Thursday, January 31, 2019

Should Congress Outlaw Shutdowns?

by Michael C. Dorf

As I discussed in my last post, I think it unlikely that when the clock strikes midnight on Valentine's Day, the partial federal government shutdown will resume. To be sure, with Trump all (horrible) things are possible. Still, I regard two alternative scenarios as much more likely: (1) Congress adopts legislation that both extends DACA and TPS and contains funding for what can be characterized as a wall by Trump and a not-wall by Democrats; or (2) Congress adopts legislation that funds the government on a longer term basis, while Trump unilaterally declares a national emergency to fund his wall.

Even before the latest shutdown ended, members of Congress introduced bills to outlaw future shutdowns. Ohio Republican Senator Rob Portman introduced a bill--the End Government Shutdowns Act--that would renew existing funding levels for 120 days. In the event that no new funding legislation is passed, a 1% across-the-board funding cut would then occur, followed by further 1% cuts every 90 days, until new legislation is enacted.

As an alternative, Virginia Democratic Senator Mark Warner proposed a bill with the acronym Stop STUPIDITY Act. In the event of failure to fund the government in time, it would automatically renew existing funding levels, except for Congress and the office of the president, thus providing incentives for lawmakers (including the president, given his ability to sign or veto legislation) to act, while sparing federal employees and the public the pain of a shutdown.

Should Congress enact either the Portman or Warner bill? Let's dive in.

Wednesday, January 30, 2019

Why Use Phrases Like "Implied Consent"?

by Sherry F. Colb

In my Verdict column for this week, I discussed the case of Mitchell v. Wisconsin, on which the U.S. Supreme Court recently granted review. The case asks whether a state can suspend the warrant requirement for blood samples that police wish to take from unconscious DUI suspects. The Wisconsin statute at issue provides that drivers give implied consent to such warrantless blood tests when they drive in the state and their driving gives rise to probable cause to believe they are intoxicated. Furthermore, if they become unconscious when police wish to take blood, they forfeit their right to revoke their implied consent, because they cannot revoke anything while unconscious. The Supreme Court will decide whether this makes sense as a matter of Fourth Amendment doctrine.

In this post, I want to focus on the words "implied consent" and ask why anyone chooses to deploy such language. First, let us think of legitimate uses for the phrase. You go to a hair salon and give the receptionist your name. The receptionist offers you coffee and says that "Kaylie" will be working with you today. You head over to Kaylie's station when it is your turn and sit down on the seat. "So what are we doing today?" she might ask, simultaneously running her fingers through your hair from different angles. She never asked whether she could run her fingers through your hair, and you never told her she could. Indeed, she may not have even gestured or otherwise indicated her intention to touch your hair, and you may not have signaled her in any way. If you claimed that she had committed a battery, however, no reasonable person would accept the claim. By sitting in the chair at Kaylie's station, you impliedly consented to her running her fingers through her hair. If you prefer that no one touch your hair, you probably need to steer clear of the haircut seats at the salon.

Tuesday, January 29, 2019

A Candidate Talks About Intergenerational Justice (Somewhat Coherently)

by Neil H. Buchanan

One of the longest of long shots in the Democratic presidential field is Pete Buttigieg, the mayor of South Bend, Indiana.  One of the reasons that he is such a long shot is that, to state the obvious, he is the mayor of South Bend, Indiana.  As resumes for presidential candidates go, this is pretty unimpressive stuff.

The mayor of Los Angeles, Eric Garcetti, is apparently is thinking about running, too, but at least LA is the size of many European countries -- and even then, Garcetti seems an unlikely candidate.  On the other hand, enough people voted for a nobody named Donald Trump in 2016 for him to sneak through the Electoral College into the Oval Office.  Also, Buttigieg's name might sound odd, but we did elect a guy named Barack Hussein Obama -- twice.  Who knows whether Buttigieg might find some traction?

Because political handicapping is not part of my job description, however, I am happy to take Buttigieg's entry into the race as an opportunity to discuss his central message.  He is a policy wonk, but he has an overarching idea that motivates his campaign: intergenerational justice.  He thus offers an exciting opening to address issues of old vs. young and to think about matters that are too often overlooked.

On the other hand, Buttigieg's early statements also show the dangers of framing a vision around the notion of intergenerational conflict.

Monday, January 28, 2019

Sixteenth in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Roger Stone & Jerome Corsi)

by Diane Klein

Back in May, 2018, Roger Stone announced that he was "prepared to be indicted" by Mueller, and sure enough, in a pre-dawn raid on January 25, 2019, he was arrested by the FBI.

Sunday, January 27, 2019

Schrödinger's Wall

by Michael C. Dorf

President Trump's capitulation last week to the Democrats' plan to reopen the government for three weeks while members of Congress of both parties (and presumably representatives of the president) negotiate allows for only two realistic options: (1) An agreement that permits Trump to claim that some amount of money has been appropriated for a "wall" while also permitting Democrats to claim that no money has been appropriated for a "wall"; or (2) no agreement on Trump's wall, a long-term spending bill that Trump signs, and a Trump declaration (over Democratic objections) of a national emergency that enables him to shift money from other appropriations to wall funding.

Despite Trump's initial statement that failure to reach a deal that includes wall funding could lead to shutting down the government again, I regard that option as essentially off the table. The longest-ever shutdown gave Trump no leverage and undercut his already-poor polling. Mitch McConnell and Trump's own advisers will explain to him in the strongest possible terms that a second shutdown would be politically catastrophic. Although I do not entirely discount the possibility that Trump would do something politically suicidal to appease Ann Coulter et al, I suspect that Trump will heed a warning from McConnell, House minority leader Kevin McCarthy, and others that a second shutdown could result in bipartisan legislation reopening the government and the override of a Trump veto.

In saying that a second shutdown is highly unlikely, I do not mean to criticize the federal workers who remain very concerned about that possibility. In light of their recent trauma, they are acting prudently by making plans based on the assumption that there will be another shutdown. That said, I'll focus here on two scenarios: (1) A compromise versus (2) no deal and a national emergency declaration.

Friday, January 25, 2019

Democrats 2020: The Swinging Septuagenarians

by Neil H. Buchanan

Even though the next U.S. presidential election will be held more than 21 months from now, it is understandable to want to talk and write about the candidates, even as one laments that the U.S. does not have snap elections that force shorter campaign seasons.  It is actually a pleasure of sorts to think about the prospect of replacing the worst and most dangerous president ever.  With no news about the shutdown, it is even more tempting to focus on the Democratic contenders.  What else is there to worry about, after all -- other than everything?

With that non-apology on the table, I hereby pick up where my last column left off,  There, I asked which types of political apostasy in a candidate's past should count as "unforgivable."  Much to my chagrin, the candidate who failed my nascent forgiveness test is Senator Kamala Harris, who had been my personal favorite possible candidate for the past few months.  I will summarize my reasoning for that conclusion below in the course of assessing a few other candidates.

Although I am not planning to turn this into a series, I suspect that one will unavoidably emerge.  In any event, today I am asking whether the three oldest candidates -- Bernie Sanders (current age: 77), Joe Biden (76), and Elizabeth Warren (turning 70 on June 22) -- can or should be forgiven for actions or positions in their pasts that have recently become anathema to most Democratic voters.

Thursday, January 24, 2019

Is the President a "They"?

by Michael C. Dorf

Notwithstanding the title of this column, I do not intend to diagnose Donald Trump with multiple personality disorder. Rather, I mean to invoke a well-known article by Kenneth Shepsle--Congress is a "They," Not an "It": Legislative Intent as Oxymoron. Relying on difficulties long ago identified by Condorcet, Arrow, and public choice theory more broadly, Shepsle made a point that had hardly eluded scholars and judges but which, he argued with some force, many of them seemed to forget from time to time: the intent of a legislature in enacting a law is not merely difficult to discern but usually incoherent.

Shepsle's article aimed at intentionalism in statutory interpretation, but he also criticized self-described textualists who limited their critique of intentionalism to an attack on sources. It's not enough to say (as Justice Scalia used to say) that committee reports and other forms of legislative history are unreliable evidence of the legislature's intent; Shepsle argued that there could not be reliable evidence of the legislature's intent, because there is (almost always) no such thing.

Judges and scholars who are persuaded by Shepsle's argument or skeptical of legislative intent for other reasons typically have fewer difficulties in identifying the intent of an individual actor, such as a mayor, governor, or president. That is true whether the question is what some action (an executive order, say) means or whether it is valid when judged relative to some constitutional test (such as equal protection) that may make subjective intent relevant in some particular context. Accordingly, judges and scholars who argue that the intent of the legislature should guide neither statutory interpretation nor constitutional evaluation may be more willing to rely on intent-based tests when the actions of a single officer are involved. After all, Congress is a they, but the president is a he (or some day, a she).

Necessarily? In the balance of this column I want to point to a tension between the so-called unitary executive theory and judges' reluctance to impugn the motives of the president. In doing so, I'll build on my latest Verdict column, which discusses the litigation over the Trump administration's efforts to add a citizenship question to the census.

Wednesday, January 23, 2019

Michael Flynn ∩ Enes Kanter = Erdoğan

by Diane Klein

Enes Kanter is afraid for his life.  And not because he might be fouled by Vince Carter or Dirk Nowitzki. The Turkish NBA player, until recently best known to Americans primarily as a double-double machine for the New York Knicks, stayed in the U.S. last week while his team traveled to London, because he was not confident his security could be assured.  What has put him at risk is his criticism of the current president of his home country, Recep Tayyip Erdogan, "a dictator in all but name," who is now seeking Kanter's arrest and extradition due to the player's association with the man Erdogan blames for the failed July 15, 2016, military coup attempt against him, his former ally, Fethullah Gulen.

Kanter's ties to Gulen are real; the athlete says he was with Gulen on the night of July 15, 2016, and he is a supporter of Gulen, though it has estranged him from his family in Turkey. However, the precise role of Gulen (a legal permanent resident in the U.S. now living in Pennsylvania), or his followers, in the coup attempt in Turkey, is hotly contested.  As was widely reported at the time, "Gulen has been blamed by the Turkish government for orchestrating a failed military coup against Erdogan's government," and Al-Jazeera lays the coup squarely at the feet of "Gulenists," members of Gulen's "Hizmet" movement.  Some EU sources disagree.  What is not disputed is the Erdogan regime's desire to have its revenge on Gulen - or the lengths to which they are willing to go, to have it.

Tuesday, January 22, 2019

How Unforgivable Are the Democratic Candidates' Various Mistakes?

by Neil H. Buchanan

As Donald Trump continues to prove his unfitness for office -- indeed, as he continues to demonstrate his complete lack of empathy for anyone who doe not support him (or even for millions who do) -- the Democrats are now launching their 18-month marathon to determine who will replace Putin's puppet.  Things are already rather interesting.

Earlier this month, Professor Dorf wrote a column discussing the flurry of media coverage about a whisper campaign designed to sink Senator Elizabeth Warren's candidacy.  The idea is that Warren is supposedly not "likable," or something, and the people who want to bring Warren down are saying that she has all of the personality issues that supposedly were Hillary Clinton's undoing.

Dorf's question was whether a person who does not buy into the obviously sexist basis for that argument can responsibly take others' sexism into account when deciding who should be the Democratic nominee next year.  Drawing from a Supreme Court case called Palmore, which described a situation in which we can and should refuse to validate (that is, to be complicit in) others' biases, Dorf argued that there are nonetheless times when the consequences of ignoring those biases are simply too serious to ignore.

The possibility of giving Trump a second term in office is one such unacceptable consequence.  He concludes: "Trump is an existential threat to American democracy, world peace, and the habitability of planet Earth. Even a small diminution in the likelihood of defeating him in 2020 is too high a price to pay for compliance with the Palmore principle."

I thus begin here by emphasizing that any Democrat (in fact, almost anyone at all) would be better than Trump, which means that none of my forthcoming criticisms of the Democratic candidates is serious enough to move us -- for Palmore-style reasons or any others -- to say that any of those candidates is fatally flawed.

I do, however, want to ask whether the inevitable scrutiny of the candidates can turn up issues so worrying as to be essentially disqualifying (again, assuming that the alternative is another Democrat, not Trump -- or Pence).  So far, much to my surprise, there is only one candidate who is in serious trouble on such grounds: Senator Kamala Harris.

Monday, January 21, 2019

Originalism and Deference: A response to Ilan Wurman

By Eric Segall

Professor Ilan Wurman of Arizona State has written a thoughtful and mostly fair review of my new book Originalism as Faith. I wanted to briefly respond because the one aspect of the review that I think muddies the waters also happens to be what I think is the major new contribution of my book.

Friday, January 18, 2019

McConnell's Usefully Bad Argument About Investing in Border Security

by Neil H. Buchanan

At some point, Senate Republicans will have to become involved in efforts to reopen the federal government.  Their majority leader, Mitch McConnell, has thus far blocked the Senate from voting on any of the funding bills that the House has sent its way.  Worse, he has simply refused even to try to do anything positive, sitting idly by while Trump's temper tantrum endangers millions of Americans' lives, threatens their financial well-being, and puts our futures at risk.

What does capture McConnell's attention?  Today's Washington Post includes an op-ed with McConnell listed as the author, and it is actually easy to believe that he wrote it himself.  After all, it is all about McConnell's lifelong commitment to rigging elections, and it is certainly written in his voice, including his oh-so-snarky labeling of a House bill "the Democrat Politician Protection Act."  Yes, even now, McConnell insists on using "Democrat" instead of "Democratic," which has long been part of Republicans' version of political correctness.  (For some reason, they think it quite clever to call things "Democrat shutdowns," "Democrat intransigence," and so on.  Go figure.)

The larger problem is that McConnell and his colleagues have simply given up on the idea of governing, lapsing into old habits and burbling talking points rather than engaging honestly on any issues.  Although McConnell does not emphasize budgetary issues, his op-ed does provide an opportunity to talk about Donald Trump's border wall obsession in terms of objective economic costs and benefits.  Unsurprisingly, the analysis does not look good for Trump.

Thursday, January 17, 2019

Can Dogs Invade Our Privacy?

by Sherry F. Colb

In my column for this week, I discuss a case from Minnesota that may make it to the U.S. Supreme Court. The case raises the question whether a dog sniff of a private resident's door constitutes a "search" for purposes of the Fourth Amendment bar on unreasonable searches and seizures. The Minnesota Supreme Court held that the answer was "no" and that police therefore needed no warrant, probable cause, or other indices of reasonableness for having brought the drug-sniffing dog to detect narcotics in the house from outside of the house.

The answer to the question may turn on how the Court defines a "search." The Katz v. United States  definition (really the Harlan concurrence's definition) is the invasion of a reasonable expectation of privacy. The more recent (though also more ancient) definition has to do with the invasion of property, of "persons, houses, papers, and effects," rather than an inquiry about privacy and the expectations that people do and ought to be able to hold. We could answer both questions the same way, to be sure, but one might head in different directions depending on which question one selected as critical. Should people be able to expect privacy from K9 police detecting drugs in their homes? Does the use of K9s interfere with a person's enjoyment of his property rights in his home?

Wednesday, January 16, 2019

Why Professor Hemel is Wrong About Life Tenure for SCOTUS

By Eric Segall

Professor Daniel Hemel of the University of Chicago has written a thoughtful essay in Politico on why allowing Supreme Court Justices to serve for life, while raising some problems, is not as bad as the two potential cures that I and many other scholars have advocated (term limits or a mandatory retirement age). Although Hemel raises some strong arguments, they are not ultimately persuasive.

A Second Brexit Referendum Would Not Be Undemocratic

by Michael C. Dorf

Now that Parliament has resoundingly rejected the Brexit deal that PM May negotiated with the EU, a replacement deal seems highly unlikely. EU authorities could make some token concessions or give some nice-sounding reassurances, but the margin of defeat strongly indicates that nothing to which the EU could reasonably agree would come close to satisfying the coalition of (mostly Tory) Brexiteers and (mostly Labour) Remainers who voted no yesterday. Other than another vote on more or less the same deal with what most observers expect would be more or less the same outcome, that leaves two main options: (1) crash out of the EU without a deal, a chaotic process that would have very harmful economic consequences and potentially harmful political consequences at the Ireland/Northern Ireland border and/or elsewhere; or (2) remain in the EU after all. Here I want to explore option (2).

One way for the UK to remain in the EU would be for Parliament to simply ignore the result of the 2016 referendum. The UK was under no obligation to hold a Brexit referendum in the first place. When Parliament authorized such a referendum in 2015, it did not commit to abiding by the result. And even if the 2015 Act had so committed, the commitment could not bind a later Parliament, which could simply override it. Why is no one talking about this possibility? Presumably because everyone assumes that Parliament is either bound as an unofficial matter to follow through with Brexit, given the 2016 result, or because most people think that as a political matter, Parliament cannot unilaterally pull the plug on Brexit.

Accordingly, nearly all of the discussion of remaining after all assumes that there would be a second referendum. That brings me to a curious but surprisingly widespread argument one hears against a second referendum: that it would be undemocratic. Here I want to examine that argument. I'll conclude that despite some superficial appeal, it is unpersuasive.

Tuesday, January 15, 2019

Romney's Revealingly Empty Rebuke of Trump

by Neil H. Buchanan

It was never quite clear why Mitt Romney, the Republicans' failed 2012 presidential nominee, decided to run for the U.S. Senate.  He is turning 72 in March, he has no particular policy interests that seem to motivate him, and he was signing up for a job that often comes with almost no power or responsibility.

True, he knew that he could win easily (running in his current home state of Utah), but even that required some humiliating suck-up time to get Republican voters to forgive him for saying nasty things about Donald Trump in 2016.  Why take the job at all?

Fifteenth in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Neal Katyal and Bill Barr)

by Diane Klein

Today, confirmation hearings begin for William Pelham Barr as U.S. Attorney General, a position he held from 1991-1993 under George H.W. Bush.  Top of mind among Senators are Barr's statements about the Mueller investigation contained in an unsolicited 20-page memo he wrote in June 2018.  To the extent those statements tell us something about his views of the powers and duties of the special counsel, and the relationship between the Justice Department and the Special Counsel, it might be worth consulting the drafter of those regulations - Neal Katyal, who served that role as a 29-year old new lawyer in 1999 working for Janet Reno (and later served as acting Solicitor General under Obama).

Monday, January 14, 2019

The Least Interesting Branch

by Michael C. Dorf

Recently, a longtime DoL reader emailed to ask whether the Trump administration had made my life  as a constitutional scholar more interesting. Yes, I replied, but I added that I would gladly accept some boredom in my professional life in exchange for more sanity as a citizen. Yet I may be suffering from the worst of both.

Trump serves us up a constant barrage of crisis-threatening legal questions that have gone unanswered by the courts because no one had previously tested these particular limits. Can a president pardon himself? Can a sitting president be indicted? Can the president forbid the dissemination of a special prosecutor's report on bogus national security grounds?

Some of Trump's greatest outrages lead to litigation, and some of that litigation eventually reaches the Supreme Court, as the Travel Ban eventually did. But here we are two years into this execrable presidency, while disputes over most of his rage-tweet-inspired policies either languish in the lower courts or do not give rise to litigation at all. Meanwhile, the Supreme Court busies itself with cases that may be very important to the litigants and may present questions of systemic importance in various sub-categories of American life and law, but that are . . . well . . . boring.

Friday, January 11, 2019

National Emergencies: The Big Picture

by Michael C. Dorf

Donald Trump and his spokespeople have repeatedly floated the possibility that, if Democrats in Congress do not accede to his demand for $5.7 billion of border wall funding in exchange for ending the partial government shutdown, he will declare a national emergency and divert previously allocated funding to building his border wall. The proposal raises numerous legal questions. Do the statutes that allow the declaration of such an emergency really vest that much discretion in the president? How have previous presidents used this authority? Are there judicially enforceable rules or standards about what constitutes an emergency? How much, if any, deference, would the president receive, assuming the courts were willing to subject the declaration of an emergency to judicial oversight? What party or parties would have standing to challenge an emergency declaration leading to the shifting of funds to wall construction? What cause(s) of action could be brought? What kind of relief could a court order?

These and other questions are interesting and potentially important. Depending on the course of events, I may address one or more of them. But they are fundamentally lawyers' questions. Debating them in a sense concedes way too much to Trump and his apologists, much in the way that focusing on legal questions always risks obscuring the policy and moral stakes. Consider Trump's travel ban. In Trump v. Hawaii, the Supreme Court addressed the question whether, in light of the deference traditionally shown the president, the third version of the travel ban was so clearly unlawful as to justify judicial invalidation. The answer should have been yes, so the Court got it wrong, but the legal questions never should have even arisen. Yet because of the tendency in the US to equate legal and policy questions (a longstanding tendency that even Tocqueville noted in Democracy in America), Trump was able to claim that he was vindicated by the Court when, judged from a policy standard only, the travel ban was and is grotesque.

Accordingly, I want to set aside most technical legal questions to ask some basic questions about Congress, the president, and national emergencies.

Thursday, January 10, 2019

How Bad Will Things Become? Part Nine: A Useful Not-Quite-Overruled Precedent

by Neil H. Buchanan

If there is ever another president of the United States, and if she is a Democrat, we will have a different kind of divided government, with a rabidly conservative Supreme Court set to do battle against its ideological foes in the political branches.  Even if the Senate flips back to the Democrats, of course, Republicans will continue to engage in guerilla warfare by finding parliamentary tactics to gum up the works, but I want to focus on the Court's role as a barrier to future progress.

In my newest Verdict column, I consider an admittedly odd hypothetical question: If a future Congress and President agree to tax rich people more effectively than we currently do, will the Court's hyper-conservative bloc use a discredited precedent to invalidate that tax?  My answer is, "Yes, they might."  Here, I want to explore that discredited precedent a bit more, in order to return to the larger question of just how bad things might become under the solidified, stolen, extreme right-wing majority on the Supreme Court.

Wednesday, January 09, 2019

Facebook, Automated Censorhsip, and Experimentalism

by Michael C. Dorf

My latest Verdict column discusses the recent revelation that Facebook employs a small army of moderators armed with thousands of rules for censoring hate speech. To summarize, I note: (1) FB appears to have adopted the policy partly in response to a public outcry over offensive and outright lethal uses of its platform; (2) in addition, in many of the countries in which it operates, FB is legally obligated to censor hate speech; (3) that obligation means the effective export of other countries' restriction to the US, where our First Amendment protects hate speech as free speech; (4) but because FB is a private company, its censorship is legally permissible here; (5) in choosing to censor via rigid rules, FB follows roughly in the path of US legal doctrine, which, where speech is concerned, generally prefers the vices of rules -- under- and over-inclusiveness relative to their background justifications -- to the vices of standards -- uneven application and risk of abuse by decision makers given substantial discretion; and (6) there is no clearly superior option.

Or, as I conclude in the column: "So yes, Facebook’s rules are ridiculous. But given the legal imperative to censor hate speech in many of the countries in which it operates, Facebook may not have any especially good alternatives."

Here I want to probe a little deeper into the FB censorship regime. I'll speculate on the use of computer code in online censorship. I'll then consider a form of regulatory regime--experimentalism--about which I've written in my academic work.

Tuesday, January 08, 2019

The President Cannot End a Shutdown by Fiat

by Neil H. Buchanan

As the insanity of life in Donald Trump's world takes an even more extreme turn, we now find ourselves asking whether he might actually have meant it when he said that he will keep the government shut down for months or years unless he receives funding for his pointless and wasteful wall.  What could be weirder than this?

Well, the latest bizarre idea within this bizarre new reality is the claim that he might invoke presidential war powers to use the military to build his wall.  As of this morning -- and subject to any forthcoming tweets, off-the-cuff comments yelled at reporters, or simply a change of the subject -- the possibility of presidential unilateralism is still on the table.

As a matter of law, that ridiculous idea has already been roundly rebuked, including in a very good op-ed by Yale law professor Bruce Ackerman.  If legal analysis matters anymore, Trump will not have a leg to stand on.  (On the other hand, Jack Balkin's "on-the-wall/off-the-wall" turn of phrase -- recently discussed here and here on Dorf on Law -- becomes all too literal.)  Harry Truman could not seize steel mills during wartime, and Trump cannot have the military violate the law to respond to a non-crisis on a peaceful border.

All of this discussion of shutdowns and presidential unilateralism, however, has brought to mind a discussion that briefly arose during the October 2013 government shutdown, which some readers might recall was Ted Cruz's entry point into the national consciousness as an obnoxious and destructive jerk, making his Republican colleagues hate him even more than they already did.

At that time, the dynamic was quite different, as I will explain in a moment; but there was some discussion about the possibility of President Obama taking unilateral action to end the shutdown.  Would that have been a good idea?  And even if it was, would doing so have set a precedent for Trump to take more extreme actions now?

Monday, January 07, 2019

The ACA Case, Off the Wall Arguments, and a Look Back at Shelby County

By Eric Segall

Most legal scholars, including Professor Jonathan Adler who attacked the Affordable Care Act ("ACA") with a vengeance on several occasions through what many of us considered less than persuasive legal challenges, as well as Mike, have opined that Texas Judge Reed O'Connor's attempt to kill the ACA for good is legally ridiculous and has little chance on appeal. In response, some legal realists (like myself) have suggested "not so fast," because one never knows what the Supreme Court is going to do in these kinds of high profile political cases.

Over at Balkinazation, Professor Jack Balkin applied his thoughtful "on-the-wall"/"off-the wall" legal theory to Judge O'Connor's absurd view that when the 2017 Congress reduced the penalty (or tax) for not complying with the ACA's individual mandate to zero, what that Congress was really saying was it wanted some forum-shopped judge probably in Texas to strike down the entire law on the grounds of non-severability. This was all some secret Congress code of course since the 2017 Congress did not in fact repeal the ACA but kept it intact just without the mandate/tax.

Balkin rejects the idea that this legal conclusion has no chance of being affirmed for the following reasons:
Reasonableness in the law--which involves a host of professional, prudential and practical judgments beyond simple logic--is shaped by social influence, whether or not lawyers care to admit it.... [T]he perceived quality of legal reasoning and legal arguments are not exogenous from social influence. Indeed, judgments of legal quality and social influence mutually shape each other. This mutual influence is what allows legal arguments to move from off-the-wall to on-the-wall, as they have so many times before in American history. What moves arguments from off-the-wall to on-the-wall depends a great deal on who is willing to put their reputation and authority behind the arguments and stand up for them. If enough important and influential people say that a legal argument is not crazy but one on which reasonable minds can differ--or even the best legal argument, all things considered--then it becomes on-the-wall.
Balkin's analysis is smart and accurately reflects the rise of many legal arguments (such as the infamous broccoli argument accepted by five Justices in NFIB v. Sebelius).  I do want to suggest, however, that Balkin's analysis is under-inclusive in one important sense: sometimes an off-the-wall legal argument is adopted by the United States Supreme Court for no other reason than a Justice or the Court says so, and when that happens, the argument is not only on-the-wall, but becomes the law of the land, no matter how legally crazy it happens to be.

Friday, January 04, 2019

Elizabeth Warren, Hillary Clinton, and Democratic Voters' "Palmore Problem"

by Michael C. Dorf

Elizabeth Warren should be a formidable candidate for the Democratic nomination for president in 2020. As noted in a recent article, she is ideologically left/center-left, which is just about smack in the middle of the Democratic primary electorate. Moreover, she has a message and policy track record that should make her an attractive general election candidate who could win back enough of the Rust Belt voters who went for Trump in 2016 to (re)turn Pennsylvania, Ohio, Michigan, and Wisconsin blue. Given her successful championing of the Consumer Financial Protection Bureau, Warren could run as a genuine progressive populist while accurately painting Trump's purported populism as a thin veneer over standard-issue Republican stroke-the-rich policies.

That is not to say that Warren is a perfect candidate. She lacks foreign policy depth (although she undoubtedly understands much more about the world than Trump does); she risks following in the footsteps of each of the last three major-party nominees from Massachusetts (Dukakis, Kerry, and Romney), who all lost after running lackluster campaigns that failed to make an emotional connection with voters; and she badly mishandled Trump's "Pocahontas" attack with her DNA test stunt.

But no candidate is perfect, and Warren's mix of pluses and minuses ought to put her at or near the top of the Democratic field--at least on paper. And yet, analysts are already downgrading her prospects on the ground that she is not sufficiently "likable." At first blush, the claim seems absurd. Donald Trump is one of the least likable people ever to hold public office. How can likability matter? "Not likable" appears to be code for "a powerful woman." A recent Politico story discusses comparisons of Warren and Hillary Clinton. It includes a photo of the two women side by side. The caption states: "Like former Secretary of State Hillary Clinton, gendered terms like 'shrill' or 'scoldy' are already ascribed to Sen. Elizabeth Warren, as people dismiss her as a viable 2020 contender."

And thus we come to a question for Democratic primary voters (or, more immediately, for Democratic activists trying to decide whom to support in the pre-primary process): If you otherwise would support Warren for the nomination but think that sexism would undercut her prospects in the general election, should you support a different candidate instead, or would doing so implicate you in the very sexism you decry in prospective general election voters?

I refer to the foregoing question as the "Palmore problem" in light of a unanimous 1984 SCOTUS case, Palmore v. Sidoti, in which the Court invalidated a trial court judge's custody decision on equal protection grounds. A white child's white mother remarried an African American man, prompting the child's father to petition for custody. The trial court granted the petition on the ground that the child would encounter prejudice living in a mixed-race household. The SCOTUS reversed that ruling even though there was no evidence that the trial judge shared the racial prejudice of the people who would discriminate against the child. Taking account of that prejudice implicitly and impermissibly gave it the force of law. CJ Burger wrote: "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."

Assuming one thinks the Palmore principle is sound (and I do), should it apply in deciding whom to vote for?

Thursday, January 03, 2019

It's Good to See You Go, Paul Ryan. Please Stay Away

by Neil H. Buchanan

There are plenty of frauds in public life, people who somehow manage to sell their imagined seriousness to gullible reporters and pundits, all the while being little more than empty suits.  But in a profession with empty haberdashery everywhere one looks, Paul Ryan was the shiniest, emptiest suit of them all.

And today, for the first time since 1999, Congress is convening without Ryan as one of its members, while Nancy Pelosi will retake the gavel that he so badly mishandled for a bit more than three disastrous years as Speaker of the House.  We should all breathe a big sigh of relief.

I wrote a column about Ryan's retirement announcement last April.  Everyone by that point had figured out that Ryan's brand of ugliness was no match for Donald Trump's.  The weaker man would have to go, and he did.  But Ryan did stick around through the end of the most recent Congress, doing essentially nothing while watching his party be sent back into the minority in the House.  He even gave himself a party to celebrate his supposed legacy when the bitter end arrived.

Is there more to say?  Of course there is, and it mostly has to do with the odd reality that Ryan left office still being given the benefit of the doubt by mainstream journalists.  Even after being completely exposed as a fraud, he might live to fight another day.  How can that happen?

Wednesday, January 02, 2019

Seeing Facts in a New Frame

by Sherry F. Colb

In my Verdict column this week, I discuss a program for rape prevention that challenges assumptions on both sides of the political spectrum. The left, on the whole, tends to assume that if we teach men how to read consent (and non-consent) in women, and if we teach men not to rape women, then fewer men will rape women. The right, by contrast, regards rape as a nearly inevitable consequence of the mismatch between male and female sexual desire coupled with men's inability to control themselves once they become aroused. Both ideologies appear to have led us astray due to flawed factual assumptions. In this post, I want to suggest that seeing facts differently can help us in related areas as well.

In the context of date rape, many of us have been focused on men as a group, attempting to educate the group in how to correctly understand and respect the wishes of women. We believed that date rape results from confusion about non-consent, and the solution to confusion is to educate the confused. Though we took this position on date rape, and though we recognized that date rape is "real rape" and just as traumatic as stranger assaults, I cannot imagine that we would have taken a similar position on the causes of stranger rape. Has anyone designed a curriculum for boys or men in which the instructor tells the students that they must refrain from grabbing strangers in dark alleys and compelling those strangers to have sex with them? By thinking of acquaintance rape as truly resembling stranger rape--rather than as inherent in maleness or in a failure of communication--we can actually help women protect themselves effectively from a crime that has for decades resisted efforts at reduction, as I discuss in my column.

In this post, I want to talk about a different (though related) sort of practice that has resisted change. Think of the "casting couch" and Harvey Weinstein. Seemingly everyone in the business knew about Weinstein's depredations, but they continued unabated. Then victims began to speak publicly about it, and dominoes started to fall. Producing films had previously meant sexual access to movie stars, but perhaps that reality would now change more broadly. What many had understood to be a producer's "perk" of sorts had evolved in the public consciousness into sexual harassment and sexual assault. Here I aim to discuss a different sort of problematic sexual conduct, of a type that people continue to regard as perfectly acceptable. Indeed, I am somewhat reluctant to even characterize the conduct in question as comparable to sexual harassment.

Tuesday, January 01, 2019

Naive, Stupid, Evil, Trump (A Dorf on Law Classic)

Note to readers: Today is the final day of the holiday hiatus on Dorf on Law.  To celebrate the beginning of 2019, I am re-posting a column that originally ran on June 13, 2017, which might help to put some of the recent Trumpian insanity into perspective.  Enjoy, and Happy New Year to all!

"Naive, Stupid, Evil, Trump"

by Neil H. Buchanan

Donald Trump is wrong almost all of the time about almost everything.  He lies constantly, and even though he is constantly being caught in his transparent lies, he never admits error, pressing ever forward on his destructive path.

Does he do this because he knows nothing about the world?  (That is, is he naive?)  Alternatively, maybe it is because he is incapable of logical thinking.  (Is he stupid?)  Or is it instead because he has horrible policy goals?  (Is he evil?)

All three of those explanations fit, and then some.  As Michael Dorf argued in a recent column, normal human beings can be "evil, stupid, or ignorant," but "Trump is not a normal human being. He is not even a normal but evil, stupid, or ignorant human being. Trump is Trump."

In order to understand how Trump is different, we first need to understand what it means to be normal yet wrong in one of those three ways -- naive, stupid, or evil.  Because those three categories should be sufficient to explain every bad decision, it is important to understand how Trump is a category unto himself.