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 it 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.

Friday, September 06, 2019

Universal Support for Universal Public Goods: Fighting Back Against the Democrats' Naysayers

by Neil H. Buchanan

Means-tested program participation.  Could any words bring more joy to the heart of a neoliberal policy wonk?  Sure, he will tell you, it is important to provide for the needy, but we must be prudent and make sure that every such program is targeted EFFICIENTLY.  Ergo: means-tested program participation.  Oh, the thrill!

Why this dollop of extra sarcasm to start the day?  The debate within the Democratic Party, which is sometimes described as Center-versus-Left or Establishment-versus-Insurgents, is in many ways ultimately a debate about neoliberalism's inherently incremental approach to everything.  More to the point, it highlights just how much the supposedly Reasonable Moderates buy into the logic of flinty conservative presumptions about how government should work.

To take but one example, Joe Biden was on "The Late Show with Stephen Colbert" two nights ago, and Colbert asked him if he favors Medicare for All.  Biden's response was almost like a nervous tic: "No, $30 trillion."  What did that mean?  Biden's big talking point about health care is simply to repeat the estimate that Bernie Sanders's program would cost $30 trillion over ten years.

That our current non-system will cost more than $50 trillion over that timeframe is apparently not worth mentioning, but in any case Biden immediately added that we need to incrementally fix the Affordable Care Act -- which itself was a neoliberal's incrementalist dream, with means-tested program participation all over the system -- maybe adding a public option (although I doubt that he would fight for that when the time came).

So the self-described realistic people are the ones who cannot even get the big picture right, choosing instead to reinforce the notion that "we'd have to raise taxes by $30 trillion" while ignoring how much more we would save.  That is what counts as leadership, I guess.  To be clear, I have no problem with someone saying that a political fight over Medicare for All is currently unwinnable, but it is dishonest and self-defeating to act as if Republicans are actually right when they are in fact merely exploiting voters' confusion to maintain the awful status quo.

What of means-tested program participation more generally? At the Democrats' first debate in July, another so-called reasonable candidate, Pete Buttigieg, responded to a question about plans to make college tuition free: "I just don’t believe it makes sense for working-class families to subsidize tuition for billionaires. The children of the wealthiest of Americans can pay at least a little bit of tuition."

Little people should not subsidize rich people.  How is that not the height of reasonableness?  Glad you asked.

Thursday, September 05, 2019

The Electoral College is Tainted, But so is the Rest of the Constitution, and America for that Matter

by Michael C. Dorf

In my latest Verdict column, I discuss a recent 10th Circuit opinion finding that the Electoral College protects so-called faithless electors--who vote in the Electoral College for a candidate other than the one to whom they were pledged--against post-appointment state interference. I describe the opinion as a plausible reading of Article II and the Twelfth Amendment but one that undervalues the democratizing trends of the last two centuries.

I also suggest in the column that while the opinion does not directly implicate National Popular Vote (NPV), an effort to circumvent the Electoral College, the 10th Circuit's combination of wooden formalism and reverence for the anti-democratic design of the Constitution could lead to invalidation or chilling of NPV. That's unfortunate, I argue, because the Electoral College is a suboptimal means of selecting a president. I favor its elimination or, failing that, its circumvention.

A fair number of Democratic politicians, including some presidential candidates, also favor electing the president by a national direct popular vote. They make three sorts of arguments: (1) The EC is less small-d democratic than national direct popular vote; (2) the EC advantages rural over urban and thus white over minority voters; and (3) the EC is a legacy of slavery. I agree with point (1), but (2) and (3) are dubious.

Wednesday, September 04, 2019

How Many Bullets Do You Need?

by Michael C. Dorf

(N.B.: My latest Verdict column discusses a recent Tenth Circuit ruling about so-called faithless electors, tracing a possible implication for a longstanding effort to circumvent the Electoral College. Today's blog post, however, is unrelated. It is also cross-posted on Take Care.)

Unless the Supreme Court dismisses New York State Rifle & Pistol Assoc Inc. v. City of New York as moot (as the respondents have urged), some time between now and the end of June 2020 the justices will decide their first major Second Amendment case in nearly a decade. Since the Court's landmark rulings in the Heller (2008) and McDonald (2010), the lower courts have allowed a wide range of prohibitions on firearm possession. The Supreme Court's refusal to review any of those decisions on its plenary docket--prior to the cert grant in NYS Rifle & Pistol--even led Justice Thomas, in a 2018 solo dissent from cert denial, to accuse his fellow justices of treating the Second Amendment as "a disfavored right."

I hope he's right about that. If not, maybe we will get a procedural reprieve. Perhaps the Court will dismiss as moot. If not, perhaps it will dismiss the writ as improvidently granted so that the lower courts can entertain arguments to the effect that Heller was wrongly decided based on evidence obtained by electronically searching 18th century documents, as proposed in an audacious brief and even more audacious motion for oral argument time by attorney Neal Goldfarb.

Tuesday, September 03, 2019

This Is No Time for NeverTrumpers to Coyly Threaten Not to Support Some Democrats

by Neil H. Buchanan

Let us say, for the sake of discussion, that you were perfectly happy with the Republican Party until well into the 2016 primary process, and you somehow convinced yourself that 16 of the 17 candidates in your party were a "deep bench" of presidential-level talent.  You would have voted for Ted Cruz, and you actually thought that the guy who turned out to be the weaker Bush brother was somehow impressive.  You turned away only when it became clear that a corrupt, vulgar, opportunistic liar whose only deep commitments were to racism and protectionism took over your party.

The protectionism part was easy, because so-called free trade has always been a supposedly conservative commitment.  (I say "so-called free trade" because there is no such thing as a rule-free trading system, but I digress.)  Saying that Donald Trump is not a true conservative or Republican on that basis makes perfect sense.  (The Big Government stuff, and especially the hysteria about budget deficits, are another matter entirely, being entirely situational for Republicans since long before 2016.)

The racism part?  Hmmm.  You, as someone who stood by your not-so-grand old party throughout its decades of race-baiting (the Southern Strategy, Reagan and "strapping young bucks" and "welfare queens," the first Bush's Willie Horton ugliness, and on and on), are not exactly in a position to claim to be horrified by the idea that your party would stoke and exploit white supremacist hatreds.

Still, maybe you genuinely believed that such bigoted pandering was a detestable but necessary path to power, and you were able at least to make yourself believe that your party did not actually want to act on that stuff.  It is true that you were fine when supposed "thought leader" Paul Ryan rose through the ranks pushing long-since-discredited drivel about dependency theory, which was an excuse to, among other things, specifically target nutrition programs for poor children for budget cuts.

But when Trump made the bigotry explicit, and you saw just how many in your party actually believed the things that you thought/hoped were merely strategic feints, you broke with your party and decided to oppose it in its current, mutated form.  Even better, you have remained steadfast even as other conservatives who once opposed Trump have gotten back on board.  Tax cuts and extremist judges are worth less to you than the rule of law and the preservation of constitutional democracy.

Congratulations, you have found that you have a level to which you will not stoop in pursuit of raw political power!  I do not mean that as (or only as) sarcastically as that sounds, because the essential underpinning of pluralist republican governing systems is a belief that there are some shared political values that are inviolable.  We might have hoped that people would have gotten here long before Trump came along, given Republicans' decades-long efforts to suppress voting and use extreme tactics to retain power.  (See esp. Bush v. Gore, but the list is long.)  Oh well.

Yet here we are, at long last, agreeing that some things are too basic to our shared fates to allow your former compatriots and their cult leader to destroy them.  What should you do now, knowing that you are going to end up supporting someone for president in 2020 whom you never would have considered supporting under any other circumstances?

Monday, September 02, 2019

Everybody Complains About the Weather; Let's Do Something About It

by Michael C. Dorf

For the eleventh consecutive year, on Saturday September 7 I shall participate in the annual AIDS Ride for Life, a 102-mile bike ride around Cayuga Lake to raise money for a wonderful local organization -- the Southern Tier AIDS Program, Inc. (STAP) -- that provides resources and services to people in my community dealing with or concerned about HIV/AIDS and related matters. (That's not intended as an ask for donations, but if you want to donate via my sponsorship page, of course I'd be grateful. Below, I shall make some asks for different causes.)

The ride proceeds rain or shine. In some years, the weather is ideal. In other years, it can be chilly in the morning, hot in the afternoon, intermittently wet, and/or windy. An entirely sensible person would check the weather forecast on the morning of the ride to see whether to bring rain gear, arm warmers, etc. I do that, but I am not entirely a sensible person, so I start checking the weather forecast for the day of the ride as soon as it shows up in the fourteen-day forecast. I do the same sort of thing for other events that can be affected by weather, such as upcoming trips, outdoor games, etc. This is not sensible behavior, because knowing the forecast fourteen, ten, or even five days in advance does not in any way affect what I'm going to do on the day of the event. The weather forecast more than two or three days in advance is, at least in my experience, so subject to change as to be virtually useless.

Uncertain weather forecasts are for me, as for most people most of the time, a source of mild anxiety and inconvenience. By contrast, and as everyone reading this essay is undoubtedly aware, the devastation caused by Hurricane Dorian in the Bahamas and the storm's imminent arrival somewhere in the southeastern United States underscore the deadly seriousness of the business of weather forecasting. Knowing that a hurricane is approaching days in advance can provide people with the opportunity to take appropriate precautions.