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 is 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.

Monday, October 21, 2019

With Amici Like These . . .

by Michael C. Dorf

On Thursday of last week, the Supreme Court issued official guidance regarding the filing of amicus briefs. Most of it simply collects what's already in Supreme Court Rule 37, but even so it's useful. For a summary of the guidance (which is itself pretty short), here's a helpful article on Bloomberg. I'll offer some critical thoughts on a couple of points: (1) party consent; and (2) colors.

Friday, October 18, 2019

Must the US and Other NATO Members Aid Turkey if Syria Counter-Attacks?

by Michael C. Dorf

Numerous commentators (including yours truly) have condemned President Trump's precipitous withdrawal of US forces from northern Syria as a betrayal of our erstwhile Kurdish allies. It was and remains such a betrayal. Despite yesterday's announcement of a 5-day "pause" in operations--which was predictably and inaccurately hyped by Trump as a "great" deal that resulted from his "tough love"--Turkey apparently has no current plans to withdraw forces from its self-declared "safe zone" in northern Syria.

Thus, Turkey's incursion leaves alive the possibility of clashes between Turkish and Syrian and/or Russian troops. Such clashes in turn might result in a call for NATO involvement. Suppose Syria crosses the border and counterattacks. Suppose Russia, which has troops stationed in Syria about 20 miles south of the Turkish border, assists in such a counterattack. Would that constitute an "armed attack" under Article 5 of the NATO Treaty, thus obligating the US and other NATO countries to come to Turkey's defense?

Given the potentially catastrophic results of such a great-power conflict, one hopes not. Here I'll parse the key documents (the NATO Treaty and the UN Charter) to see whether we can reach that result.

Thursday, October 17, 2019

Buttigieg Jumps the Shark

by Neil H. Buchanan

Pete Buttigieg, it turns out, is a bit of a dick.  This was not supposed to be his brand.  He presented himself to the world as a thoughtful, modest uniter with Midwestern quietude and restraint who would move our politics forward -- the avatar of a new generation of people who have had enough of the old ways of doing things.  We wanted to like him.  I certainly wanted to like him.

Apparently, however, Buttigieg decided that this was no longer working.  It seems that his initial success in moving into the second tier of candidates who might break through -- not among the Three Septuagenarians leading the pack, but also clearly in a different category from Cory Booker and Amy Klobuchar -- gave him a taste for more.  Unfortunately for him, his boomlet ran its course as he faded out of double digits in national polls and has been muddling along in a land where people assume his future is as a Vice Presidential pick.

How to get out of that rut?  Figure out what will send the pundits hearts aflutter, of course.  Among the many possible ways to do that, he chose to go for full-on sneering aggression during Tuesday night's Democratic not-really-a-debate.  Hit 'em with the zingers.  Be remembered for something other than thoughtfulness.  (As I will note below, he has actually been doing this for awhile, but the debate was his formal launch as an old-style attack candidate.)

At one point, Buttigieg punched down at Beto O'Rourke by sarcastically scoffing: "I don’t need lessons from you on courage."  Yes, apparently you do, Mayor Pete, because O'Rourke was right about your timidity and political calculations about dealing (or not dealing) with gun violence.  Yet Buttigieg decided that sanctimony was more important than actually having anything to say.  As I said, dickish.

Here, I will explain why I think that this is a very bad look on Buttigieg; and more pointedly, I will argue that it means that he is not thinking about how his interventions are going to affect the eventual nominee, whether it is Buttigieg himself or anyone else.  This is what happens when someone gets too greedy for more attention.

Wednesday, October 16, 2019

The Costs and Benefits of Economic Sanctions

by Michael C. Dorf

It is better to be shocked with a taser than shot with a gun, but a shock from a taser is nonetheless extremely unpleasant. So too with economic sanctions, which unleash less destructive force than armed conflict but nonetheless can be nasty. I'll explore the point today with reference to Trump policies and the current controversy embroiling the National Basketball Association.

Tuesday, October 15, 2019

Tramp the Dirt Down

by Neil H. Buchanan

As the world tries to understand why Republicans have not abandoned Donald Trump, despite his violation of so many of their supposed principles -- Hint: It cannot be that he "does what conservatives want him to do" (and certainly not only that), because any Republican president would be substantively identical to Trump on taxes, the environment, labor law, and so on -- it is worth remembering once again that many of those principles themselves are indefensible.

And understanding what makes the modern conservative movement indefensible in turn calls for us to remember that the same symbiosis that currently exists between the US and UK in their political malfunctions (Brexit simply being Trumpism carried out by a number of mini-Trumps rather than one mega-corrupt Trump) existed at the onset of what American Republicans think of as the dawn of a new day under Ronald Reagan when he took office in 1981.

I am referring, of course, to Margaret Thatcher, whose rise to become Britain's Prime Minister predated Reagan's inauguration by more than a year and a half.  Although Thatcher mouthed various platitudes -- including quoting St. Francis of Assisi: "Where there is hatred, let me sow love" -- she was extremely hard-edged (and not a veteran of B-movies) and thus was never able to summon Reagan's what-me-worry optimism.  Despite their stylistic differences, the two of them began the long slog that led to our current historically gaping levels of inequality, environmental catastrophe, and attempts to block or roll back civil rights gains.

Why should we care about Thatcher now, and what can we learn from thinking about her?  The short answer is that she was the leading figure in the deformation of the modern world.  While a young grifter named Donald Trump was busy discriminating against African Americans in New York City rental housing while making up stories to feed the press about his nonexistent greatness, Thatcher and her followers carried out a political agenda that made something like Trumpism both possible and inevitable.

Monday, October 14, 2019

Justice Neil Gorsuch: Hubris Masquerading as Modesty

By Eric Segall

Last Tuesday, the Supreme Court heard three cases raising the issue whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination "on the basis of sex," protects gays, lesbians, and transgender persons. During the oral argument, Justice Neil Gorsuch conceded that the textual issues were very close and then asked Professor David Cole, one of the plaintiffs' attorneys, whether a judge should "take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that -- that Congress didn't think about it ...  That's it. It's a question of judicial modesty."

This paen to "judicial modesty" is consistent with many passages in Gorsuch's new book, "A Republic If You Can Keep It," which I reviewed here. For example, in that book, Gorsuch says he has two rules for his law clerks: 1) "Don't make stuff up," and 2) "When people beg, and say, ‘Oh, the consequences are so important,’ and when they say, ‘You’re a terrible, terrible, terrible person if you don’t,’ just refer back to Rule No. 1. And we’ll be fine." Recently Gorsuch also said that the founding fathers didn't want "nine old people in Washington sitting in robes telling everybody else how to live."

This rhetoric about modesty and deference, however, comes from a man who has already shown that he has no problem telling both the American people, and the states themselves, how they should govern their lives and their citizens even when constitutional text and its history do not suggest that judges should overturn the decisions of more accountable political officials.

Friday, October 11, 2019

House Impeachment Procedures

by Michael C. Dorf

Let's begin with what's clear.

1) Congress has the power to subpoena private citizens and past and present executive branch officials to testify and to produce documents so long as the witnesses and materials sought bear some rational relationship to a legitimate congressional purpose, including impeachment and potential legislation. The Trump administration's withholding of appropriated funds from Ukraine makes the present impeachment inquiry obviously relevant to Congress's power of the purse. So too, Trump's conduct--as indicated by his own statements--makes the inquiry relevant to consideration of impeachment. Absent identification of specific objections on national security, particularized executive privilege, or other pressing grounds, executive branch officials and private parties must comply with congressional subpoenas. A court has rightly rejected Trump's claim to the contrary in litigation over Trump's financial records. Likewise, the White House Counsel letter to Congress asserting the president's right to refuse to "participate" in the impeachment inquiry is "bananas."

2) The key claim in the White House Counsel letter is that the procedures to be used in the House for the impeachment inquiry are unfair and thus unconstitutional. This is a very very bad claim. Article I gives the House "the sole Power of Impeachment" and grants it the power to "determine the Rules of its Proceedings." The letter cites procedures employed in prior presidential impeachments as precedents, but does not provide any reason to conclude that the House at the time thought it was constitutionally obligated to use the procedures it did or was setting a precedent that would be binding in the future. In Nixon v. US, the SCOTUS said that a challenge to the procedures used for a judicial impeachment trial in the Senate presents a non-justiciable political question, relying substantially on the fact that Article I assigns the Senate "the sole Power to try all Impeachments." The parallel language regarding the House means that its procedures as well would not be subject to judicial second-guessing.

So what's unclear? One question (that I'll address very briefly) is remedy. A second question concerns the most prudent course for the House to follow.

Thursday, October 10, 2019

Athletics and College Admissions at Harvard and Beyond

by Michael C. Dorf

Last week, Federal District Judge Allison Burroughs issued a 130-page opinion rejecting a challenge to Harvard College's admissions program. The lawsuit on behalf of Students for Fair Admissions charged that Harvard discriminates against Asian American applicants in violation of Title VI. Because the Supreme Court has construed the prohibition on racial discrimination in Title VI as coextensive with the Fourteenth Amendment's Equal Protection Clause, the ruling in the case has implications for public as well as private colleges and universities--assuming it stands up on appeal.

Much of the press coverage of the Harvard case has treated it as a test of the legality of race-based affirmative action. And indeed, it may prove to be that. Although Judge Burroughs applied existing SCOTUS case law allowing the consideration of race as a plus factor but not a quota and allowing colleges to seek diversity but not racial balancing, the most recent articulation of those principles occurs in a 5-4 ruling by Justice Kennedy. It is conceivable that Justice Kavanaugh or Chief Justice Roberts or both will reaffirm the permissibility of affirmative action in a future case, but it is more likely that a conservative majority will either reject the Bakke/Grutter/Fisher line of cases entirely or reinterpret those cases so narrowly as to effectively eliminate race-based affirmative action. Whether that happens in the Harvard case or some future case remains to be seen.

For what it's worth, I regard it as unfortunate that so much of the discussion of the Harvard case has gotten tied up in a discussion of affirmative action. I understand why that would be so from the perspective of affirmative action's critics. To them, the goal of increasing the enrollment of African Americans and Latinx students necessarily means decreasing the enrollment of other racial groups, including Asian Americans.

But that oughtn't to be the only basis for objecting to discrimination against Asian Americans. Liberal supporters of affirmative action could join its critics in condemning what may be a corrupt bargain, whereby colleges discriminate against Asian American applicants to enable affirmative action for African American and Latinx students while preserving white privilege. Or at least we could so join together if we were persuaded that's what is going on. Is it?

Wednesday, October 09, 2019

I Know It's Really U.S. Cultural Imperialism, But I Like It

by Neil H. Buchanan

I suppose that, in early 1933, there must have been intellectuals scattered about the world thinking about relatively lightweight topics like popular music.  They surely knew that important things were afoot politically, especially in Germany, but they likely had no idea that the Reichstag fire was imminent.  Today, at least we have reason to know that something like that is all too possible.

Wikipedia helpfully explains that "[t]he term 'Reichstag fire' has come to refer to false flag actions facilitated by an authority to promote their own interests through popular approval of retribution or retraction of civil rights."  Today, as Donald Trump's political nightmare deepens and he becomes increasingly untethered to even his abnormal version of normal day-to-day behavior, it seems more than reasonable to wonder what extreme and desperate measures he will take to save himself.

Groups of his supporters -- possibly even including some in Congress, but certainly some among the people on whom he is counting to take to the streets to save his presidency -- are surely also thinking along such lines.  One reason that it has not happened thus far is that Trump has seemed relatively untouchable, with the Mueller report inexplicably having had virtually no impact and Senate Republicans solidly behind him, no matter what he has done.

I write today gripped by a grim near-certainty that something truly catastrophic is in our future.  The reasons that we might be optimistic that people would not do this -- basic human decency, a sense of limits, worry about being found out -- seem naive at best when applied to Trump and his cultists.  Unlike the people in 1933, most of whom presumably did not yet have reason to believe that the rising nationalists in Berlin were capable of doing anything so horrible, we are reduced today to the choice between facing this reality or living in denial.  But other than sheer hope, there is little reason for anything but pessimism.

What to do?  Like those people whom I imagined living their lives back in 1933, I am going to think about popular music!  Why?  Because it is better than worrying about something over which we have no control and which is likely to fundamentally change the future.  Why not sing and dance instead?

Tuesday, October 08, 2019

The Way to Stop the Title VII Parade of Horribles is to Stop Parading the Horribles

by Michael C. Dorf

Today the SCOTUS will hear oral argument in two cases apparently presenting the questions whether Title VII's prohibition on sex discrimination thereby forbids discrimination based on sexual orientation and gender identity. As Prof Marty Lederman explained in a blog post last month, the framing of the cases as involving categorical policies excluding LGBT persons from employment is wrong on the facts, but he also argued (and I agree) that if the cases are framed that way the plaintiffs still should win. (Interested readers can find the brief by Marty, me, and three other law professors in support of plaintiff Aimee Stephens in the Harris Funeral Homes case here).

Today I want to address two arguments made against recognizing gender identity discrimination as sex discrimination. Both have the flavor of a parade of horribles and feature in various briefs by the defendants and their amici. The arguments are that if gender identity discrimination is deemed unlawful under Title VII, then it will be unlawful under other statutory prohibitions of sex discrimination and as a matter of equal protection, which, in turn, will be the end of sex-segregated restrooms in public and publicly funded institutions as well as the end of girls and women's high school and college sports.

My response is that the restroom concern is mostly hysteria, but that if it isn't, that's not a reason to reject the plaintiffs' claims here. I have the same response to the sports objection: If it's persuasive, that's a reason to draw the line there, not a reason to reject claims in a totally different context. Now I'll elaborate.

Monday, October 07, 2019

More Thoughts on Republicans' Cowardice ... or Maybe Something Else

by Neil H. Buchanan

This past Friday, I wrote with some bemused astonishment about the supposedly horrible consequences that Republicans would face if they were ever to ... shudder ... take a public position that was critical of Donald Trump.  Most directly, I was responding to a Washington Post article that described the fallout for four elected Republicans who have recently mouthed mildly not-pro-Trumpian comments -- Rep. Adam Kinzinger and Sens. Chuck Grassley, Mitt Romney, and Ben Sasse.

Why was it so laughable?  The unpleasant consequences mostly amounted to nothing more than name-calling (Kinzinger was called a "spineless sellout" -- ouch!) along with some attempts by Trump's troll army to invent new conspiracy theories about Romney.  To his credit, Romney had more negative things to say about Trump over the weekend, so apparently Romney is not too worried about whatever he is reading and hearing.

The larger context for this, of course, is that the mainstream press has decided to explain Republicans' cowering obeisance as a matter of their trying to avoid Trump's "wrath," "fury," "outbursts," and so on.  But what do those purportedly intimidating emotional explosions amount to?  Trump responded to Romney over the weekend by calling him a "pompous 'ass.'"  (Note that Trump put "ass" in quotation marks within his tweet.  I have no idea why.)  Although this does happen to be an accurate description of Romney, so what?  If that is what Republicans fear so much, then resigned laughter truly is the only possible response.

Here, I want to move past this silliness and stop avoiding the subtext, which of course is the unvoiced concern about Trump-inspired violence.  In addition, I want to emphasize a point that I made at the end of Friday's column, which is that this entire discussion about Republicans' spinelessness might simply be misguided, because it is quite possible that they are all perfectly happy with Trump, even now.

Friday, October 04, 2019

"Spineless" Does Not Even Begin to Describe the Republicans

[Note: Yesterday on Verdict, I published: "Economics in Deserved Decline: The Comeuppance of a Profession That Took Itself Far Too Seriously."  I will allow that column to stand on its own with further comment, at least for now.  The column below addresses a very different subject.]

by Neil H. Buchanan

Every now and then -- okay, almost every day -- I join thousands (if not millions) of people around the world in asking the same question: "What is it that makes Republicans so subservient to Donald Trump?"  There are facile answers, which I plan to rehash below before moving to something potentially more interesting, but it is nothing short of astonishing that we still have no answer to that very basic question.

After all, Trump was (we remind ourselves for the umpteenth time) not a Republican power player for most of his life.  Indeed, he was not even a Republican.  Yes, he has long held various views that overlapped with many key components of Republican orthodoxy, but even in his racism, he refused to play the nod-and-wink game that Republicans had perfected with their Southern Strategy's more genteel expression of bigotry.

All old news, of course.  Every time some new outrage comes along, however, we are treated to a fresh round of "What are they thinking?" questions about Republicans.  Now, faced with the biggest controversy yet and a possible impeachment vote and Senate trial, we are back where we have been many times before, with Republicans holding the line and the rest of us asking why they -- even faced with all this -- still will not stand up against Trump.

In this column, I will not provide an answer to that question.  I will, however, offer what I at least hope will be some semi-entertaining analysis of what we know about the supposedly horrific consequences that Republicans face when they go rogue.  The bottom line is that, unless there is a story that no one is reporting, the Republicans' spinelessness against Trump is simply impossible to excuse.

Looking at under "wimp," the four best synonyms in this context are: coward, pushover, jellyfish, and pansy.  Republicans, take your pick.

Thursday, October 03, 2019

The Problem Isn't Naming Originalism: A Response to Professor Rappaport

By Eric Segall

Professor Michael Rappaport recently wrote an essay for the Originalism Blog (a site that has been quite generous in publishing my critiques of originalism) titled "The Challenge of Naming the Modern Originalist Movement." In this piece, Rappaport concedes that there are many internal squabbles within the originalist movement and that these disputes can lead to different theories all labeled originalist. He also, suggests, however, that most originalists coalesce around Professor Larry Solum's two bedrock principles allegedly underlying all or most originalist theories: the fixation thesis (the original meaning of the text is fixed at ratification); and 2) the constraint thesis (that meaning constrains today's political actors, including judges). 

Rappaport discusses the various labels that originalsts use, such as New Originalism or his own Original Methods Originalism, and concludes that originalists need to be more sensitive to the naming of their respective theories and try to find more common ground. The entire essay, however, fails to wrestle with the two major defects with Originalist theory today, which are emphatically not a labeling problem. The real defects are that there is no coherence among different originalism theories, and that the fixation and constraint principles don't come close to providing a glue that can bind varying originalist theories together.

Wednesday, October 02, 2019

The Audience for the "Pitch Perfect" Lie

by Michael C. Dorf

My Verdict column for this week continues my praise (begun on the blog here) for the UK Supreme Court's ruling last week invalidating PM Boris Johnson's recommendation to the Queen to prorogue Parliament. I defend the ruling against the charge that courts--whether in the US or the UK--oughtn't to get involved in politics by invoking the limits of the political question doctrine in the US and John Hart Ely's justification of judicial review on "representation reinforcing" grounds. The charge that judicial review is counter-majoritarian or, worse, undemocratic, rings hollow, Ely argued, when the courts intervene to ensure that the People have their say. That, I contend, is what the UK Supreme Court quite expressly did.

My column also points to the irony that the UK--one of the last bastions of legislative supremacy--would embrace full-throated representation reinforcing judicial review at a moment when its pioneer (the SCOTUS) is retreating from it in important respects. I draw a contrast between the prorogation ruling and the US Supreme Court's professed timidity and restraint in last Term's political gerrymandering case. I say "professed" timidity because there are grounds to question whether the current Court's true goal is to stay out of politics, rather than to keep the judicial branch from interfering in political chicanery that benefits Republicans.

That last note leads me to worry that the Supreme Court will prevent lower federal courts from assisting Congress in its current impeachment inquiry if the Trump administration and its allies stonewall, as Rudy Giuliani, Mike Pompeo, and others have already suggested they will. Should that happen, the chief force behind House efforts to investigate will be politics. And that brings me to today's question: If the courts do not assist in compelling responses to subpoenas for documents and testimony--and even if they do--how will the politics play out?

That is a multifaceted question, of course, and I have no crystal ball. Accordingly, rather than attempt to answer the question in all its dimensions, I want to focus on one aspect of the underlying politics: whether Trump and his minions can get away with their apparent strategy of denying the existence of the smoking gun--the readout of Trump's phone call with Volodymyr Zelensky.

Tuesday, October 01, 2019

Downton Economics (psst, it’s not capitalism!)

by Neil H. Buchanan

I am choosing not to write about impeachment today, opting instead to discuss fantasy and history.  Specifically, I want to offer some thoughts inspired by the TV show "Downton Abbey" and its new sequel movie of the same name, the latter of which I saw this past weekend.  But fear not: You do not need to have seen (or liked) the show to follow the argument here.

After briefly summarizing the relevant aspects of the show and film, I will focus on a particularly odd theory that the writers invoke to justify the class-based aristocratic system that they celebrate so fondly.  Whatever else one might say about it, the economic system in "Downton Abbey" is not capitalism.  It is not socialism either, but it might be something akin to communism.  The Dowager Countess would be shocked!

Monday, September 30, 2019

Should Presidential Phone Calls to Foreign Leaders Be a Matter of Public Record?

by Michael C. Dorf

In philosophy, law, and other disciplines in which hypothetical examples play an important function as "intuition pumps," a familiar argument cautions against concluding too much from so-called marginal cases. You might think it permissible for people starving on a mountainside awaiting rescue to draw straws to determine whom to kill and eat, but it does not follow that you think cannibalism is morally permissible under ordinary circumstances. Or you might think an intuition pump so outlandish and unlikely--e.g., would you kill baby Hitler?--that it is simply not worth considering.

We are unlucky enough to live in a time when many questions that could be dismissed in the past as outlandishly unlikely now routinely arise due to our narcissistic norm-breaker of a president. Thus, whereas in the past we would not have worried about how to fortify our institutions against, say, a president who loses an election but refuses to accept defeat, now we must grapple with that scenario as a genuine possibility.

That particular issue has been discussed on this blog at length by Prof. Buchanan (e.g., here with links to prior essays), so today I want to raise a different question that the Trump presidency has put on the agenda: How broad should access to presidential conversations with foreign leaders and others be?

Friday, September 27, 2019

Whistleblower Scandal Contains Reminder of Last Scandal: Time for a New One?

by Michael C. Dorf (cross-posted on TakeCare)

Thus far, most of the press coverage and political discussion of Donald Trump's July 25 conversation with Ukrainian President Volodymyr Zelensky has understandably focused on Trump's request that Zelensky accept the help of Attorney General William Barr and Trump's personal lawyer Rudy Giuliani in digging up dirt on Joe and Hunter Biden. Yet that was only the second of two favors for which Trump asked. ("Favor" and "asked" are used here generously. Despite the comical joint appearance of Trump and Zelensky at the UN on Wednesday in which Trump denied applying any "pressure," in light of what the whistleblower complaint states--at p.2 of the formerly classified appendix--it would be more accurate to say that Trump attempted to extort cooperation from Zelensky, using US military funding as leverage.)

However, Trump didn't try to extort cooperation only with respect to investigating Biden père et fils. He also sought Zelensky's cooperation with AG Barr in investigating CrowdStrike. As this Slate article helpfully explains, Trump was (and probably still is) under the misimpression that to investigate the 2016 Russian hack of the DNC, a single server was shipped to Ukraine, where it went missing. It's all nonsense, of course, but the conspiracy theory seems to be that the Russians didn't hack the DNC at all and therefore, you know, Russian-hoax-witch-hunt-total-exoneration.

Thursday, September 26, 2019

What Limits Do Republicans Have -- If Any?

Note to Readers: My new Verdict columnCould Biden’s Promise to Return to ‘Normal’ End Up Being Even Worse for the Country?, was published this morning.  There, I consider the possibility that a Biden win in 2020 might be a very temporary victory for sanity.  Most importantly, I suggest that Biden's status as the ultimate Washington insider whose longtime default instinct has been not to rock the boat -- an attitude that summarizes his current reason for running, that is, getting back to "normal" -- could backfire spectacularly if his crippling caution turns off voters looking for real solutions.  I might have more to say on that topic in future columns on Dorf on Law or on Verdict, but today's column here is on a different topic entirely.

by Neil H. Buchanan

Over the summer, I tried to find a reason -- any reason at all -- to be optimistic about how the Trump presidency might play out.  I noted in one column that Republicans, who in most ways seem to be doing absolutely nothing to restrain their president-cum-humiliater, might actually be doing things behind the scenes that steer Trump away from his worst impulses.

I offered as examples the failed efforts to put Herman Cain and Stephen Moore on the Federal Reserve Board, some withdrawn judicial nominees, and a few failed Executive Branch nominations -- although one "success" (getting rid of Matthew Whitaker at Justice) led to William Barr's return as Attorney General, which with 20/20 hindsight counts as a massive yikes.

In a followup column, I pointed out that even Trump and Barr had backed away from what initially looked to be a full-on attack on the legitimacy of the Supreme Court in the context of Trump's desire to add a citizenship question to the 2020 census.  We do not know why Trump/Barr ultimately chose not to pursue that route, but that very mystery at least is consistent with the idea that something or someone, somewhere is restraining Trump in various ways.

That might not stop him from doing his worst when the chips are truly down -- as when he loses the 2020 election and is tempted to declare the election void and refuse to leave office -- but it might.  We simply do not know who or what stops Trump from being even more unhinged than he has already shown himself to be.

In the time since I wrote those columns, I had been planning to turn at some point to the related question of the limits that seem to exist on the Republican side, asking what stops them from doing even more outrageous things than they are already doing.  Much to my surprise, however, the emerging impeachment crisis of the past week or so presents the question of Republican limits much more pointedly.

Here, I will first talk about the immediate crisis, speculating on the Republicans' range of possible strategies going forward now that the political terrain has shifted so dramatically.  I will then ask what they will do if Trump survives and they return to something like the status quo as it existed, say, two weeks ago.

Wednesday, September 25, 2019

UK Supreme Court Deftly Relies on an Effects Test Rather than a Purpose Test, But Congress Can and Should Examine Trump's Corrupt Motive

by Michael C. Dorf

Yesterdays' unanimous ruling by the UK Supreme Court was breathtaking in its rebuke of PM Boris Johnson for proroguing Parliament. Technically, the Queen, not the PM, prorogued Parliament, but as paragraph 3 of the judgment notes, she did so pursuant to a century-old practice by which the sovereign acquiesces in a PM's request to prorogue. Accordingly--and properly in my view--the judgment treats the case as posing the question whether the PM, not the Queen, acted lawfully. The answer was an unequivocal "No."

In fact, the high court answered four questions--all against Johnson--to get to that bottom line: (1) Did the challenge pose what we here in the US would call and what the judgment in fact calls a nonjusticiable political question? Answer: Nope; it's justiciable. I'll have a fair bit to say about this aspect of the judgment, along with some comparisons to SCOTUS political question doctrine in my Verdict column next week.

(2) The court next asked what legal standard governs the question whether proroguing is lawful. Its answer based on the principles ingredient in the UK's so-called unwritten constitution: It is "unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive."

In point (3), the high court determined that, given the resulting cramped timetable for Brexit, Johnson's request violated that standard. And finally, in point (4) the court asked what remedy to give. Its answer was to declare the action null and void, so that Parliament remains in session.

As noted above, I'll have much more to say about point (1) (comparative political question doctrine) in my column. I may return to point (4) in a later essay. For now, I want to focus a little attention on what I regard as a wise decision by the Court in points (2) and (3): to focus on effects of the attempted prorogation rather than on Johnson's illicit purpose, even though an obvious implication of the Court's analysis is that Johnson's purpose was illicit.

Tuesday, September 24, 2019

A Biden Hack Goes On the Attack Against Warren

by Neil H. Buchanan

Ed Rendell is a former mayor of Philadelphia and governor or Pennsylvania, a major Democratic power broker, and a strong supporter of Joe Biden.  He recently wrote: "I like Elizabeth Warren. Too Bad She’s a Hypocrite."  The piece, which carries a dateline of September 11, was for some reason published (or maybe republished) in The Washington Post on September 22.  That timing matters, because Biden is beginning to weaken, and the establishment is panicking.

Since Rendell is all but unknown except to political junkies, I did not use his name in the title of this column, choosing instead to focus on the real explanation behind his empty attack piece.  For what is might be worth, I can say that my original title of this column was: "Ed Rendell Might or Might Not Be a Hypocrite, But He Is Certainly a Hack."

And he is.  Among many other examples, it is worth noting that Rendell in 2013 "wrote a big newspaper piece praising 'fracking,' without disclosing his financial ties to gas-extraction companies that use the practice."  His post-gubernatorial activities fairly reek of the kind of sellout culture that people who hate politics have in mind when despairingly saying that "they're all corrupt."

Here, I will discuss the charge of hypocrisy that Rendell flings at Senator Warren, mostly because it is such a silly and flimsy attack.  More to the point, I will discuss why Rendell would write -- and the Post's op-ed page would publish -- this attack now and what it says about Joe Biden's presidential campaign.

Monday, September 23, 2019

Reviewing Justice Gorsuch's New Book: An Originalist Fantasy out of the Old West

By Eric Segall

Justice Neil Gorush's new book "A Republic If You Can Keep It," isn't completely awful. Made up mostly of old speeches and essays, portions of his judicial opinions, and some new content, he provides a portrait of himself as that fishin'-lovin', down home, Western cowboy who just happened to graduate from an elite prep school in Bethesda, Maryland, and then Columbia, Harvard, and Oxford. But there are photos in the book of him fishing (with Scalia even), and he talks about how he and his wife raised two daughters "along with chickens, a goat, horses, a rabbit, dogs, cats, mice, and more in our home on the prairie." He "loves the West," but if you want to know much more about his personal life than that, well you will be disappointed. In this book, he has much bigger fish to fry, or cattle to lasso, or, well you get the idea.

Much of the book is about how originalistm and textualism are great while living constitutionalism, purposivism, and pragmatism are bad. Throughout the book he discusses and provides excerpts from criminal law cases where he ruled for criminal defendants to show that even originalists and textualists can side with those accused of crimes. In this sense, and many others, he follows in the footsteps of Justice Antonin Scalia, who ruled for criminal defendants slightly more often than some might have thought likely given the rest of Scalia's priors. I believe Gorsuch does cares about the rule of law when it comes to denying people their liberty, and this prior is of course consistent with his liberty-and-freedom-loving self-descriptions (if not with originalism). And Chapter 5 of the book "Toward Justice for All," discusses important issues and failings with our civil and criminal justice systems. Here is a short summary:

"Our civil justice system is too expensive for most to afford; our criminal code is too long for most to comprehend; and our legal education system is too monolithic to allow lawyers to serve clients as affordably and well as we might." Okay, good stuff here.

Gorsuch's defenses of originalism and textualism, however, range from sophomoric to bewildering to insulting. He says he is not writing for lawyers and academics, and that's a good thing because my second year law students defend originalism and textualism better than Gorsuch does. In the balance of this review, I'm going to focus on his discussion of originalism.

Friday, September 20, 2019

Appeasing Trump on Wall Funding Will Lead to More Hostage Taking

by Neil H. Buchanan

The news cycle has long since moved on from Donald Trump's false national emergency declaration in February, which he used to take funds that had been appropriated for other purposes and instead redirect them to build his pointless and wasteful wall.  That issue, however, might be about to come back into the spotlight.

There was a bit of interest over the summer in a terrible decision by Trump's Five Enablers on the Supreme Court (whom I will refer to as T5E, because it is too onerous to try to come up with different ways of saying "hyper-conservatives who were put in place through various forms of once-unthinkable political dirty tricks and who now are helping to complete the rightwing takeover of the country, democracy be damned"), who allowed Trump to redirect funds to build parts of the wall while a case is pending to determine whether the redirection of funds is permitted under the relevant statute in the first place.

As Professor Dorf explained in a column at the time, T5E came up with an absurd reading of what counts as "irreparable injury" in the context of injunctions: "Perhaps ... five justices of the Supreme Court think that the emergency justifying extraordinary relief from the Supreme Court is an urgent need to build Trump's wall."  That is, not building the wall is itself the injury that Trump will suffer while waiting to find out whether it is legal to build his wall at all.

As I explained in a followup to Professor Dorf's column, T5E could have simply declared that the issue was non-justiciable as a political question, saying that Congress's failure to override Trump's veto of Congress's cancellation of Trump's emergency declaration (stay with me here) was all that the Constitution requires and nothing more.  That would have eviscerated the entire concept of judicial review of every dispute between the political branches, because the failure by Congress to stop the President would be viewed as sufficient proof that the system is working, every time.  Instead, T5E mangled the law of injunctions, which I argued might be worse — or, strangely, perhaps somehow better — than the alternative.

Now, however, the picture is becoming a bit clearer in terms of how the immediate politics will play out on the wall-funding ploy, and it has nothing directly to do with the Supreme Court at all.  We are, in fact, about to enter a new version of old-fashioned Republican hostage-taking in the budgetary realm.  And if we thought that it was ugly before Trump came along, this will be worse.

Wednesday, September 18, 2019

Trump's Planned Revocation of California's Clean Air Authority is Illegal

by Michael C. Dorf

A provision of the Clean Air Act requires the EPA Administrator to waive federal regulatory authority over vehicle emissions for states that wish to enforce their own standards if those standards are "at least as protective of public health and welfare as applicable Federal standards" and necessary "to meet compelling and extraordinary conditions." The waiver provision only applies to states that regulated pre-March 30, 1966 or to states that adopt the standards of such states.

As nearly all readers of this essay undoubtedly realize, in practice that means that California and states that adopt California's standards regulate air pollution more strictly than does the federal government. Various versions of the waiver for California and other states that voluntarily choose to participate have been in place for decades, under both Republican and Democratic administrations. But Donald Trump and EPA Administrator Andrew Wheeler find clean air threatening, so they plan to revoke California's waiver.

California Governor Gavin Newsom and state AG Xavier Becerra responded to the proposal by announcing their intention to sue. Here I shall explain why they have a good chance of succeeding.

Mere Pretext, Illicit Motive, and a Proposed New Level of "Super-Strict Scrutiny"

by Michael C. Dorf

In my latest Verdict column, I discuss the recent announcement by EPA Administrator Andrew Wheeler of a new initiative to reduce government-funded and government-mandated testing of chemicals on animals. I consider objections of environmental and public health groups. I say these groups have good reasons to question the motives of Wheeler and the Trump administration, given their record on environmental protection more generally. Perhaps Wheeler and Trump do not care about reducing animal use and suffering but are only using animal protection as a pretext to deregulate the chemical industry. I conclude that while the subjective motives of Wheeler and Trump provide a reason to take a very close look at whether the policy is justified, after taking that look, the policy should be supported.

In the column, I distinguish between two sorts of bad motives. (1) Merely pretextual motives might be bad in a policy sense but not inherently illicit. Deregulation is an example. Environmentalists like me might think that any particular program that is justified in terms of something else (like animal wellbeing) is simply a pretext for deregulation that is on-net harmful, but we would not say that deregulation is inherently illegitimate. (2) Some other motives are inherently illicit. Here I have in mind various forms of animus that constitutional and statutory law single out as presumptively impermissible. Standard examples include race, national origin, race, sex, sexual orientation, gender identity, and others. There are rare circumstances in which classifications based on one or another of these grounds is permissible, but maybe policies rooted in animus on such grounds ought never to be permissible.

In the balance of this essay, I want to explore how the law does and should distinguish between what I'll call mere pretext and illicit motive.

Tuesday, September 17, 2019

Anti-Tax Populism versus the Actual Boston Tea Party (and History in General)

by Neil H. Buchanan

This past weekend, I was in Boston for the first time in a few years.  Because I had never gone to any of the local tourist attractions during the ten years that I lived there, my brother and I decided to go to a few of the Revolutionary War-era sites that are scattered around the area.  I was not expecting to end up with fodder for a column here on Dorf on Law, but I guess this proves that I am never truly off the clock.

In any case, I found it interesting to compare and combine the information provided at two historic sites.  The Boston Tea Party site includes a replica of one of the merchant ships involved in that historic moment, which was included as part of a guided tour of an onsite museum/tourist attraction.  A few miles away, the Bunker Hill site in Charlestown included a demonstration of musket firing along with narrated information about the battle there in 1775.

As I will explain below, there is an interesting difference between the way the two historic sites treat the supposedly anti-tax message of the American Revolution.  But even taking those differences into account, the overall conclusion is that modern conservatives have (deliberately or not -- but probably deliberately) mangled American history in the service of their present-day reactionary agenda.

Monday, September 16, 2019

Joe Biden, Hipster

 by Michael C. Dorf

"It's not [that poor parents] don't want to help. They don't — they don't know quite what to do. Play the radio, make sure the television — excuse me, make sure you have the record player on at night, the — the — make sure that kids hear words. A kid coming from a very poor school — a very poor background will hear 4 million words fewer spoken by the time they get there." -- former Vice President Joe Biden at the Sep 12, 2019 Houston Democratic Presidential Debate in response to the question "what responsibility do you think that Americans need to take to repair the legacy of slavery in our country?".

Hey America, it's me, Joe Biden, Uncle Joe as a lot of the young folks call me. So listen, I've been reading where people say I'm out of touch, but the truth is I'm only a hair older than Bernie and uhm, the Senator from, uhm, the woman from, my friend . . . Elizabeth! . . . and of course Donald B. Trump.

What a bunch of malarkey. I'd beat any of them in a foot race, a game of darts, or one of those electronic measuring fitness thingies on that what is it called? Wii consoles.

So anyway, I read somewhere they're saying that no one uses record players anymore and this means that I'm not ready to lead America into the 25th century. That's double malarkey. Hippies, excuse me, hip stars, hip stirs, yes hipsters have record players. Or as we called them when I was growing up as a white working class boy in Scranton, phonographs.

Friday, September 13, 2019

Why Are Big Businesses' Executives So Awful Except When They're Not?

by Neil H. Buchanan

When I linked to The Washington Post's website moments ago, a bright red CNN-like banner above the name of the newspaper announced:

The linked article's sub-headline reads: "Faced with pressure to curtail suspicious opioid shipments, an alliance fought back with every weapon at its disposal."

Another day, another example of grotesque corporate greed and soullessness.  There is a reason that Big Pharma has joined Big Banks, Big Airlines and the more general Big Business as bogeymen for any American with even a mild dollop of populist sentiments.

And all of those Big institutions, in turn, have been responsible for some truly awful things, most especially including a sustained and highly successful political attack on labor unions, which led to companies underpaying workers and backing (and largely writing) laws that enable various strategies to deny benefits and so on.  Epic inequality did not come out of nowhere.

I say all of this to make clear that I do not have a soft spot in my heart for large corporations.  I am, however, interested today in the phenomenon of big businesses occasionally doing surprisingly positive and even progressive things, the most recent example having to do with guns.

Thursday, September 12, 2019

The Myth of the College or University Professor Uninterested in Teaching

by Michael C. Dorf

From time to time I hear from former students. Whether they are reporting on their successes (or much less frequently, their challenges), seeking a reference for a job, or asking for my advice on a case on which they're working, I'm almost always glad to hear from them--although my policy with respect to advice on cases is to help only with matters that they are handling pro bono and then only if they've cleared my involvement with the client and/or the lead attorney. Occasionally, a student will write a simple note of thanks, which is invariably gratifying. Sometimes the note of thanks is a backhanded compliment, as in "I'm surprised that something I learned in your class turns out to be useful in practice."

Very occasionally I receive a note like the one I was incredibly gratified and humbled to receive last week, from a recent graduate just generally thanking me for my guidance. When that sort of thing happens, I usually feel some regret at not having done the same for the teachers and mentors who were instrumental in my own intellectual and professional development. Because they are no longer with us, I think in particular of Dan Meltzer, whose Federal Courts class thirty years ago influences mine just about every day, and Judge Stephen Reinhardt, who taught me that anything worth writing is worth rewriting ten or twenty times. I wish I had been more gushing in my thanks when they were alive.

I was extremely fortunate to have been taught by great scholars who were also great teachers, people like Bernard Bailyn, Larry Tribe, Robert Nozick, Stanley Hoffman, and Judith Shklar. I also took courses from lesser-known scholars and sections with grad students just getting started who were terrific instructors. Whatever skill I have as a writer I owe chiefly to my seventh and eighth grade English teachers (Ms. Green-Lee and Ms. Petersen, whose first names I don't recall and may never have known). I also had some not-great teachers, including some who were renowned scholars.

My own experience as a student turns out to be fairly typical. I had great teachers who were also great scholars. I had not-so-great teachers who were great scholars. I had great teachers who were not-so-great scholars or not scholars at all. And I had not-so-great teachers who were not scholars or not-so-great scholars. There was for me, as in general, no correlation between teaching and scholarly acumen.

Wednesday, September 11, 2019

Bolton Was Awful; His Successor Could Be Worse

by Michael C. Dorf

What should a reasonable person think about the departure of John Bolton as National Security Adviser? In just about any other administration, it would be very welcome news. Bolton is a Strangelovian hawk who learned nothing from the US misadventure in Iraq that he and others of his ilk promoted. Trump reportedly fired him (or was at least happy to see him go) for the right reason: Bolton was a source of resistance to one of Trump's few sensible impulses--his preference for diplomacy over force in foreign affairs.

And yet . . . Bolton probably provided a useful check on Trump's not-at-all-sensible foreign-policy impulses: his emphasis on showmanship over substance; his elevation of personal relations with foreign leaders over details; his embrace of authoritarians at the expense of liberal democratic values and human rights; and his desperation to "make a deal" so that he can claim victory even when the deal at hand is a bad one or at best a worse version of the prior status quo that Trump impetuously undermined.

Tuesday, September 10, 2019

The Paradoxically Perfect Millennial as a Cover for Republicans' Attacks on Higher Education

by Neil H. Buchanan

Virtually nobody talks about how responsible and well behaved millennials are, not even millennials themselves. As with all younger generations, there are complaints from oldsters like me (but not including me) about how shallow and pampered "kids today" can be.  Why can't they be like we were ... perfect in every way?

Even so, there is a subset of millennials who have suddenly become the poster children for the argument not to do anything about student debt and high tuition costs.  As I noted in my most recent Verdict column last week, there is a new refrain from those who are looking for an excuse not to have the government fix the mess that higher education financing has become in the last generation, which is that some young people did it right, and it would be unfair to those responsible young heroes to make it easier for anyone else.

This is, of course, a shamelessly opportunistic argument on the part of the Republicans, who think that subsidized higher education is just another form of (cue the scary music) socialism.  They could not care less about poor kids who somehow manage to work three jobs while going to school and graduating -- in part because almost no such people exist.  The reality is that college is now so out of reach (due in large part to Republicans' budget cutting at the state and federal levels) that fewer and fewer kids from modest beginnings can finish college.

But what of the few -- and for all we know, it might be only one hardy soul -- who "did everything right" and got through college without debt (and without any help from anyone else, i.e., they did what was literally impossible by "pulling themselves up by their own bootstraps")?  Should our admiration for such sacrifices make us decide to do nothing about those who were not able to reach that happy result?  Should we decide not to adopt a new program that would deliver better results?

Referring to those few people who (much like the perfect millennials) somehow manage to get through a medical crisis without being driven into bankruptcy, I noted in my Verdict column that they might respond to a new program that makes it easier for people in the future to deal with these financial challenges: "Gee, I wish this new program had existed back then.”

And that is understandable.  I argued that that is not, however, an excuse to do nothing now, because "that is simply how change works. Using it as an excuse to do nothing elevates individual pique and resentment above social and economic progress."  Why would someone say, "No, you can't make anyone's life better than mine was," rather than, "Wow, it's so great that no one will have to go through what I went through ever again"?

Monday, September 09, 2019

A Unified Theory of Originalism and Living Constitutionalism

By Eric Segall

A recent article by Professor Randy Barnett, one of our country's leading originalist scholars, and Evan Bernick, currently a law clerk for Judge Sykes of the Seventh Circuit, articulates what the authors call a "unified theory of originalism." Their thesis is succinctly stated in the first paragraph of their article:
Constitutional originalism is defined by a commitment to the original meaning of the letter of the constitutional text. Our thesis is that originalism must be committed to the Constitution’s original spirit as well—the functions, purposes, goals, or aims implicit in its individual clauses and structural design. We term this spirit-centered implementation 'good-faith constitutional construction.'
There is much to commend in this attempt to describe how judges should decide hard constitutional cases. In fact, absent a theory of judicial review that advocates for a clear error, strongly deferential approach (my personal preference), Barnett and Bernick have articulated a powerful guide for judges to use to decide whether laws violate the Constitution.  But like most originalist scholarship that does not include strong deference, what Barnett and Bernick are suggesting is indistinguishable from how most so-called living constitutionalists think judges should decide cases. They could have titled their piece "A Unified Theory of Judicial Review for Originalists and Living Constitutionalists," and they would not have had to change a single word.