Monday, December 30, 2019

Federal Courts Exam 2019: Sorry, No Fake Tweets on this One

by Michael C. Dorf


Per my custom this time of year, I provide below my Federal Courts exam. I apologized to my students that it is not as funny as some of my prior ones, although I think the issues it raises are just as challenging and important as those raised by prior exams.  I did not have the urge this time to create a fake Trump tweet.

Students were given 8 hours to complete the open-book take-home exam. As usual, blog readers should feel free to submit answers (which I won't grade) in the comments.

Friday, December 27, 2019

Trump's Snowflake Voters (A Dorf on Law Classic)

Note to readers: This is the first of this year's "classic" columns, i.e., an opportunity for Dorf on Law to take a break for the holidays while giving interested readers an opportunity to read some of our favorite recent columns.  This piece was first published on January 27, 2017, a week into Donald Trump's presidency.  Although I believe that it holds up rather well, I will note that the sixth paragraph includes this: "More to the point, those of us who oppose Trump are optimistic enough to believe that a large number of his current supporters are not permanently in his camp."  Hmmm.  How well has that optimistic belief held up?  In any case, enjoy!


 by Neil H. Buchanan

There is now a received wisdom about the 2016 election that goes something like this: Trump was inevitably going to win, and the reason no one saw it coming was that journalists live in liberal bubbles in coastal cities and do not know any Trump voters.

If only these journalists had "gotten out there" and interviewed Real Americans, rather than holding them in contempt, they would have felt -- really felt -- the pain of these voters.  This story then holds that those angry voters naturally voted for Trump because he is the ultimate outsider, and they felt in their guts that his solutions were just what is needed to reverse the pain in their lives.  Sticking it to those annoying elitists was an added bonus.

But what if that received wisdom is wrong?  More importantly, what if this new conventional wisdom is actually more condescending to voters -- more the result of the liberal bubble inhabitants' biases and groupthink than of actually applying logic to evidence -- than the supposedly arrogant narrative that it replaced?

I offered an initial assessment of this already-established narrative back on December 1, quoting one analyst who wrote: "Trump is president because of a regional revolt ... .  White people generally didn’t deliver the White House to Trump, however much they enabled him; the Rust Belt did."

As that quote implies, everyone is trying very hard only to talk about the Trump voters who are not racists or otherwise bigoted.  For obvious reasons, the question of race in the election is a sensitive one, as I have explored recently.  (See here and here.)

More to the point, those of us who oppose Trump are optimistic enough to believe that a large number of his current supporters are not permanently in his camp.  Yes, Trump has undeniably brought some ugliness into the mainstream, not all of which will go away any time soon.  But we need to believe that most people are inherently good.

The instant consensus noted above -- that liberal journalists missed the real story -- relies in large part on the idea that Trump won his sliver-thin margins in several now-post-industrial states by flipping formerly Democratic voters to his side.  If that really is the story, then the last two and a half months of hand wringing about those white working class voters is obviously a necessary step in Democrats' efforts to return to political prominence.

The problem is that the data never quite told the story that everyone now thinks is true.  The same day that I wrote about "reaching the reachable Trump voters," in fact, two scholars published a piece in Slate in which they looked at voting data from what they called the Rust Belt 5 -- Iowa, Michigan, Ohio, Pennsylvania, and Wisconsin.  The story they tell is quite interesting and surprising.

As everyone should know by now, three of those states (Michigan, Pennsylvania, and Wisconsin) provided the Electoral College edge for Trump.  As I calculated recently, if fewer than 54,000 Trump voters in those three states had flipped to Clinton, we would not currently be scratching our heads about "alternative facts" or worrying about trade wars (and shooting wars).

The authors of the Slate piece, Konstantin Kilibarda and Daria Roithmayr, point out that the data support a distinctly different story from the "angry white working class voters flocked to Trump" narrative.  It is not that the raw vote totals are wrong, so it does remain true that the equivalent of the population of Elyria, Ohio swung the election for Trump.  That by itself remains an astonishing fact.

Kilibarda and Roithmayr, however, describe the so-called Rust Belt revolt as a myth because "[t]he real story—the one the pundits missed—is that voters who fled the Democrats in the Rust Belt 5 were twice as likely either to vote for a third party or to stay at home than to embrace Trump."

Overall, more than a half million under-$50,000 voters who had voted for Obama in 2012 did not vote at all in 2016.  Furthermore, fewer than two-thirds of the white voters who had voted for Obama in 2012 voted for Trump last year, and those who stayed home or who voted for a third party totaled 220,000 -- more than enough to swing the election for Clinton.

So even if we are looking only for data to support the angry-working-class-whites narrative, we end up with a chunk of those voters who never embraced Clinton but who certainly could not join their angry friends at Trump rallies.

In addition, the Republicans picked up as many voters in those states whose incomes are above $100,000 annually as they did among voters who earn less than $50,000.  It was not really a working class revolt after all.

More shockingly, Democrats also lost 400,000 votes among the "black, indigenous, and other people of color (BIPOC) vote," compared to 2012.  One third of those voters, for reasons known only to them, voted for Trump in 2016.  Put another way, more than 260,000 Democratic voters of color fell away in 2016 by not voting or by voting for a third-party candidate.

Therefore, the notion that down-on-their-luck white voters flipped to Trump is not exactly wrong -- enough such voters did so to make up the deficit that Clinton needed, many times over -- but only motivated thinking by pundits could have turned this into the dominant theme of the post-election discussion.

In some ways, this distorted pundit-led discussion is an example of what can usefully be called an insta-consensus.  On election night, shocked analysts were casting about for a story to tell, and Trump's bigoted campaign rhetoric all but begged for that story to be about angry white voters.  Everyone was being sensitive not to call the white Trump voters themselves bigots, so this had to be spun as a story about misunderstood downscale white people.

This kind of distorted insta-consensus is actually all too common.  Perhaps the most dramatic example is the completely false narrative that emerged after the mass shooting at Columbine High School in 1999.  The entire story that was told about that horrific event -- a "trench-coat" mafia of goth-obsessed kids wreaking revenge on the popular jocks who had tormented them -- turned out to be utterly false.  Yes, I was surprised, too.

Although that example is extreme, the 2016 election post mortem is in its own way just as misguided.

Because so many liberals are willing to believe the negative stereotypes that they hear about themselves -- "Well, gee, I really don't like tractor pulls, and I do laugh at candidates in the Iowa caucuses when they eat fried cheese" -- I strongly suspect that this new narrative is a peculiar form of penance for people who deep down are ashamed when Sarah Palin describes other places as "the real America."

I recently read a long article by the journalist George Packer in The New Yorker, which was published a week before the election.  It is a fascinating read, in part because it shows that whatever else one might say about Hillary Clinton, she was keenly aware of the populist rumblings among working class voters and was actually quite focused on winning them over.

Packer's piece is not without its weaknesses.  Any journalistic effort that actually takes Thomas Friedman and Charles Murray seriously as thinkers is not on strong ground, after all.  In any event, Packer focuses on the idea that the white voters who were drawn to Trump were understandably angry with supposed liberal elites.

Packer quotes Murray: "The energy coming out of the new lower class really only needed a voice, because they are so pissed off at people like you and me.  We so obviously despise them, we so obviously condescend to them—'flyover country.'"

And there it is again, the supposed condescension and disdain that Trump's voters are now thought to have been rebelling against.  The problem is that all of this solicitude for the feelings of Trump's voters is itself insulting, condescending, and disdainful.  One can imagine Murray and Packer whispering: "Shhhh.  Don't say anything bad about them, because they hate that.  They're very sensitive!"

To use the insult that the pundits on Fox News are now wrongly hurling at college students, people like Packer seem to think that working class white people are "snowflakes" -- fragile, pathetic, and weak losers who will melt if someone says something unpleasant to them.

Surely, no one likes it when others are being condescending.  But I frankly think that working class voters can take it when they find out that their leaders don't like fried butter on a stick.

When I was growing up in a working-class suburb of Toledo, Ohio, we knew that Ohio was the butt of jokes (and within Ohio, Toledo was the butt of jokes).  When I went to college, for example, a kid from a suburb on Long Island (a suburb that was surely no different from my suburb) asked with a smirk, "How many cows do you have on your farm?"  It was stupid, but who cares?  We were stronger than that.

Moreover, as I have pointed out again and again, it is also condescending to Trump's voters to say that they hate elites but somehow they cannot bear to be told that Trump is conning them by installing people in power who really look down on working people.  (When the Koch brothers are not pouring money into Republican campaigns, they are endowing operas and ballets in liberal, disdainful, condescending, elitist New York City.)

People can be stubborn, so we can depend on Trump's voters to deny that they made a mistake in voting for Trump.  Indeed, we can be sure that the non-voters who actually flipped the election to Trump will be even more insistent that their acts of omission were not the reason for Trump's rise.

But it is essential to engage with these voters and non-voters and show them that Trump's promise to bring back the jobs of the fifties and sixties is a cynical lie.  That is going to upset some people, but that is politics.  The alternative is to refuse to engage on the issues at all.

People are not snowflakes, and they can handle adult conversations in which they are challenged to rethink their positions.  For liberal pundits to think otherwise, and to imagine that white working-class voters will suddenly change their views if liberals learn to love pork rinds, is what real condescension looks like.

Monday, December 23, 2019

The Fox Who Stole Merry Christmas

by Michael C. Dorf

For many years, I cheerily wished my Christian friends a "merry Christmas." I'm Jewish but from childhood I had happy associations with Christmas and other events Christians celebrated. Each year, my family helped our Unitarian neighbors trim their tree. On Christmas Day itself, we typically joined our Armenian Apostolic family friends for a festive meal. And I attended the first Communion and Confirmation of a close childhood friend who was Catholic (as he attended my Bar Mitzvah).

Saying "merry Christmas" to my Christian friends was for years simply automatic--a way of acknowledging that in a country blessed with religious freedom, there was nothing remotely uncomfortable, much less political, about extending good wishes to one's friends and neighbors on occasions that they deem significant, even if those occasions hold no special religious significance for me. It didn't occur to me not to wish a friend "happy birthday" simply because it wasn't also my birthday; and likewise, I think I would have been puzzled by the notion that there's anything strange about wishing a Christian a merry Christmas.

But that was all before FoxNews launched its war on what it deemed the War on Christmas.

Saturday, December 21, 2019

The Top 5 Supreme Court Cases of the Decade

By Eric Segall

As we leave this decade, I thought it might be interesting to look back over the last ten years and highlight the Supreme Court's five (okay six) most important constitutional law cases. My criteria are my own subjective assessments concerning the decisions' impact on the people of the United States and the development or reversal of constitutional law doctrine.

Friday, December 20, 2019

Scientia Bona Est

by Michael C. Dorf

The title of today's post, "Scientia Bona Est," is the Latin translation of "Knowledge is Good," the motto of Faber College, the fictional setting for the great 1978 film Animal House. It might have inspired the people working for federal Immigration and Customs Enforcement (ICE), who created the fake University of Farmington to lure would-be immigration fraudsters. U of F's motto? Scientia et Labor or "Knowledge and Work." Here's what the university website looked like before ICE deactivated it.

As explained at length in the WaPo story linked above, ICE created the fake university in order to lure non-citizens seeking to overstay student visas as a means of circumventing US immigration laws.  Because U of F had no real classes or faculty or anything else, presumably students who enrolled would quickly realize that it was a scam but assume that the target of the scam was the federal government: Students paid U of F tuition and U of F in turn provided them with extensions on their visas. In fact, it was a sting operation aimed at the students, who were prosecuted and/or deported. Was it a fair and sensible sting? Let's explore.

Thursday, December 19, 2019

Warren for President

by Neil H. Buchanan

During the upcoming two weeks that include Christmas and New Year's Day, Dorf on Law will be on partial vacation, with plans for new posts by Professor Dorf tomorrow and Monday of next week but after that, unless something very big happens (certainly a possibility), we expect to post only "classic" posts, if anything.  This is, therefore, likely to be my last new column of the year.

With that in mind, I decided to announce the much-coveted Buchanan endorsement for President of the United States.

Side note: Yes, I'm being self-deprecatingly ironic.  When I was much younger, I wanted to be a "cool" professor and told my students to call me by my first name; but if they could not bring themselves to do that, I said, "you must call me 'Lord High Professor Doctor Buchanan, Sir.'"  I later overheard one student saying to another, "Can you believe the ego on that guy, telling us to call him that?"  Irony is lost on some people, even in person.  So, to be clear, I do not think that my endorsement is coveted by anyone.

In any case, as the headline for this column indicates, I have decided to get off the fence and endorse Senator Elizabeth Warren.  I have written many columns over the past few years in which I have defended her and advanced arguments on which we agree, but I have always offered caveats, such as: "I am not sure whom I want the Democrats to nominate for President."  And I was sincerely unsure.

Now I am sure, and Liz is the one.  Here, I will explain why I think Warren is the Democrats' best choice next year, both as a matter of being a better president but also as the best person to beat Donald Trump in the general election.

Wednesday, December 18, 2019

GOP Claim that Impeachment Overturns an Election is Spurious but Real Intra-Constitutional Conflict Exists

by Michael C. Dorf

Among the many mutually incompatible and shifting defenses that Donald Trump and his apologists and enablers have offered against his impeachment in the House is the claim that it is an effort to overturn the result of the 2016 election. Like many spurious claims made in bad faith, this one has a point of contact with reality: If the House were to impeach a President of a different political party simply in response to genuine policy differences within the realm of reasonable contestability, that could indeed be an illegitimate effort to overturn the result of the then-most-recent presidential election.

In the prior paragraph, I hedged with phrases like "realm of contestability" and "could" because I regard the impeachment of Andrew Johnson as legitimate, even though it was about a policy difference; that policy difference was whether to reconstruct the Union on more just grounds (the view of Congress) or to frustrate Reconstruction so as to preserve white supremacy and institute apartheid (Johnson's position.) Some policy differences are not mere policy differences. Nonetheless, I will concede that in general, mere policy disagreements, even sharp ones, do not afford permissible grounds for impeachment. There must be evidence of treason, bribery, or other high crimes or misdemeanors. The Constitution says as much.

Accordingly, if it were true that the House Democrats were motivated to support Trump's impeachment by disagreement with his policies or even by dislike of his personal style, that would be problematic. But of course that's not remotely true. The Republican claim that Democrats are acting improperly or unconstitutionally by using impeachment to overturn the result of a Presidential election is thus wholly parasitic on the further claim that there is insufficient evidence that Trump has engaged in impeachable conduct. The Republican strategy is like a defense attorney arguing to the jury that the jury can't convict someone if he didn't commit the crime charged when the jury believes the evidence shows that he did commit the crime charged. It's true sort of, but it's a non sequitur.

Tuesday, December 17, 2019

Why Did the U.S. Constitutional Breakdown Take So Long?

by Neil H. Buchanan

Now that the Senate Republicans have made it clear that they have no intention of running an honest trial of the impeachment of Donald Trump that the House will soon approve, non-Republicans and NeverTrumpers alike are trying to figure out what to do next.  The problem, of course, is that the Constitution is not self-enforcing; and even if it were, it is being exposed as hopelessly inadequate to the current task.

Take the bare language of the two procedural impeachment clauses.  The last clause of Article I, Section 2 reads in full: "The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment." The last clause of Article I, Section 3 reads in full: "The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present."

That is it.  Note that the Senate's role is described in maddeningly vague terms: "... the sole power to try all impeachments."  Is that permissive or not, that is, does it mean that the Senate MUST try all impeachments or that it has the power to try all impeachments IF IT FEELS LIKE IT?  After all, I have the power to sing my high school's fight song backward every morning, but I have never chosen to exercise the power.  Even if I were given that power solely, would I have to do so?

Apparently, Moscow Mitch is planning to abuse the vagueness of that clause differently, not by refusing to try the impeachment but by refusing to try the impeachment with any seriousness or impartiality -- that is, by simply misinterpreting the keyword "try" to mean whatever he wants it to mean.  And even though Senate rules require members to swear oaths to be impartial jurors, those rules could be changed by a simple majority vote (but for obvious optical reasons will not be) or simply ignored.  Moreover, there is virtually no possibility that the courts would deem this justiciable.

I will offer a few thoughts about the "What now?" question presently.  More importantly, I will talk about why it took so many years for the U.S. to reach the point where gaping weaknesses in the Constitution -- indeed, weaknesses in the very nature of constitutional democracy -- are finally being exploited.  What took so long?

Monday, December 16, 2019

When Madison Avenue and Pennsylvania Avenue Merge: A Review of "Political Brands"

By Eric Segall

If you are worried about the state of our political system in the age of Facebook advertising, Russian interference in our elections, dark money in politics, and President Trump’s Twitter account, among many other disturbing trends, Professor Ciara Torres-Spelliscy’s wonderful new book “Political Brands” is unlikely to make you feel any better. However, it will make you much better informed regarding the many threats facing American democracy. I strongly recommend this book to anyone interested in how Madison Avenue and political movements have merged to present new and unique risks to our representative, constitutional democracy.

Friday, December 13, 2019

What If the Democrats Had Not Pursued Impeachment?

by Neil H. Buchanan

Both The New York Times and The Washington Post, as of this writing, are running front-page articles that claim that the impeachment process will be good for Donald Trump in next year's election.  Both stories, however, are notably weak when trying to back up that point (and do not even really try).

The Times's article merely says that Trump himself "thinks that it will help him on the campaign trail" (and the embedded link takes readers to an earlier Times article that says that Trump thinks impeachment will help him).  More interestingly, the story ends with a prediction, noting that "Mr. Trump’s advisers worry about ... the snapback of his anger once the impeachment process is over. They predict he will be furious, and looking for payback."  The invertebrate Lindsey Graham reportedly told Trump not to do that, apparently because it would be bad for his election, so even the most craven Republicans do not think this is necessarily good for Trump.

The Post's article, meanwhile, merely reports that the Trump reelection campaign is pushing the line that impeachment will be good for him.  But what else are they going to say -- both because they dare not disagree with Trump and, more importantly, because their job is to say things like that?  Trump's campaign manager is quoted as follows: "This lit up our base, lit up the people that are supporters of the president. They’re frustrated, they’re upset, and that motivates voters.  They [presumably he means the Democrats] have ignited a flame underneath them [presumably he means Trump's supporters].  ... That has put money in our bank [campaign donations]. It has added volunteers to our field program.  It’s filled up the rallies easier."

To which one can only respond: I call BS.  That is absolutely a nonsensical argument, as I will explain.  More to the point, even if it were true, there is no way that the Democrats could have done anything differently.  This is therefore, at worst, major papers amplifying Trump's spin.  At best, it is evidence-free Monday-morning quarterbacking.

Thursday, December 12, 2019

How to Prevent Recruit-to-Deny and Reject-to-Preempt Admissions Strategies

by Michael C. Dorf

A recent NY Times article highlights one of the more despicable practices one sees in the college admissions game -- what has come to be known as "recruit to deny." Here's how it works: US News and other purveyors of college ratings and rankings include "selectivity" among the factors on which they evaluate colleges. The harder it is to get into a college, the more selective that college is. Selectivity is expressed as a ratio of applicants who are admitted to applicants who apply: The lower the ratio, the more selective the college. A college can improve (i.e., decrease) its selectivity ratio by increasing the denominator, i.e., by encouraging applications from more students it expects to reject. (Encouraging applications from students a college expects to accept will decrease selectivity, because it will increase the numerator as well as the denominator, and thus in general increase the ratio.) Accordingly, as the Times article notes, many colleges reach out to prospective applicants with recruiting material, creating false hope that they will be admitted, when the college only values them as filler for the denominator. Such colleges "recruit to deny."

The practice is despicable for various obvious reasons. Sometimes colleges waive application fees for students they recruit to deny, but not always. When they don't, they waste those applicants' fees. Even if a college waives its application fee, there are fees associated with sending standardized test scores. There is also a cost in time. Although most colleges accept the so-called "common application," submitting additional applications can nonetheless be time-consuming, because many colleges have specialized additional questions they ask. Applicants who are recruited so the college can deny their applications might also waste their (and their parents') time and money by visiting the campus. They might make costly decisions to forgo certain other applications to colleges that would actually have admitted them. At the end of the process, there is both the sting of rejection and the sense of betrayal. I imagine a great many applicants who were victims of recruit-to-deny efforts feeling more than a little miffed that a college that went out of its way to tell them how great they were then rejected them.

Below, I'll offer a simple suggestion for eliminating the incentive for recruit-to-deny. But first I want to make a couple of observations about how it fits with other admissions practices.

Wednesday, December 11, 2019

The Articles of Impeachment, the Burden of Proof, and Propensity Evidence

by Michael C. Dorf

In the run-up to yesterday's release of proposed articles of impeachment against Donald Trump, commentators speculated about whether the House would issue articles focused entirely on Trump's corrupt actions regarding Ukraine or also include other matters, especially those relating to events described in the Mueller Report. At least three rationales were offered for articles of impeachment going beyond the Ukraine affair.

First, some commentators thought it might be helpful to moderate/freshmen Democrats in swing districts who won their seats by focusing on such pocketbook issues as health insurance to have multiple articles so that they could vote for some and against others. Doing so would ostensibly show to their fence-sitting constituents that they were going along with impeachment reluctantly and out of a sense of duty but were still moderates; that's why they only voted for two of the articles, these Democrats could say. I'm not sure who originated this idea, but it never made much sense to me. Swing voters tend to be relatively low-information voters. It is hard to see that any such voters would oppose impeachment (even if they generally dislike Trump) but be  assuaged that their representative voted for only two out of three (or four or more) articles of impeachment.

Second, other commentators suggested that it was important to include obstruction of justice based on Volume II of the Mueller Report, because obstruction of justice is a crime, whereas the two articles that the House Judiciary Committee produced yesterday--"abuse of power" and "obstruction of Congress"--are not crimes. These commentators acknowledge that an act can amount to treason, bribery, or some other high crime or misdemeanor within the meaning of the Constitution even if it is not a crime as defined by statute. Indeed, all of the law professors who testified last week, including Jonathan Turley, acknowledged that. Nonetheless, I have heard it said that Republicans have argued and will continue to argue to the uninformed public that only statutory criminal acts warrant impeachment, so that including a criminal charge would head off this argument.

This line of reasoning was naive. If anything is clear by now, it's that Republican apologists for Trump will say whatever is convenient, regardless of its consistency with other things they have said just a few seconds earlier. A charge based on the Mueller Report's well-documented catalogue of obstructive acts would be met with the claim that the Report exonerated Trump. That would be untrue, of course, but Republicans who are willing to say that the Constitution only allows impeachment for statutory offenses are also willing to say that Mueller exonerated Trump, climate change is a hoax, the Earth is flat, or whatever it takes. Articles of impeachment oughtn't to be based on taking away Republican talking points with facts. That's impossible.

Third, some people argued for including charges involving Russian interference with the 2016 election and obstruction of the investigation thereof because the Ukraine Affair is a continuation of that same scheme. This, to my mind, was a fair point. Putin's agents created the conspiracy theory that Ukraine, rather than Russia, interfered with the 2016 election, and the military aid for Ukraine that Trump delayed sending to Ukraine until his scheme was exposed was aimed at combating Russian aggression. Accordingly, including Russia-related charges would have made sense on relevance grounds.

Nonetheless, I trust the political judgment of the Democratic House leadership in proposing two relatively narrow articles of impeachment. And besides, the proposed articles are not all that narrow. In particular, they invoke the Russian connection repeatedly.

Tuesday, December 10, 2019

The Not-All-That-Blurry Lines of Public Intellectualism

by Neil H. Buchanan

In my most recent Dorf on Law column, I wrote that my former George Washington Law School colleague Jonathan Turley "is a media hound, second only perhaps to Alan Dershowitz in his apparent willingness to go onto any show and say anything, no matter how ill-conceived, if it means being on TV."  I admit that this was rather rough treatment, and it became even more so when I ended the column by saying that although Turley is not apparently in favor of the evils of Trumpism, he is willing to do things that further those evils because Turley elevates his own vanity above other values.

This kind of bare-knuckled assessment should, of course, at least cause the accuser (me) to pause and ask whether pointing the finger at an egomaniac is the classic case of having three fingers pointed back at himself.  (Aside: Is that a mixed metaphor, even though it is all about fingers?  Never mind.)  Yesterday's Dorf on Law column by Professor Eric Segall was much more kind than that, but Professor Dorf's comment on that column raised this broader question not only about me but about himself.  After all, this blog is its own form of showing off what the writers believe to be their worthy insights, and
"[e]ach of us wrestles with how far to venture beyond our respective core expertises and reciting 'just the law' in speaking to the public. Those of us who write for this blog have a more restrictive view of our role than Prof Turley has of his role, but there are many others in our profession who have a still more restrictive view than we do and would thus regard us as media hounds (or worse)."
To be very clear, I do not feel that either Professor Segall or Professor Dorf "called me out" in any way.  Instead, I took their comments as an opportunity to call myself on the carpet and ask what exactly I think that I am doing via the public intellectual activities that take up significant amounts of my time.

So as not to bury the lead, I will state up front that although I agree that the lines between acceptable and unacceptable behavior are not always clear, there is much more than a you-know-it-when-you-see-it inquiry when thinking about public intellectualism.

Monday, December 09, 2019

What are Law Professors for Anyway?

By Eric Segall

As I watched three of my favorite colleagues and Jonathan Turley testify in front of Congress last week, I couldn't help wondering what should be the appropriate role for law professors in current political and legal disputes. Obviously the impeachment hearings raise this issue but so do amicus briefs, letters signed by law professors taking positions on major policy questions, and even media appearances and professorial use of social media platforms. In this post, I raise a few questions and suggest a few tentative thoughts, but, with one exception, do not provide strong opinions.

Friday, December 06, 2019

Professors, Impeachment, and Vanity

by Neil H. Buchanan

Earlier this year, I ended a 12-year stint on the faculty of The George Washington University Law School.  As such, I have been asked (off-list) whether I have any comments about my former colleague Jonathan Turley's testimony at the House Judiciary Committee's hearing earlier this week.  I have plenty of thoughts, but I will warn readers in advance that I have no juicy "insider goss" to share.

Turley was the legal witness called by the House Republicans at the hearing to make their case against impeaching Donald Trump.  Turley's testimony and comments have already received a great deal of attention (much of it extremely negative, and deservedly so), including in part of Professor Dorf's excellent column yesterday.  Turley's performance gave me even more reason to feel happy about my recent change in academic affiliation.

Below, I will discuss the substance, such as it is, of Turley's testimony.  But because so much commentary has already poured forth from smart people, all asking in one way or another, "What the hell is Turley thinking?!" it makes sense to think about the testifier in addition to his testimony.

Thursday, December 05, 2019

House Judiciary Committee Meets the Law Professoriate

by Michael C. Dorf

I did not watch all or even most of yesterday's hearing before the House Judiciary Committee, due to the press of teaching and other obligations. Accordingly, I do not purport to offer anything like a comprehensive assessment. Instead, I'll make brief remarks about the testimony of each of the four panelists.

Wednesday, December 04, 2019

Impeachability, Mootness, and Legal Realism

by Michael C. Dorf

Today the House Judiciary Committee will hear from four legal scholars. (The hearing livestreams here, beginning at 10 am). Three, called by Democrats, will surely say that President Trump's various misdeeds--using the prospect of a White House meeting and Congressionally appropriated money for a besieged Ukraine as leverage to pressure the Ukrainian President to announce (but not necessarily conduct) an investigation of Hunter and Joe Biden, as well as obstructing the Congressional investigation of those acts--readily satisfy the constitutional standard for impeachment. The fourth, called by Republicans, will say that the public record does not disclose sufficient grounds for impeachment.

Lest there be any doubt, I agree with the former view. Donald Trump is manifestly unfit for office. His behavior with respect to Ukraine is a particularly good fit for the text of the impeachment clause, because whether or not he technically committed an act of attempted bribery, by abusing public resources for private gain--and at the expense of national security to boot--he clearly committed acts in the same ballpark as bribery, which counts as "other high Crimes and Misdemeanors."

Yet while I have loaded the prior paragraph with words connoting certainty (such as "manifestly" and "clearly"), there is nothing resembling bipartisan agreement in the House or Senate regarding Trump. Why not? From my perspective, that's because some number of Republican Representatives and Senators are all-in for Trump, while some other number privately know him to be an amoral venal scoundrel but fear the wrath of GOP primary voters. So I'm right and they're wrong, right?

Well, yes, but that's not my point today. Instead, I want to focus on the malleability of legal reasoning by stepping back and comparing and contrasting the Trump impeachment with the last one, involving President Bill Clinton.

Tuesday, December 03, 2019

Democratic Nomination Uncertainty and the Buttigieg Problem

by Neil H. Buchanan

In what I consider to be good news, two political scientists published a piece yesterday in The Washington Post showing that the supposed "war" within the Democratic Party is a figment of pundits' imaginations. As the author/pollsters summarize their findings: "[W]e find a surprising amount of agreement among Democrats on major policy issues. Contradicting the conventional wisdom, clearly defined ideological 'lanes' don’t seem to exist in the minds of most voters."

Why is that good news?  Because for someone like me, who is constantly amazed by how many commentators talk about the Democratic Party as if it were still the unfocused group of infighters that we grew up with, it is nice to see evidence that the Democrats truly are unified on policy issues -- and, by the way, taking positions on all of those issues that are very, very popular.

The polls show that voters do not identify themselves in specific camps within the party; and much more to the point, their voting preferences do not show them buying into the hype from an ideologue like, say, The Post's Jennifer Rubin -- whom I respect but who is Suspect #1 in the poorly hidden pundits' conspiracy to make the Democratic primaries an ideological war between centrist and center-left candidates.  (Sorry, the U.S. still does not have any leftist Democrat leaders in terms of policy, and that includes not-actually-Democrats like Bernie Sanders.)

Indeed, the polls show that voters who identify centrists as their first choice choose non-centrists as their second and third choices, and vice versa. Here is a great nugget: "More specifically, in surveys from Oct. 17 to Nov. 13, 35 percent of Biden supporters list Sanders as their No. 2 choice, and 29 percent list Warren. Only 9 percent list Buttigieg. Meanwhile, Sanders supporters are nearly evenly divided in their second-choice candidate: 36 percent say Warren, while 32 percent say Biden."

So it is difficult if not impossible to see actual Democratic voters saying: "I'm a centrist and I hate those lefties who are going to ruin us by making us seem like socialists, so I'm going with Buttigieg if Biden fades, or maybe Klobuchar."  These pollsters appropriately caveat their findings, but this is interesting work that is contrary to the conventional wisdom, to say the least.

Because these are scary times, however, I am unable to take good news as good news.  Where is the bad news?  Mostly, it is embodied in the squeaky-clean supposed "dream candidate" known as Pete Buttigieg.

Monday, December 02, 2019

The Problem With Litigating Executive Privilege in Congressional Testimony

by Michael C. Dorf

Last week was a mixed bag in litigation over the conflict between the Democratic-led House of Representatives and the Trump White House. In the course of ordering former White House Counsel Don McGahn that he must testify before Congress about remaining questions involving Russian interference in the 2016 election and the firing of James Comey, Judge Ketanji Brown Jackson stirringly rejected Trump's claim of blanket immunity for his aides. Surveying key statements and events from the Founding through the present in a scholarly 118-page opinion, she concluded that "the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings."

And yet, in a reminder of an all-too-familiar pattern over the last three years, Trump's loss in a lower federal court was overshadowed by his victory in the Supreme Court. The very same day that Judge Jackson ruled against Trump's assertion of royal prerogative in the McGahn case, the justices granted a stay of the mandate in the DC Circuit case that ordered Trump's accounting firm to deliver his financial records to the House Committee on Oversight and Reform.

Thursday, November 28, 2019

A Little Thanks for Thanksgiving

By Eric Segall

These days, it feels like being thankful can be hard. If you are like me, the political world is difficult to escape. I don’t pretend to remember well the burning cities of my 1960’s youth or the national angst over young men and women going off to fight the unjust and illegal Vietnam war, but America today feels more torn apart than at any other time during my lifetime. I know people whose friendships and even families have been casualties of our polarized discourse and national divisions. The base cruelty and rudeness of our President, I fear, is infecting not just his supporters but his antagonists too. As my friend Dr. Aaron Caroll says so often on Twitter, there does not seem to be a bottom.

Well, I need a day off. So here are a few hopefully not too trite thank you’s and optimistic thoughts that I thought I would share on our national day of Thanksgiving. Please forgive the personal nature of what follows.

Wednesday, November 27, 2019

The Waning of the American Republic

by Michael C. Dorf

A century ago, pioneering cultural historian Johan Huizinga published the first (Dutch) edition of his brilliant, if somewhat tendentious The Waning of the Middle Ages (sometimes translated as The Autumn of the Middle Ages). Focusing on the 14th century Burgundian court in what is now France and the low countries, Huizinga described a period of decay and pessimism, but also one of continuity. In an insightful aside about the masterful art then being produced in northern Italy, he observed: "Here, as elsewhere, the line of demarcation between the Middle Ages and the Renaissance has been too much insisted upon." Similar statements appear throughout the the book. Periodizations, like generational lines, are typically imposed from outside, and observable mostly in retrospect. The society Huizinga chronicled was dying, but most of the people of the time did not realize it, because they were too close to see the sweep of history.

And so perhaps it is with us, but worse, for while Huizinga is right that the line between the Middle Ages and the Renaissance was not sharp, it sloped upwards. The society that was dying would give way to a better one. We may not be so lucky. We may be living through the waning of the American republic. Worse, we may be living through the waning of representative government more broadly. One hopes not, but it would be dangerously arrogant to think that, as Francis Fukuyama foolishly proclaimed after the fall of the Soviet Union, liberal democratic government has permanently triumphed anywhere. Failure is always an option.

Tuesday, November 26, 2019

The Polite Way for Nominal Liberals to Allow Democracy to Die

by Neil H. Buchanan

What if Donald Trump is declared the winner on election night next year?  I address that question in my new Verdict column today, as part of my continuing exercise in forecasting the various ways that our constitutional system is being destroyed.  (Happy Thanksgiving, everyone!)  This question is not one that I have addressed before now, but it provides another avenue through which Democrats' extreme self-doubt and overcautious instincts could fail the country.

There are essentially three ways that presidential politics could play out over the next year: (1) Trump is impeached, convicted, and removed; (2) Trump loses the 2020 election, (3) Trump wins the 2020 election.  (Other possibilities exist, of course, such as the death of an extremely unhealthy septuagenarian who is constantly enraged and has a terrible diet, but I will set those aside.)  Thus far, my writings have focused on (1) and (2) but ignored (3).

The reason for ignoring (3) is obvious, which is that Trump is not doing anything that would increase his support and has in fact spent his entire presidency pleasing people who were already going to vote for him.  Furthermore, because pleasing those supporters involves doing bigoted, hateful things, he not only alienates the people who did not vote for him (non-voters and protest voters as much or more than Clinton voters) but he energizes them.

In anything resembling a fair election -- where "fair" is defined down to include the rules as they existed in 2016 (in other words, with millions of people still deliberately disenfranchised by various Republican strategies honed over decades) -- Trump would lose to anyone and everyone.  But because he will not be convicted in his Senate trial, he will claim vindication (which will not sway any votes) and then unleash every dirty trick in the book (which most definitely could change the reported outcome).  Trump could thus "win."

In my Verdict column, I go into some detail about the impeachment situation, but my focus here is on the claim that I make at the end of the column, which is that if Trump "wins," the voices of mainstream respectability on the putative left will quickly squelch any claims that the "win" deserves to be referred to in scare quotes.

Or, to put it differently, the "liberal elite" will try make sure that everyone is well behaved and quietly accepts an illegitimate assault on American democracy.

Because my Verdict column was already quite long,  I could not expand on that claim, so I will explore it a bit more now.

Monday, November 25, 2019

In Memory of David Shapiro

by Michael C. Dorf

David L. Shapiro, the William Nelson Cromwell Emeritus Professor of Law at Harvard Law School, passed away last week. David was a brilliant, humble, witty, and fundamentally decent human being. He was my teacher, mentor, and friend. In a lovely tribute on the occasion of his retirement, Prof. Amanda Tyler called David a "lawyer's lawyer." I agree. Indeed, David was also a law professor's law professor. The current Solicitor General, Noel Francisco, wrote a respectful remembrance here. The official obituary in Harvard Law Today includes praise from Prof. Tyler, Dean John Manning, and Prof. Richard Fallon. Meanwhile, I want to add a few words of my own.

Friday, November 22, 2019

There Is Nothing Wrong With the "Lock Him Up!" Chants

by Neil H. Buchanan

After this week's Democratic presidential debate, a very stern columnist for The Washington Post chastised Senator Bernie Sanders for giving the wrong answer to Rachel Maddow's question about recent chants of "Lock him up!" at various gatherings, including at some Sanders rallies.  Stephen Stromberg instructed us as follows:
"The right answer is: 'It is understandable that people are frustrated with President Trump. But everyone else should resist stooping to his level. I wish people would not do Trump-like chants at my rallies.'"
But Sanders "bomb[ed] the ‘lock him up’ test," said Stromberg, by instead saying: "Well, I think the people of this country are catching on to the degree that this president thinks he is above the law. And what the American people are saying is: Nobody is above the law." Or, as Stromberg characterized it: "Instead, Sanders essentially said, “Well, people think the president is a criminal.'"

Remember, this was the WRONG ANSWER.  There is but one acceptable answer, and only if Sanders had said the right words -- "Hey guys, I wish you wouldn't go low like Trump's voters" -- would he have aced the test.

There might be reasonable disagreements about how one feels about "Lock him up!" chants, but this is silly.  What is going on?

Thursday, November 21, 2019

It is OK to Admit That German Beer Is Meh

by Neil H. Buchanan

In the 1970's, Coors beer suddenly became all the rage.  This was at a time when the consolidation of the American brewing industry was in full swing, with mega-brewers buying out or simply crushing locals like Stroh's (Detroit), Schaefer (Boston), Iron City (Pittsburgh), and so on.  It was also a few years before the first whispers of what became the craft beer revolution were first heard.

Coors, brewed in Colorado, was not yet known for the extreme right-wing politics of its founding family.  It also was still very much a regional beer, with no national distribution at all.  I was in high school in Ohio at the time, and for no apparent reason, people began to talk about Coors in near-mythic terms.  People who went on skiing trips to the Rockies were encouraged to drive rather than fly, because that would allow them to fill their trunks and back seats with cases of Coors to bring back for all of their family and friends.  The ultimate Christmas present!

I was thus primed and excited when a friend called (Remember when people called each other?) and said, "Great news!  I've got Coors.  Get over here now!!"  Within minutes, I had tasted my first Coors, and I remember thinking to myself: "This is truly disappointing.  How is it different from Miller or Bud?  It actually might even be worse."  What I said, however was: "Oh, man, this is fantastic!  Great score, man."

And not to be nice.  The funny thing is that, within weeks if not days, I had stopped noticing that Coors was mediocre (at best), and I was telling everyone how great it was.  And the funnier thing is that I actually believed it.  It was not a matter of the taste growing on me.  It was simply willing myself to believe something that I actually knew to be false.  This was, in other words, my first experience with extreme cognitive dissonance.

And now, this has happened again with German beer.  The question is whether it matters if I overcome cognitive dissonance by believing reality (German beer is meh) rather than by disbelieving the evidence of my own tastebuds.

Wednesday, November 20, 2019

Do Primary Candidates' Policy Proposals Matter?

by Michael C. Dorf

As a primary voter, how much, if at all, should you care about policy differences among the candidates, given the fact that many of the key proposals require congressional approval that will not likely be forthcoming from Congress, absent a change in the cloture rule? Here I'll defend the following answer: Some, but mostly because of what they indicate about the candidate's priorities rather than because of the policies themselves.

Let me unpack that paragraph using the current Democratic field as illustrative, although what I say here should be equally applicable in a Republican primary, albeit with different policies. Suppose you have narrowed down your choices to two candidates. One of them--let's call her Warren--favors Medicare for All. The other--let's call him Buttigieg--favors Medicare for All Who Want It. Let's assume that in all other respects you are in equipoise between these two candidates. One rather straightforward way to decide whom to vote for is by asking yourself whose policy you prefer.

But you realize that although Buttigieg's proposal is to the right of Warren's, the 60th Senator whose vote would be needed to pass any substantial health care reform measure is to the right of Buttigieg. Thus, neither Medicare for All nor Medicare for All Who Want It will become law in either a Warren or a Buttigieg administration. The most you can expect is some tinkering around the edges of and expansion of the Affordable Care Act. Accordingly, you should not base your choice between Warren and Buttigieg on whose health insurance reform proposal more closely matches your own policy druthers. Right?

Mostly, but not entirely.

Tuesday, November 19, 2019

The Planned Parenthood Sting/Scam Video Verdict

by Michael C. Dorf

Last week, a civil jury in federal district court in San Francisco sided with Planned Parenthood and against anti-abortion activist David Daleiden and his organization the Center for Medical Progress, with liability for compensatory and punitive damages totaling just over $2 million. I am  ambivalent about the decision.

Monday, November 18, 2019

Why Are We Really -- I Mean Really -- Stuck With Job-Tethered Benefits?

by Neil H. Buchanan

In two recent two columns -- here (regarding health insurance) and here (regarding retirement savings) -- I have provided excruciatingly specific details about the very odd process that plays out when Americans change jobs.

The overriding question that intruded into both columns, even though I was largely focused on other matters (such as the cruelty and ridiculous expense of our health care system) was: Why, in fact, do American employers routinely offer and manage any of these benefits?  Other than being familiar, what allows a system that is utterly illogical to continue to be accepted by nearly everyone as simply the way that things are done?

Last week, Professor Dorf took a useful run at this question.  Noting that employers have largely gotten out of the business of providing retirement benefits -- by shifting the risks of inadequate planning or simple bad luck onto employees, which is the point of changing from vested pensions ("defined-benefit" plans) to tax-favored retirement savings accounts ("defined-contribution" plans) -- he plausibly suggested that my more recent column pointed to what must surely be simply unintended consequences, including those that showed up in my story about the travails of Professor X, who nearly lost more than one-third of one of her largest retirement savings accounts because the account was not fully portable.

There is little more to say about the retirement savings question, mostly because there truly is no obvious advantage to anyone -- employers, employees, unions, right-wing lobbyists, Republicans, Democrats, reactionaries, or progressives -- in the weird rules that Professor X was forced to navigate.  While Professor Dorf and I are equally befuddled by that particular state of affairs (a state of affairs that I could call a "standoff," but that would imply that there is anything other than stasis involved), we both agree that there is more to say about the continued connection between employment and the provision of health insurance.

The question, again, is simple: Employers have no particular expertise or desire to provide health insurance to their employees, so why do they continue to do so without complaint to their political patrons (that is, the Republican Party)?  Here, I will summarize Professor Dorf's cynical explanation, offer what I will call a "pedestrian" explanation that is roughly as cynical as Professor Dorf's, and finally provide what I think is the most cynical (and accurate) explanation.

Friday, November 15, 2019

Solum on Posner and the Descriptive/Normative Gap in Originalist Theory

By Eric Segall

After Dick Posner retired from the federal bench, I wrote on this blog that "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." I also confessed that Dick and I are good friends so my objectivity was compromised. I was pleased, therefore, to read that Professor Lawrence Solum recently said the following about Posner:

I have only read a fraction of Posner's judicial decisions, but on the basis of that fraction, he is, in my opinion, one of the greatest judges in the history of the common law--and the greatest American judge of his time.

Professor Solum is, of course, one of our leading academic originalists, and the only law professor who testified in favor of originalism at the confirmation hearing of then-Judge Neil Gorusch. What is interesting about Solum's praise of Posner is that there is little doubt Posner was one of, if not the most, anti-originalist judges of his generation. His disdain for grand theory of any kind, especially textualism and originalism is, well, legendary. He once said the following at a conference where he was reviewing a book written by Solum's colleague Randy Barnett:

What would the framers of the [Fourth Amendment] have thought about [n]ational security surveillance of people’s emails? That is a meaningless question. It is not an interpretive question, it is a creative question. . . . The [Constitution] cannot resolve it . . . by thinking about the intentions, the notes of the constitutional convention, [or] other sources from the 18th century. This seems to be the standard problem for judges . . . . It is not interpretation, it is just trying to find . . . a solution to a question that has not been solved by the legislature.

In the same speech, Posner made clear that judges should veer away from or use justiciability 
doctrines to avoid even clear constitutional text if modern conditions so required. Given his anti-originalist, anti-textualist judicial preferences, it is interesting that a prominent originalist would praise Posner as the "greatest American judge of his time."

Thursday, November 14, 2019

Why Not to Be an Originalist

by Michael C. Dorf

Tomorrow morning I'll be on a panel at the Federalist Society National Lawyers Convention, speaking on the topic "Why, or Why Not, Be an Originalist?." US Court of Appeals Judge Thomas Hardiman will moderate the panel, which also will include UVA Law Prof Sai Prakash, NYU Law Prof Rick Pildes, and US Court of Appeals Judge Amy Coney Barrett. Based on our planning conference call and the known priors of the panelists, it is very likely that Prakash and Barrett will offer reasons to be an originalist, while Pildes and I will offer reasons not to be an originalist.

Before proceeding to preview my remarks, I want to say a few words about Fed Soc. Recently, I have watched uneasily as some very prominent members have debased themselves by carrying water for Donald Trump in the apparent view that his nomination of conservatives to the federal bench justifies a kind of Faustian bargain. By the same token, I admire other conservatives with ties to Fed Soc who have recognized the threat that the current president poses to the Republic, even at the cost of being called "human scum."

Those points aside, I greatly respect Fed Soc's longstanding and genuine commitment to open debate. I am not a mere token liberal on tomorrow's panel. And that has generally been my experience with national Fed Soc events and when I am asked to offer a counterpoint to an invited speaker at a Cornell Fed Soc chapter event. (This was also true when I used to be asked to play that role at Columbia Fed Soc chapter events.)

Okay, so now onto the preview.

Wednesday, November 13, 2019

Job-Linked Benefits Revisited

by Michael C. Dorf

My latest Verdict column takes the recent election in Argentina as a point of departure to argue that everyone would be better off if we did not regard demotions as shameful. In that election, I note that Argentines elected a former President, Cristina Fernández de Kirchner, as their Vice President. Argentina has a two-consecutive-term limit on the Presidency but no lifetime term limit, so Kirchner may regard the Vice Presidency as a stepping stone back to the Presidency (in the same way that Vladimir Putin allowed Dmitri Medvedev to keep the President's chair warm for him while he cooled his heels as Prime Minister).

I explain that not every demotion offers a clear path back to the better job but that there will often be reasons why a "lesser" job is better than or at least as good as a more elevated one. That's the column in a nutshell, but interested readers should check it out for more details and examples.

Here I want to connect a point I make in the column to a recent Dorf on Law essay by Prof Buchanan. I note in the column that with a few exceptions, we no longer have an economy in which workers can expect to land a job with a single firm and then stick with that firm until retirement. Rather, millennials, Gen-Z, and subsequent generations (as well as Gen-Xers and Boomers still in the workforce) can expect to change firms and even lines of work with some frequency. In the column I say that this fact ought to make people less concerned about "demotions."

In addition and more tangibly, frequent job shifts also underscore a point made by Prof Buchanan last week: Our system of tying health insurance and retirement savings to particular employment makes no sense. I agree with that observation as a normative matter. But I want to try to explain as a causal matter why we nonetheless have the system we do.

Tuesday, November 12, 2019

Ad Hominem Attacks on Trump’s Critics and the Loss of Good-Faith Disagreement

by Neil H. Buchanan

I have heard labor lawyers use a term, "retroactive incompetence," to describe the phenomenon in which an employee with a stellar work record (usually including glowing annual performance reviews, multiple commendations, and so on) finds herself under attack by her bosses after she does something that the bosses dislike (files a sexual harassment complaint, sues for being passed over for a promotion in favor of a less qualified beneficiary of nepotism or sexism, blows the whistle on financial misdeeds or environmental crimes, and so on).

The "disgruntled former employee" at that point becomes the worst worker the company had ever been forced to deal with.  It becomes surprisingly easy to swat away all of those employee-of-the-year awards and letters of commendation by saying that the employee was so problematic that it was easier for everyone to tell her that she was (and to treat her like) a great employee than to tell her to stop being  -- and in this context, it is easy to predict what is coming next -- "such a b-word."

This defense ought actually to be deeply embarrassing, because the bosses -- who, if their company is publicly traded (as most are in cases that make the news), are holding out their company to investors and regulators as a responsibly managed organization that is worthy of being given fiduciary responsibilities -- was in fact so scared of one Nasty Woman (yet one who, presumably, nevertheless persisted) that they damaged the company rather than get rid of a cancer on the corporate culture.

As self-negating as that defense is, however, we see it over and over.  And it does contain a grain of believability in that people do know that some problematic people are tolerated nearly everywhere.  (TV sitcoms could barely exist without them.)  The real-world consequence is that we are left looking at matters of degree rather than categorical evidence.  People who perhaps were once praised by a boss are different from those who receive promotion after promotion and all-but-poetic reviews from their supervisors.  Even with the inevitable tough, borderline calls, there will still be clear cases where we can see that a person is being slimed ex post by people who have no better defense.

All of which brings us to Donald Trump and his many enablers.

Monday, November 11, 2019

Congress Should Amend the Presidential Succession Act to Ensure Party Continuity

by Michael C. Dorf

On Thursday of last week, Jennifer Williams, an aide to Vice President Mike Pence, testified for the House impeachment inquiry. Her cooperation with the inquiry raises an intriguing possibility: What if Pence is implicated in the arms-for-fake-dirt Ukraine scandal? Should the House impeach Pence alongside of Trump? If doing so is justified by the evidence, then simultaneous impeachment and removal of Trump and Pence would make House Speaker Nancy Pelosi the acting President, pursuant to the Presidential Succession Act. That possibility, in turn, would certainly make Republican Senators who might otherwise be willing to vote to remove a President and Vice President of their own party unwilling to do so.

Or they might insist on removing the President and Vice President one at a time. If they removed Pence first, then, pursuant to Section 2 of the 25th Amendment, Trump could name a new Vice President; Trump's removal would then lead to the new Vice President's becoming President, whereupon that new President would name a new Vice President. That is the same sequence of events that led from the Nixon-Agnew administration to the Ford-Rockefeller administration. Although Ford and Rockefeller were both well qualified, it is easy to imagine Trump, in a fit of pique, naming as his successor someone almost as poorly suited to the job as himself, Rudy Giuliani, say, or Sean Hannity.

Alternatively, if the Senate were to remove Trump first, then Pence would name a new Vice President, who would become President upon Pence's removal, whereupon the successor would name a new Vice President. It seems less likely that Pence would choose new leaders purely out of spite, but there's still something very very troubling about the prospect of a President who was chosen by someone who was then removed for committing impeachable offenses. That was true of the procedure that gave us Ford, and it would be true in any version of the invocation of Section 2 of the 25th Amendment.

Friday, November 08, 2019

Justifying the Administrative State -- and Congress

by Michael C. Dorf

Today I have the pleasure of attending an all-day conference at Cornell Law School focusing on the forthcoming book The Reasoning State by my colleague Prof Edward ("Jed") Stiglitz. I look forward to hearing the comments of various panelists who have come from near and far. I'm commenting on two of the chapters. Here I want to preview some of my remarks on Chapter 2 -- Reasoning and Distrust: State Architecture in Advanced Societies.

The book as a whole is terrific. It is methodologically diverse, including historical materials, legal and institutional analysis, formal mathematical models, and the reports of some psychological experiments, all integrated into a coherent whole. I won't attempt to summarize the entire book here, however, both because that's too daunting a task and also because Chapter 2 is the core of the book.

In both my oral comments later today and in this preview, I'll begin with a summary of the chapter (and thus the book's core argument), and then raise some questions. Readers who want a deeper understanding should consult Stiglitz's 2018 article in the University of Pennsylvania Law Review, which sets forth an earlier version of the core argument, and/or his 2017 article in the Supreme Court Economic Review, which reports on one of his experiments. And of course they should buy the book when it's available.

Thursday, November 07, 2019

How Not to Be a Republican

by Neil H. Buchanan

In my new Verdict column, published this morning, I return to the Democrats' intramural feud over Elizabeth Warren's Medicare-for-All plan.  Back when she had not yet released the details of her plan, the self-styled reasonable centrists claimed that she was being vague because she refused to "admit" that her plan might involve having people pay taxes.  As I wrote at the time (those days of yore known as three weeks ago), it was not Warren but her detractors who were being evasive, because they were pretending not to notice all of the non-tax costs that our health care system imposes on people.

Now that Warren has released a detailed financing plan -- one that does not, in fact, raise taxes on the middle class -- the arguments from her opponents have only become more absurd. The title of today's column (Dear Mayor “Extremely Vague” and Senator “Pipe Dream”: Put Up or Shut Up), is of course a reference to the oh-so-clever zingers that brought the punditocracy to its feet for Pete Buttigieg and Amy Klobuchar.

The "put up or shut up" part is simply an extension of my earlier critique, which is that they have been getting a free pass even though they have not described anything that comes even close to a non-vague plan.  In particular, I quote New York Times columnist Elisabeth Rosenthal: "Medicare for All, Medicare for All Who Want It, a public option, improving the Affordable Care Act—those are 30,000-foot concepts that, depending on the details, could work (or not) and be popular (or not)."  I echo her call for the non-Warren/Sanders candidates actually to put something out there that can be attacked, in the way that they are attacking Warren and Sanders.

And to be absolutely clear, there is nothing wrong with (and everything right about) attacking one another's policy proposals.  No one could have expected that Warren's release of her detailed financing proposal would end the debate.  I would have hoped that the arguments against it would have been better than the incoherent snark so far from Joe Biden's campaign (which I discuss at length in the latter half of today's Verdict column), which simply blows my mind.

But attacking and criticizing each others' plans is what candidates do.  Sometimes, the exchange is even outright nasty, and that can be appropriate (or at least acceptable), too.  Talking like Republicans, however, is not at all what they should do.  Unfortunately, not only are the non-Warrens talking like Republicans, their feelings are getting hurt when they are called out for talking like Republicans.  They need to get a grip and understand the difference between disagreement and damaging disagreement.

Wednesday, November 06, 2019

Supremely Stupefying Standing Doctrine

By Eric Segall

On Friday, I’m heading to Loyola of Chicago’s excellent annual Constitutional Law Colloquium. I’m looking forward to hearing Professor Pamela Karlan give the keynote speech, Professor Richard Fallon talk about his new book on constitutional interpretation, and attending a bevy of interesting panels. I’ll be talking about justiciability in general, focusing mostly on standing. The current state of the doctrine is incoherent by any standard, and I’m not aware of any academic commentator who thinks the Court’s case law on the subject truly distinguishes proper from improper exercises of judicial authority.

Tuesday, November 05, 2019

And You Thought Health Care Was Complicated!

by Neil H. Buchanan

A few months ago, I discussed my travails in trying to navigate the health insurance options as I transitioned into my new position at the University of Florida.  My overall purpose in writing that column was to mock the cruel joke that is "freedom of choice" in the American health care system.  Even mainstream economists have known for decades that health care is not a "normal" good as depicted in Econ 101, so the world will not be characterized by so-called efficient outcomes when people are left to fend for themselves in that marketplace.

In fact, the description in that column of my own uncertainties and wasted time in choosing a health insurance plan was almost comical in that my employer offers exactly two health insurance plans.  Two options, but the state of Florida nonetheless spends huge amounts of money trying to make the process more user-friendly.  If even a duopoly is hopelessly complicated, what hope is there for clarity in an inherently unclear world of coverage limits, deductibles, co-pays, coinsurance, and on and on?

The ultimate reason that Americans continue to be stuck with a hugely expensive health care system that fails to cover tens of millions of people and bankrupts even people with supposedly good health insurance, of course, is that Republicans (and many Democrats) have been bought by the various companies that are making huge profits at everyone else's expense.

But even within our insane set of perverse incentives, it is its own scandal that health care is tied to one's employment status -- and to one's specific employer.  We could have a health care system that is just as profitable (and cruel) as the current system is without making one's employment status the determining factor in whether one has health insurance (or how good the insurance is, or how many options one has).  What sense does it make for me to have had to change my health insurance decisions merely because I moved from one (very good) job to another?

I thought my transition to the UF health care world was annoying, and it was; but after wasting lots and lots of time on it, I ultimately made a choice that did not ruin me financially -- as far as I know.  But not being able to shake the sense that I might have made a catastrophic error (an error that now sits like a landmine at some point along my path through life) is a big part of the stress and uncertainty of our system.

As it turns out, however, this oddball system of connecting a crucial financial aspect of people's lives to their particular employer goes beyond health care.  I have recently become aware of someone's even bigger travails in trying to deal with her retirement savings accounts, nearly losing a huge sum of money because those accounts are tied to particular employers.

Prepare to be astonished and annoyed by the story of a person I will refer to only as Professor X.  Even someone with a great deal of financial savvy and access to very helpful administrators found herself spending several weeks unsnarling a mistake not of her making.  Were we not to tie retirement savings benefits to employers, this would never have happened.

There are some details to plow through before we get to the perverse "reveal," but those who stay through the end of the story will find that it is a truly strange tale of how an opaque system can inflict real harm on people.

Monday, November 04, 2019

Free Speech on Facebook and Twitter

by Michael C. Dorf

Two social media platforms have adopted very different approaches to political advertisements. Facebook has a general policy of fact-checking and removing "false news and other types of viral misinformation, like memes or manipulated photos and videos," but exempts politicians, including politicians who appear in ads on Facebook. Twitter, formulating its policy in deliberate contrast with the Facebook policy, will stop running political ads entirely.

Both Facebook and Twitter justify their respective policies by reference to norms of democracy and free speech. Let's consider the merits of these justifications.

Friday, November 01, 2019

The Biden Fade, and an Anticipatory Mea Culpa

[Note to readers: My new Verdict column, "Go Big, Democrats: Attempts to Rig Elections Are Not the Only Impeachable Offenses," was published yesterday.  Today's column here on Dorf on Law addresses a different topic entirely.]


by Neil H. Buchanan

It is good for the soul, I think, to look for situations in which one has made an error and to admit as much out loud.  Or, if not actively to look for such examples, at least to recognize them when they arise.  I confess that I might be jumping the gun here (as I will explain below), but it is beginning to look as though I was wrong about how Joe Biden's impending failure in the Democratic primaries will play out.

Note two things up front.  First, I did not say that I seem to be wrong in predicting that Biden would fail.  Rather, the question is how that failure will happen and how it will be received by the punditocracy and the Democratic elite.  More importantly, second, we are still months away from knowing who the Democratic nominee will be, and history does provide at least one example of a candidate who was dead in the water a year before Election Day but ended up being nominated: John McCain in 2008.  (Of course, he also lost fairly badly in the general election.)  And Biden, while struggling, is still one of the frontrunners.

In any case, let us take a break from the rolling disaster that is the Trump Administration and the Republicans' bizarre responses and non-responses to the impeachment inquiry.  Let us act as if this is a semi-normal presidential election and that navel-gazing about the out-party's candidates is at least arguably not a waste of time.

The evidence at this point suggests pretty strongly that Biden will not be the nominee.  More interestingly, however, his likely failure will not be the cause for much angst, even among his strongest supporters in the party's establishment.  Why not?

Thursday, October 31, 2019

What We Learn From the Ugly Dual Loyalty Slander Against Lt. Col. Vindman

by Michael C. Dorf

Donald Trump's tweet in response to the testimony of Lieutenant Colonel Alexander S. Vindman on Tuesday was despicable; yet remarkably, it was not nearly as outrageous as comments by Trump-friendly talking heads. Below I'll connect the smear by former Congressman Sean Duffy, FoxNews host Brian Kilmeade and others to controversy over statements by Congresswoman Ilhan Omar as well as to the nature of partisanship in our current era.

Wednesday, October 30, 2019

Why Don't Democratic Voters Care About the Courts (as Much as Republican Voters Do)?

by Michael C. Dorf

My latest Verdict column discusses a brief eruption of the progressive Internet last week in response to the false claim that Pete Buttigieg announced that he would seek to name justices like Anthony Kennedy to the SCOTUS. As I explain in the column and as I also explained in a Twitter thread (which you can read "unrolled" here) last week, that's not what happened. Rather, Buttigieg mentioned Kennedy in the context of his explanation of a proposal to depoliticize the Supreme Court.

My Verdict column first criticizes the Buttigieg critics who jumped on him without bothering to read what he actually said; it then pivots to criticize Buttigieg's goal of depoliticizing the Court. I explain that the Court has pretty much always been political and that to the extent that it is now more clearly embroiled in partisan politics than in some other periods, the problem is not the appointments process but polarization in Congress.

Here I want to return to some of the criticism of Buttigieg. As I note in the column, to distinguish himself from the position he incorrectly assumed Buttigieg had endorsed, Bernie Sanders tweeted that he'd like to see more justices like Ruth Bader Ginsburg and Sonia Sotomayor. Mayhem ensued, as Bernie Bros and Bernie Sisters tweeted the equivalent of "amen" (and what struck me as a surprisingly large number of animated gifs of basketball players slam-dunking).

Less childishly, earlier this month Demand Justice issued its "short" list of 32 potential Supreme Court nominees for the next Democratic president. It's an excellent list that includes several people with whom I have been friends for decades. But it might not be very good politics.

Tuesday, October 29, 2019

Trump, Brexit, and Undoing the Voters' Will

by Neil H. Buchanan

One of the tried-and-true tactics of dictators and would-be dictators is to claim legitimacy based on some moment when they can claim to have been put in place by "the people."  That the people no longer support them, or never supported every single thing that the authoritarians propose, never seems to matter.

Even people who are less further along the authoritarianism wannabe spectrum spin these delusions, as we saw in former President George W. Bush's infamous reference to his hair-thin 2004 reelection (along with his regent Dick Cheney) as an "accountability moment."  The basic idea is simple: I won, so I can do whatever I want, no matter how I won and no matter what has changed since I won or what people were thinking about (and not thinking about) when they voted for me.

As has so often been the case for the past three-plus years, the worst kinds of authoritarian tactics and tropes that we see in the U.S. are also showing up in the U.K.  Although British PM-for-the-moment Boris Johnson is no Donald Trump in terms of being at the center of a cult of personality, the Trump-Brexit analogies continue to pile up.

Now, as faux populists on both sides of the Atlantic see themselves in genuine danger, appeals to "the will of the people" are predictably arising from the aggrieved American and British leaders.  Even on its own terms, however, their argument is nonsense.

Monday, October 28, 2019

Died Like a Dog

by Michael C. Dorf

It is difficult to know how to regard the news that US special forces killed ISIS leader Abu Bakr al-Baghdadi. The killing of Osama bin Laden in 2011 did seem to diminish the power and reach of of Al-Qaeda. Perhaps al-Baghdadi's death will bring similar benefits.

However, there are reasons to worry. Al-Qaeda was already a weakened institution when bin Laden was killed. Moreover, it had begun to transform into a kind of franchising operation. In this respect, it is useful to remember that ISIS is a lineal descendant of Al-Qaeda in Iraq. Its initial leader, Abu Musab al-Zarqawi, pledged his loyalty to Bin Laden and was then killed by US forces in Iraq in 2006. The US killed successor leaders before al-Baghdadi emerged and transformed Al Qaeda in Iraq into ISIS. So maybe the killing of Bin Laden wasn't especially effective after all. And difficult as it is to imagine, maybe someone as bad as al-Baghdadi will soon emerge.

Put differently, terrorist organizations like Al Qaeda and ISIS might be hydra-like, so that decapitation is futile; a new head simply emerges in place of the old one.

But actions like the killings of Bin Laden and al-Baghdadi might be even worse than futile. They might be counterproductive if they serve to elevate the targets to martyrs or inspire more people to take up arms on behalf of the terrorist organizations. Perhaps for that reason, President Trump pursued a reasonable objective in his otherwise predictably inappropriate and self-aggrandizing announcement of al-Baghdadi's death: Trump hoped that by describing supposed signs of cowardice in al-Baghdadi, he would discourage a posthumous celebration of al-Baghdadi as a hero. Trump said al-Baghdadi died "whimpering and crying and screaming all the way." He described al-Baghdadi's followers as "losers." And, Trump added, by way of intended insult, that these followers "were very frightened puppies," while al-Baghdadi himself "died like a dog."


Friday, October 25, 2019

Discretionary Originalism: A Short Response to Professor Solum

By Eric Segall

On Wednesday, Professor Lawrence Solum kindly "recommended" a forthcoming essay of mine in the George Washington On-Line Law Review. This piece argues that Solum made a concession in his latest article on Originalism that demonstrates there is no meaningful difference between the so-called New Originalism and Living Constitutionalism. On his blog, however, Solum also said the following about my argument:
I would note that Segall's contention that "current originalist theory" gives judges "discretion" "to pick and choose which facts are relevant and which ones have changed since the text at issue was originally ratified" does not accurately represent my understanding of my own views.  The Constraint Principle requires judges to adhere to the original meaning (communicative content) of the constitutional text as was fixed by linguistic and contextual facts at the time each provision was drafted, framed, and ratified.  And the Constraint Principle requires constitutional actors to engage in constitutional construction on the basis of the actual adjudicative and legislative facts at the time of application.  There are important questions regarding the division of fact finding responsibility regarding legislative facts as between different officials (e.g., appellate and trial judges versus executive and legislative officials), but I believe Segall is simply wrong in his characterization of my view as allowing "discretion"--as I understand the meaning of that term. [My italics].
I greatly appreciate the engagement, but I also feel compelled to note that this disclaimer fails to wrestle with the central evidence and arguments in my essay.

Thursday, October 24, 2019

Smug Centrists' Self-Satisfied Sanctimony Seems Sad, See?

by Neil H. Buchanan

Last Sunday, the editorial board of The Washington Post asked what they surely thought was an utterly reasonable question: "There’s an effective and progressive solution for climate change. Why won’t Democrats embrace it?"  The "effective and progressive solution" that enthralls them is a carbon tax.  The lack of self-awareness revealed by their question made my jaw drop.

These editors, after all, are the very same people who have spent the last year or so gleefully joining in on the baseless attacks on Medicare-for-All by saying that such plans would "raise taxes."  As my most recent Verdict column (and, to a lesser extent, my most recent Dorf on Law piece) explained at great length, this is utterly bonkers.  Whatever else one thinks about Medicare-for-All or about Senator Elizabeth Warren, she is absolutely right that the labeling debate about health care costs is a political trap.

Why? As I said last week: "[S]he knows that every news outlet would play only the first five words of her saying: 'My plan will raise taxes but would reduce other costs by more than that.'"  Which The Post's editors certainly would have done.  Their dismissal all but writes itself: "Even Warren finally admits: 'My plan will raise taxes,' effectively killing her campaign.  We told you so!"

But now those editors wring their hands, wondering why no Democrat will embrace "an effective and progressive solution for climate change" merely because it is a tax.  Why, they ask themselves, would those Democrats be such cowards?

The lesson here is not merely found in the clueless hypocrisy of the "Just admit it's a tax, Liz!" crowd.  It goes much deeper into the problem underlying the entire centrist approach to Democratic politics, which is becoming more and more difficult to stomach.

Wednesday, October 23, 2019

The Resilience of Obamacare in Reality if not Necessarily in the Trump-Packed Courts

by Michael C. Dorf

Today I shall have the pleasure of debating Prof Josh Blackman on the challenge to Obamacare now pending before the Fifth Circuit. Prof Blackman and I recently agreed with one another about amicus briefs in the SCOTUS (me here and him here). Today, I suspect we'll disagree--and not just because the event is billed as a debate. The Cornell Law School chapter of the Federalist Society is sponsoring the event, and I know from past experience that Fed Soc likes to promote its events as "debates," even when a term like "discussion" would be more accurate, because debates attract a larger audience than discussions.

Accordingly, I have sometimes found myself announced as debating some speaker only to end up agreeing with most of what the speaker says. But this time I suspect we will find plenty about which to disagree (though not disagreeably, of course).

Below I preview my argument, which leans heavily on the House reply brief in the pending appeal.