russian Interference

by Michael C. Dorf

Attorney General Barr, President Trump, and their FoxNews amen chorus spent several weeks spinning what turns out to be a substantially fictional version of even the redacted Mueller Report. Now the rest of us weigh in. Here I'll offer both a substantive and prescriptive take for everyone who regards Trump's presidency as a disaster.

My bottom line is this: The Report could but won't be used as the basis for impeachment. Meanwhile, it leaves two fundamental questions unanswered. First, why, both during and after the campaign, did Trump repeatedly deny Russian efforts to interfere with the election, when he must have been well aware of them? Second, if they had nothing to hide, why did so many of Trump's close associates lie to Mueller's team and why did Trump--whether or not he committed acts that are chargeable as obstruction under DOJ policy--repeatedly try to undercut the investigation?

I don't have definitive answers to those questions. I do have an important takeaway, however: even the most innocent explanations should be EXTREMELY damaging to Trump.

Thursday, April 18, 2019

The Attacks on Sanders Are Almost All Scurrilous

by Neil H. Buchanan

This week has seen increased discussion of intensifying conflict between Bernie Sanders and the Democratic Party's establishment, including a prominently placed New York Times article describing a group of "Stop Sanders" Democrats who are "agonizing" over what to do about him.

This is, of course, the opposite of news.  The only question is whether the anti-Sanders forces (which means basically everyone with any power in the party, including all of the big and medium-sized donors) will decide that they hate Sanders so much that they will tear him down at all costs, up to and including tacitly endorsing Donald Trump's reelection.

To be clear, I am not offering here a now-standard "You guys are helping to reelect Trump!" attack on the people I disagree with -- at least not yet.  Among other things, as I have made clear again and again, I am emphatically not a Sanders fan.  I do like most of his policy positions, but so much of the party has coalesced around those positions -- definitely thanks to Sanders's influence -- that one can easily find a candidate who is as good as or better than Sanders on policy.

I am thus very much in favor of standard in-fighting in a nominating campaign.  That is what primary campaigns are all about, and everyone who writes columns at this point talking about the "divided Dems" is simply on journalistic/pundit autopilot.

Therefore, if the Stop Sanders people want to make a reasoned case against Sanders, they should do so.  I obviously have my own thought process that has caused me to continue to reject him as the best choice for a nominee, but at this point my time seems better spent making the case against the anti-Sanders people (making me a Stop-Stop Sanders Democrat?), including my recent column puzzling over the establishment's love affair with Joe Biden.

Here, I want to pursue two related thoughts.  First, it is necessary to continue to push back against the demonization of Sanders.  Second, I will agree that there is one uniquely worrying problem lurking in the democratic socialist non-Democrat's campaign, and that is the possibility that he will respond to losing -- no matter the circumstances -- by claiming that the election was rigged.

Wednesday, April 17, 2019

Ask the Professor Part 1: Did the Fifth Amendment Impliedly Repeal the Natural-Born-Citizen Requirement for the Presidency?

by Michael C. Dorf

Today I'm inaugurating a new series of occasional blog posts in which I answer questions from readers. As those of you who visit the blog directly may know, I often respond to interesting questions or criticisms that readers pose in the comments, but I have found lately that between the comments section, social media, and email, I've been getting a fair number of interesting questions that call for a response on the blog. Rather than try to force my answers into the news cycle, I will from time to time simply reproduce a reader's question and then offer some thoughts in response. Unless readers publicly identify themselves (e.g., by using a real name in the comments) or expressly granting me permission, I shall post the questions as coming from anonymous sources. I shall sometimes take the liberty of modestly rephrasing questions.

Today I address a question posed by a reader who wants to know what I think of an argument set out in a 2006 law review article by lawyer Paul Clark to the effect that "the Fifth Amendment implicitly repealed the natural-born citizen requirement for the U.S. Presidency." Here is how the reader summarizes the article and addresses a potential counter-argument:
[Clark's] argument is that SCOTUS has ruled that the Fifth Amendment contains an implicit equal protection clause whose scope is identical to the 14th Amendment's explicit equal protection clause and that since any hypothetical state constitutional provision that limited its governorship to natural-born US citizens would be struck down by the courts as being contrary to the 14th A, SCOTUS should likewise nullify the natural-born citizen requirement for the US Presidency as being in violation of the 5th A. 
I know about the presumption against implied repeal, but why exactly should legal constitutionalists have to follow this presumption when this presumption is not in the text of the US Constitution? Just like the US Constitution does not mandate the use of a specific interpretive methodology, it also does not mandate the use of any canons of construction--thus leaving this issue to the people who actually interpret the Constitution to do with as they see fit.
The short version of my response is that I am not persuaded by Clark's argument on its own terms. Moreover, the fact that the US Constitution does not mandate the use of any canons is not especially informative.

Tuesday, April 16, 2019

The Steps to the Unthinkable: Republican Support of a Trump Coup

by Neil H. Buchanan

Ever since Donald Trump became more than a punch line, his dictatorial and more generally anti-constitutional tendencies have caused some of us a great deal of concern.  As I wrote in a column two weeks ago, I am among the people who have been metaphorically running around with our hair on fire for the past three years, warning that Trump's buffoonery and incompetence are no brake against his willingness to ignore and destroy the rule of law.

The response to this warning has been, to put it in one particularly grandiloquent phrasing, that the American system's majesty and genius make it stronger than any one man.  Even if Trump wants to be a king, the system is strong enough to stop him.

Trump and his minions obviously take that argument at least somewhat seriously, which has led them to vilify the supposed "deep state" of people in the system who stand in their way.  Acting Chief of Staff Mick Mulvaney, for example, recently rejected Jake Tapper's description of "experts in your administration" and instead sneered that they were merely "career staffers."  Why, after all, should we trust some people merely because they have spent their careers learning about the issues on which they advise presidents?

This is of a piece with Newt Gingrich's efforts in the 1990's to eliminate expertise from congressional committees and move all decision-making into the Speaker's office, based not on evidence but partisan politics.  Ignorance, in some instances and for some people, truly is bliss.

Still, I do concede that merely because the Trump people are acting like a wannabe junta, it is possible that they will be stopped in their tracks.  I strongly doubt it, as I have argued frequently; but until now, I have not worked through the steps of how our supposedly resilient system might crumble in the face of a man and a party bent on seizing absolute power.

Monday, April 15, 2019

Yale Law School, Ted Cruz, and Religious "Liberty" Run Amok

By Eric Segall

After students at Yale Law School protested the speaking engagement of a lawyer working for the ultra-conservative, non-profit legal organization Alliance Defending Freedom, Yale announced a new policy regarding which organizations may access some of Yale's vast resources. This policy applies to employers that take into account “religion,” “religious creed,” “gender identity” or “gender expression,” among other factors during their hiring practices. According to Dean Heather Gerken, Yale will "not financially support employment positions unless they [are] open to all of our students, including members of the LGBT community." 

This decision is completely within Yale's rights and should be applauded by everyone in favor of equal rights (I have no connection to Yale Law School).

Nonetheless, the religious community responded with outrage that this policy might affect some religious organizations that don't hire gays and lesbians. This discontent led Senator Ted Cruz, always willing to bend truth to serve his own political agenda, to issue an extraordinary letter to Yale Law School, which accuses Yale of adopting a "transparently discriminatory policy: namely, that Yale will no longer provide any stipends or loan repayments for students serving in organizations professing traditional Christian views or adhering to traditional sexual ethics." 

This accusation is totally false. Yale does no such thing but simply denies its funds to any organization that refuses to hire gays and lesbians (or other protected groups). Again, according to Dean Gerken, "our policy does not single out any student based on religion. Nor does it single out any organization based on ideology, litigation strategy, or political goals. Instead, it is designed to protect all students — including the many Christians and other people of faith among our students and alumni." 

Friday, April 12, 2019

What Kind of Education Do We Owe Future Generations?

by Neil H. Buchanan

My European adventure continues, even though my job status has changed while I have been over here.  (Hello, Florida!)  One of the reasons I decided to spend most of a semester on this side of the Atlantic was to work on a book project that I had set aside for quite a few years -- What Do We Owe Future Generations? -- which I discussed in two relatively recent columns here on Dorf on Law, one in late January and the other in early February.

I ended up presenting ideas for the book on what amounted to a speaking tour of the UK and some nearby countries (Ireland, the Netherlands, and Sweden).  The twelve talks mostly (but not always) went over quite well, and they all served the purpose of allowing me to think out loud and to receive questions and suggestions that will significantly move the project along.

My final gig was yesterday afternoon at the University of Gävle (pronounced YEHV-luh, more or less), a medium-sized city about 100 miles north of Stockholm.  Gävle is the home base of Gevalia Coffee (Gevalia being the Latin spelling of Gävle), and the city is known for a hilarious tradition known as the Gävle Goat.

It is also home to an excellent university, where I spent the earlier part of this week at a conference on sustainability organized by Dr. Yvette Lind (who is now leaving Gävle for the Max Planck Institute in Munich), who did the bulk of the work but who benefited from essential contributions by Dr. Mats Landstrom (an economist at Gävle) as well as a little bit of help from me.

Here, I will discuss a question that came up during the question-and-answer period, raised by (I think) a graduate student in the law department.  It helped clarify the issue raised in the title of this column: What kind of educational system do we owe future generations?

Thursday, April 11, 2019

I'm No Bernie Fan, But This Is Getting Ridiculous

by Neil H. Buchanan

There has long been ... shall we say ... concern among even the most liberal of the "respectable" Democratic opinion makers about the prospect that Bernie Sanders could become their party's presidential nominee in 2020.  Lately, however, that concern seems to be giving way to full-on panic -- so much so that the party establishment's overreaction and exaggerated attacks are likely either to spur a sympathetic reaction in Sanders's favor or, worse, to create a schism within the party.

I am fully on the record as being no fan of Sanders.  I do like his policy agenda (more on that below), but I concluded during the 2016 primaries that he was simply not the best candidate either in substance or style.  I thus have received my share of angry emails from Sanders fans claiming that I was on the Clinton Foundation's payroll, that I am no better than Trump, and so on.

But if the anti-Sanders forces were successful in creating the negative Bernie Bro image in 2016 -- and they were, albeit with plenty of help from actual Bernie Bros (who, to be clear, are not representative of Sanders's wider support, even though they are obvious targets for media attention) -- then the danger now exists that the anti-Sanders people themselves are becoming the unthinking bullies who have stopped paying attention to the bigger picture.

Put differently, if even I now find myself feeling sympathy for Sanders, maybe it is time for a recalibration of the debate among those who want Donald Trump out of the Oval Office.

Wednesday, April 10, 2019

Why is the Constitution Authoritative?

by Michael C. Dorf

I was recently asked by a Minnesota high school student to contribute a short essay to a website on which legal scholars and judges answer the following question: "What is the most important aspect of the constitution that is not commonly known across America?" I have reproduced my answer after the jump. As a postscript, I include a few comments on the project as a whole and some of the other contributions.

Tuesday, April 09, 2019

Muslims, Buddhists, Equality, and Time

by Michael C. Dorf

In February, the Supreme Court reversed a decision of the Eleventh Circuit, which had stayed the execution of a Muslim inmate whose request for an imam to be by his side in the execution chamber in light of the fact that the Alabama prison regularly allows a Christian chaplain to accompany Christian inmates.  The vote was 5-4. In March, the Court granted a stay to a prisoner who sought the accompaniment of a Buddhist spiritual adviser in the death chamber, given that Texas allows Christian or Muslim spiritual advisers. The vote was (apparently)* 7-2. Chief Justice Roberts and Justices Alito and Kavanaugh voted against the Muslim inmate in February but (apparently)* for the Buddhist inmate in March. What explains the difference?

One possibility is religious bias. Maybe the justices who changed their votes like Buddhists but dislike Muslims. And maybe Justices Thomas and Gorsuch, who voted against both inmates, dislike both Buddhists and Muslims, while Justices Ginsburg, Breyer, Sotomayor, and Kagan like both. I have no reason to accuse any of the Justices of religious bias, however, and Kavanaugh's concurrence in the Buddhist case expressly condemns discrimination against any particular religion as inconsistent with the Court's precedents.

The only stated explanation for the switch comes in a footnote in Kavanaugh's concurrence in the Buddhist case. He says there: "Under all the circumstances of this case, I conclude that [the Buddhist prisoner] made his request to the State in a sufficiently timely manner, one month before the scheduled execution." In the Muslim prisoner's case, the Court cited the "last-minute" nature of the request--only ten days before the scheduled execution--as a reason for its action. However, as Justice Kagan explained in her dissent in that case, that was only five days after the Muslim inmate's request was denied.

It's possible that the justices who switched saw the timing issue in the two cases as very different. But it's hardly clear why they should have. Indeed, the juxtaposition of the two cases is especially puzzling given their respective procedural postures. Whenever the Supreme Court is asked to provide interim relief, the burden is on the party seeking a reversal of the lower court ruling. Yet the Court granted relief from a stay of execution to the state authorities in the Muslim case and overrode the lower court's denial of relief in the Buddhist case. Had the Court simply favored the status quo, it would have ruled in favor of the Muslim inmate and against the Buddhist inmate. The fact that it did the exact opposite suggests that the justices who flipped must have thought the Buddhist inmate's case was much stronger. And yet the timing difference does not seem to be very great.

Monday, April 08, 2019

In Which I Become Florida Man!

by Neil H. Buchanan

I am very pleased to announce that I have accepted an offer to join the faculty at the University of Florida Levin College of Law.  Specifically, my title will be Professor of Law and James J. Freeland Eminent Scholar Chair in Taxation.  Quite a mouthful!

As Dorf on Law is mostly devoted to legal, policy, economic, and political analyses, this type of announcement is out of our norm.  But given that this blog's authors change jobs less than once per decade, none of this can be called normal.  Here, I will offer some thoughts on UF, why I am moving, and (to fulfill my need to talk about policy) some musings on the state of higher education in the United States today.

I will begin by acknowledging the 800-pound gorilla in the room, noted in the title of this column, which is the Florida Man meme.  For those readers who are blissfully unaware, for the last several years the world has been regaled with stories of the bizarre and humorous (but sometimes deadly and serious) things that make the news in pieces that begin: "Florida man arrested for ..."  This includes throwing a baby gator through a drive-thru window as well as quite a bit of situationally unexpected nudity.  Browse for yourselves.  It is a wondrously weird place.

Indeed, several years ago, in one of my columns discussing home ownership versus renting, I announced that I was buying a house (which was actually consistent with my argument that renting should be the rebuttable presumption, but it nonetheless felt inconsistent).  Joking that I must be talking about some other Neil Buchanan, I provided a link to a website with information about a different Neil Buchanan (not just a different Neil Buchanan but another Neil H. Buchanan), shown in a mugshot.  Guess what state he is from?

Friday, April 05, 2019

The Establishment's Obsession with Joe Biden

by Neil H. Buchanan

Amid the now-standard cacophony that defines the Trump era, arguably the story of the week has been the debate among Democrats and other Trump opposers about Joe Biden's "touching problem."  Even with the continuing realization that Trump's attorney general is trying to whitewash and bury the Mueller report, with House Democrats finally demanding that Treasury turn over Trump's tax returns, and with Trump embarrassingly backtracking on health care and on his absurd idea to immediately close the Mexican - US border (now having issued a "one-year warning" instead), it seems that most discussion was about Biden instead.

To be clear, I am not suggesting that this is a bad thing, in the style of people saying, "Gee, with all of the real and serious problems in the world, we're focused on this?!"  Quite the opposite, I think it is important to note that we now take the Biden issues seriously enough that the discussion can actually crowd out those other issues (and many more).  Attempts to quickly brush this away -- "He didn't mean anything by it, so get over it" -- are not working, which is a good sign.

Here, I want to look at the Biden story and what it says about the early stages of the 2020 Democratic presidential nominating race.  One could justify the focus on Biden by pointing out that he comfortably leads public opinion polls among Democrats by a large margin, but frankly that means nothing at this stage.  It is interesting instead to look at why the people who view themselves as the establishment (even though they would surely resist that loaded term) are trying to promote Biden (while, not at all unrelatedly, disparaging Bernie Sanders, although that discussion is for another day).

The obsessive defense of Biden is at least cynical and quite likely self-defeating for those who think that "we have to choose the one who can win."

Thursday, April 04, 2019

Facial and As-Applied Cruelty

by Michael C. Dorf

On Monday, in Bucklew v. Precythe, the SCOTUS rejected an Eighth Amendment claim by a condemned Missouri man who argued that although the state's execution protocol was not cruel in general, it would be cruel as applied to him, because vascular tumors in his head, neck, and throat could hemorrhage or rupture during the execution, leading to "prolonged" excruciating pain. Writing for the 5-4 majority, Justice Gorsuch sounded three main themes.

(1) Throughout the opinion, Gorsuch all but accuses petitioner Bucklew and his attorneys of bad faith. Although Bucklew committed his crimes in 1996 and exhausted his direct appeals and habeas challenges "more than a decade ago," the opinion states, "since then he has managed to secure delay through lawsuit after lawsuit." Given the very substantial skepticism with which the majority views Bucklew's entire case and death penalty litigation more broadly, it is probably not surprising that other aspects of the opinion (which I discuss after the jump) are less than fully persuasive. The Roberts Court views cases challenging methods of execution as a means of circumventing doctrines that generally permit the death penalty, and so will do whatever it can to knock down such challenges.

Wednesday, April 03, 2019

When Do Two Wrongs Make a Right?

by Michael C. Dorf

In my Verdict column last week, I discussed the seeming premises behind the questions that Justice Thomas asked during the recent oral argument in Flowers v. Mississippi. The case raises questions about a prosecutor's racially discriminatory use of peremptory challenges to African American jurors. At the very end of the argument, Justice Thomas asked whether defense counsel used her peremptory challenges in a manner that discriminated against white jurors.

As I discuss in the column, that was an odd question. My colleague Prof Sheri Johnson--who argued the case for Flowers in the Supreme Court--quickly answered that no issue of improper conduct by defense counsel was presented as the case came before the SCOTUS. With an assist from Justice Sotomayor, she also explained that it was, in any event, impossible to say that defense counsel engaged in race discrimination, because, with one exception, she only had the opportunity to use peremptory challenges against white jurors.

I conclude the column by arguing that, even if there were race discrimination by defense counsel, that would hardly cancel out the race discrimination by the prosecutor. That should be especially true for someone like Justice Thomas, whose votes in favor of "color-blindness" in affirmative action cases categorically reject any notion that disadvantaging one racial group can make up for disadvantaging another. But the point seems true more generally. As the adage goes, "two wrongs don't make a right."

And yet, sometimes they seem to. Here I want to say a few words about the interaction of the two-wrongs principle and the doctrine of unclean hands.

Tuesday, April 02, 2019

The Don't-Worry-Be-Happy Response to Trump's Threats to Democracy

by Neil H. Buchanan

One of the metaphors that occasionally tips into overuse in US political discourse is the hair-on-fire formulation, as in, "I was running around with my hair on fire in 2003, telling everyone that the intel on weapons of mass destruction was wrong!"  The phrase certainly paints a picture, but as Orwell warned, even effective imagery can die from excessive exposure.

Although that phrase is not currently suffering from overwork, I will nonetheless merely suggest here that I have been rushing about with my follicles aflame for about three years now, warning of the threat to constitutional democracy that Donald Trump and the current version of the Republican Party represent.  My current stint in the UK and Europe has involved delivering a series of lectures that expand on the point that I sketched out in my February 5 Dorf on Law column, "Is the Rule of Law More Important Than Breathing?"

My argument is that we have reached a point in time where we can no longer imagine that the institutions of our liberal democratic order are essentially self-enforcing.  They never were, of course, but when social and political norms allow everyone to take for granted that there are many things that simply are not done, it is easy to lapse into the comforting notion that no threat is truly existential.  Here, I will explain why this one is.

Monday, April 01, 2019

Trump Sues to Block "Are You Smarter Than Trump?"

by Michael C. Dorf

After Nickelodeon revived the former Fox show Are You Smarter Than a Fifth Grader? in February, it should not have come as a surprise when Comedy Central announced next week's scheduled premiere of its spinoff Are You Smarter Than Donald Trump?. The concept is straightforward. Host Steve Harvey will ask contestants questions to which Trump does not know the answer.

I know what you're thinking: that hardly narrows things down. But as the promotional material makes clear, for a question to appear on Are You Smarter Than Donald Trump?, it's not enough that Trump certainly doesn't know the answer; he must have publicly espoused the wrong answer at some point.

Excited prospective viewers have been wondering what questions will be asked. Will contestants need to know whether Nambia is a real (shithole) country? Will they be asked how many Articles the Constitution contains? The difference between counsel and council? Where to buy the best covfefe in Seattle? With so much material in the bank and no sign that Trump's "very very large brain" will stop producing new head-scratchers anytime soon, it is easy to imagine a successful multi-season run for Are You Smarter Than Donald Trump?.

Or at least it was until late last week, when Trump's lawyers filed a lawsuit on behalf of the president seeking "declaratory, injunctive, and monetary relief" against Viacom, the parent company of both Nickelodeon and Comedy Central. In apparent recognition that, despite the best efforts of Justice Clarence Thomas, the nation's libel laws have not yet been "opened up," Trump's lawsuit does not argue that Are You Smarter Than Donald Trump? is defamatory. Rather, the lawsuit claims that Viacom has violated Trump's right of publicity. It argues that the First Amendment, as construed by the SCOTUS in the famous Human Cannonball Case, permits such a cause of action, at least in some circumstances.

Friday, March 29, 2019

Trump's Politicization of the Fed and the Death of Expertise

by Neil H. Buchanan

Donald Trump wants a guy named Stephen Moore to be the next person to join the Board of Governors of the Federal Reserve System.  Even if the only part of the previous sentence that you can follow is "Donald Trump wants," you know that whatever comes after those words is almost certainly based on ignorance, stupidity, or venality -- or, most likely when dealing with Trump, all three.  And in this case, the situation is truly, truly bad.

As background, the Federal Reserve System (the Fed) is the name of this country's central bank (given that opaque name in 1913 to fend off populist fears of an all-powerful Bank of the United States).  The Fed is required by law to set monetary policy to maximize employment and economic growth while minimizing inflation.  Although it has a number of policy tools available, the Fed's key ongoing decision is whether to increase or decrease interest rates.

Stephen Moore is a hack.  He is what other hacks point to when they are accused of being hacks, saying, "Hey, I'm not a hack.  He is a hack!"  Moore is not merely a hyper-conservative partisan, although he is that.  He is also spectacularly wrong all the time, and he is willing to say anything -- anything at all -- to try to score political points.

A moment ago, I googled the words "Stephen Moore dishonest," and the top hits had these titles: "Further Documentation on 'Stephen Moore is a Liar'" from January 1, 2018, "This Trump advisor might be even more confused about climate and energy than Trump himself," from September 9, 2016, "Stephen Moore is Not a Real Economist," from November 28, 2017, and (skipping a highly negative piece simply titled "Stephen Moore") "Stephen Moore is Good at Being Wrong," from two days ago.

Truly, this is a standout moment in Trump's presidency, finding an appointee so bad that he makes people wonder whether we owe Betsy DeVos, Scott Pruitt, and Wilbur Ross apologies.  (No, we definitely do not, but still.)  Moore is so aggressively ignorant and unwilling to acknowledge reality that the only wonder is that he had not already been nominated by Trump to some other position.

As much fun as it would be to continue the pile-on in the Moore-mocking Olympics, however, I want to use this as a moment to reflect on the continuity between the Republican Party's descent over the past forty years or so and what is happening under Trump.  As in so many things (most obviously its bigotry, where a party that was more than happy to play footsie with white supremacists and use dog-whistles to scare white voters has now decided that it no longer needs to bother with pretenses), Trump does not represent a break from Republicans' recent history but merely its logical and inevitable continuation.

Moore is a particularly good exclamation point in seeing all of that, but he is nothing more than an extreme among extremes.  It is, however, interesting to think about this in the context of some recent history.  Republicans once claimed to value expertise -- puffing themselves up as the "party of ideas" -- but if that were ever true (no), it certainly has not been true for decades.

Thursday, March 28, 2019

Yes, There Should Be Single-Issue Voters. That Issue Is Voting

by Neil H. Buchanan

In the United States, talking about single-issue voters is almost always a discussion about anti-abortion fundamentalist Christians.  With Donald Trump in the picture, their single-issueness has become glaringly clear, because they are his most devoted supporters even as he embodies everything that they claim to despise.  It used to be possible to imagine that right-wing Christians, for a variety of reasons, happened to have views that lined up with Republicans along a number of important dimensions, but that pretense is now simply gone.  Trump promises to give them anti-Roe judges and attacks on Planned Parenthood (and further attacks on reproductive rights), and that keeps the Christian Right firmly in his camp, no matter what.

Not that there is anything wrong with being a single-issue voter.  It so happens that anti-abortion true believers have incoherent and unsupportable views even on their own religious grounds, and they are only too happy to impose their views on women's bodies and liberty, but that makes them wrong about being anti-choice.  If their ill-formed view on that issue is also the only political matter that motivates them, however, then they have every reason to vote on that basis.

Even so, most people in most situations are likely to say that they care about a variety of issues, and they understand that they cannot expect to get what they want all of the time, or even a lot of the time.  Being a single-issue voter seems strange and creepily extreme, because it is so easy to wonder why such a voter would answer "yes" to the question: "If I gave you what you wanted on every other issue, but not on your single issue, would you still refuse to change your vote?"  Views so fiercely held almost scream "I'm an unreasoning zealot!"

Well, zealotry has a new convert.

Wednesday, March 27, 2019

Why Is Incorporation of the Bill of Rights Hot Again?

by Michael C. Dorf

Today on Verdict you can find Prof Colb's discussion of the recent cert grant in Ramos v. Louisiana, which poses the question whether the Sixth Amendment is fully incorporated against the states. In 1972 in Apodaca v. Oregon, the Court said that the Due Process Clause of the Fourteenth Amendment incorporates the Sixth Amendment right to jury trial in serious criminal cases in state court but does not incorporate it jot-for-jot; thus, although the Sixth Amendment requires unanimous juries in federal court, the Fourteenth Amendment permits conviction by a less-than-unanimous jury in state court.

Actually, the Court did not say that. Only Justice Powell did. All of the other justices thought that the Fourteenth Amendment incorporates the Sixth jot-for-jot, but some thought both require unanimity and others thought neither requires unanimity. Powell was in the middle and thus his opinion (in the companion case of Johnson v. Louisiana) was controlling, but he was the only justice who thought that a right could be incorporated against the states but not as demanding of the states as it is of the federal government.

Prof Colb's column focuses on the benefits of unanimity and argues in favor of applying the unanimity rule in state courts as a means of reinforcing the beyond-a-reasonable-doubt standard. I highly recommend it. In the balance of this post, however, I want to talk a bit more about incorporation of the Bill of Rights.

Tuesday, March 26, 2019

"The Lawyers of Trump-Russia" Adult Coloring Book is Here!

by Diane Klein

It's here!  The full-scale coloring book, a perfect way to entertain/divert yourself while we wait to find out whether we will get to read the Mueller Report!

How Did We Not See the Absurd Post-Mueller Spin Coming?

by Neil H. Buchanan

There are times when something is unknown to us, yet when it becomes known, we feel like it must have been obvious all along.  The eruption of blatant racism after Barack Obama became president certainly falls into that category: Before the backlash happened, many people felt that Obama's election signaled the permanent marginalization of even most of the coded racism that Republicans had been perfecting for decades; but somehow it now seems that we must have known all along that his presidency would inevitably lead to the rise of racist demagoguery.

Which brings us, of course, to Donald Trump.  Having ridden "birtherism" to political fame, and doubling down on every kind of bigotry imaginable -- aided and abetted, of course, by Fox News and the entire Republican infrastructure -- Trump turned hatred into a political cult, which he has used to drain the few remaining principles out of the party that he took over.

With the end of the Mueller probe, we are now seeing another surprising-but-not-at-all-surprising development, which is the bizarre idea that Trump "won" and that Democrats now have no choice but to ignore his many corruptions.  The insta-conventional wisdom is that, at best, Democrats have received a favor from Mueller by forcing them to focus on issues that matter -- as if presidential corruption is not an issue that matters.  Even more weirdly, it now seems unsurprising to see reports that Trump will try to "turn the tables"on his enemies in post-Mueller Washington.  (The good news: Trump and the Republicans cannot stop themselves from overplaying their hands.)

How did this happen?  Here, I will explain why the reports about Mueller's report -- had we known about them in advance -- would not have seemed at all to be able to "lift the cloud hanging over the White House," as The New York Times and other mainstream outlets have put it in the past day or so.  (Side note: If Trump ever complains again about the Times's coverage of him, he should look at this week's nonsense from that newspaper, especially its headline writers and Peter Baker's writing.)

In the course of describing what is objectively bad news for Trump, I will also try to explain how this is all somehow being spun as good news -- not just by Trump, but by his "enemies" in the press.  Again, we should have seen this coming, because it all seems so, so depressingly obvious now.

Monday, March 25, 2019

Emoluments, Pragmatism, and Judicial Review

By Eric Segall

Last Wednesday, three federal judges appointed by Republican Presidents expressed great skepticism over a lawsuit brought by the State of Maryland and the District of Columbia alleging that President Trump is violating the Emoluments Clauses of the Constitution. The provision that deals with foreign countries (this post is limited to that clause) provides that "No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state." This constitutional limitation has never been interpreted by the Supreme Court. In addition to the lawsuit brought by Maryland and the District of Columbia, there are similar lawsuits filed by member of Congress (disclaimer I worked on a brief in that case), and by a citizens organization called CREW in the Southern District of New York (that case has been dismissed and is now on appeal).

Friday, March 22, 2019

Gutting the IRS -- Is This Republican White House Different?

by Neil H. Buchanan

The nation's tax collector is always in a politically precarious position.  Anti-tax demagoguery is forever in the air, including ahistorical references to the Boston Tea Party (which was actually a protest against a tax break for businesses, not an uprising against paying taxes) along with moronic comments about "keeping the government's hand out of your pocket" and similar rhetoric.

Meanwhile, the people who understand the importance of the Internal Revenue Service are often hesitant to defend it, because there is simply no political upside to doing so.

And then there is the Republican Party, which claims to favor law and order but is suddenly tolerant of moral relativism when it comes to people not paying their taxes (and also when it comes to businesses that decide not to comply with labor, consumer, and environmental laws).

Even as they have succeeded in passing tax cut after tax cut, including 2017's regressive mess (which was a travesty both as a matter of substance and process), all in the name of redistributing to the rich from everyone else, Republicans are more than happy to help rich people and businesses engage in do-it-yourself tax cuts by having the government look the other way.

The most obvious method of doing this is to handcuff the tax cops.  Who cares what the law says if there is no one there to enforce it?

All of which makes it surprising that Donald Trump's recently announced federal budget would slightly increase the IRS's budget.  What is going on here?