Tuesday, February 18, 2020

How Does Political Argument Work When the President Does Whatever He Wants?

by Neil H. Buchanan

Donald Trump repeats himself quite often, and one of his favorite claims is that he has an "absolute right" to do whatever it is that he currently wants to do.  Most recently, for example, he claimed to have the absolute right to tell the Department of Justice what to do in the Roger Stone case (even though he denies having intervened).  He thinks that Article II of the Constitution means that "I have the right to do whatever I want as president," which would be funny if it were not so frightening.

This means that Trump is accelerating down the road to autocracy and that "Trump and his supporters are effectively arguing for an elective monarchy" -- although the "elective" part clearly only includes the presidential election of 2016, given that the Democrats' 2018 blowout win somehow did not reflect the people's will, in Trump's eyes.  Only some elections count, apparently.  Certainly, 2020 will only count for Trump is he is declared the winner -- and even then, if he ends up with another Electoral College win but loses the popular vote, he will surely declare those votes illegitimate (again).

Although Trump and his enablers continue to say that he can do anything he wants, however, they still sometimes attempt to say that what he is doing is no different from his predecessors' actions.  Barack Obama issued executive orders?  That must mean that Trump can issue as many executive orders as he wants, on whatever topic, based on any nonsensical legal theory that his attorney general can concoct.  Other presidents have pardoned people, or fired employees?  That must mean that there can be no limits to Trump's pardons and firings!

The old saying that "if you're explaining, you're losing" distilled the idea that American politics (and probably politics everywhere and at all times) is allergic to nuance.  I actually had to look up the substance of former Democratic presidential nominee John Kerry's infamous quote that he was "for it, until he was against it," even though I remembered his unfortunate wording almost verbatim.  It turns out that he was completely consistent and honest, having said that he voted for $87 billion in Iraq War funding when it would have been financed by reducing the Bush tax cuts but then voted against a final bill that stripped out that funding mechanism.  He was right, but he was pummeled nonetheless.

But if nuance was a tough sell before Trump, is it impossible now?  And if it is impossible, is that somehow liberating not just for Trump but for everyone?

Monday, February 17, 2020

For Presidents' Day, I Discuss a Lawsuit Against the Trump Administration But Not the President Himself

by Michael C. Dorf

George Washington was born on February 22, 1732, so naturally, today being February 17, we celebrate his birthday, as well as the birthdays of all Presidents. Or is it the Presidents themselves, rather than their birthdays, that we celebrate? And do we have to celebrate all of them? Andrew Jackson? Andrew Johnson? Richard Nixon? Donald Trump?

I like a good holiday as much as anyone else, so I'm celebrating by not writing a substantive blog post today. Instead, I direct readers to my latest Verdict column, in which I discuss the lawsuit filed by the NY State Attorney General against the Trump administration, seeking to block the new policy of denying all New Yorkers and only New Yorkers the opportunity to enroll in or renew expiring enrollments in the Trusted Traveler programs. I explain that the lawsuit makes good claims but that they could be strengthened a bit. (You're welcome, AG James!).

Happy Presidents Day (or should that be Presidents' Day with an apostrophe?).

Friday, February 14, 2020

Reassessing Judge Reinhardt

by Michael C. Dorf

Yesterday attorney Olivia Warren testified before a House Judiciary subcommittee about her experience being sexually harassed when she was a law clerk to Judge Stephen Reinhardt of the US Court of Appeals for the Ninth Circuit during the last year of Reinhardt's life. Because I was a Reinhardt clerk and have written in praise of his work and character, I feel some obligation to comment.

I am surprised and saddened to learn of what Ms. Warren endured, but I do not doubt her account. I say that because she has no reason to fabricate it and every incentive not to. Don't believe me? Ask Dr. Christine Blasey Ford (if you can find her) or Lt. Colonel Alexander Vindman what rewards come to those who speak truth to power.

Thursday, February 13, 2020

Why Are Trump and the Republicans Showing Even Minimal Restraint?

by Neil H. Buchanan

With Republicans defending or ignoring Donald Trump's post-impeachment outrages -- firing employees who responded to subpoenas and testified in House impeachment hearings, intervening in Justice Department sentencing recommendations for his corrupt pal Roger Stone, and so on -- there is no longer any serious prospect of his party trying to limit (or even condemn) Trump's shameless vindictiveness.

I continue to believe that the impeachment process -- though doomed to "fail" in the literal sense of not resulting in Trump's conviction and removal from office -- was a success and a necessity.  Had the Democrats not responded to the whistleblower's report last Fall, the guardrails would have been removed even more quickly.  We would be on the same path, but Trump would have had a four-month head start on his renewed campaign to prove himself a king.  (It is also worth remembering, however, that Alexander Vindman and others paid a high but honorable price for this delay.)

In a new Verdict column today, I move to new terrain in my discussion of Trump's lawlessness.  Having argued seemingly forever that Trump will refuse to leave office even upon losing the 2020 election, I now am starting to explore what the world will be like after we lose the last bit of our innocence when Republicans support an internal coup by Trump.  What will it be like to live in a world where Trump is effectively President for Life?

Wednesday, February 12, 2020

Maybe It Actually Is A Suicide Pact?

by Neil H. Buchanan

The assertion that "the Constitution is not a suicide pact" is famous enough to have its own Wikipedia page.  It is one of those famous turns of phrase that seems applicable to a surprising number of situations.  Professor Dorf and I are among the legions of scholars who have reproduced it in our writing.  Often wrongly attributed to Abraham Lincoln, the exact wording comes from a famed dissent by Justice Jackson.  (Note, however, that Lincoln did embrace the concept without coining the phrase.)

The basic idea is both powerful and disturbing, because it is the quintessential example of wisdom that is essential but also open to abuse.  In former Judge Richard Posner's words, the concept evoked by the "not a suicide pact" meme should be "understood not as law but as the trumping of law by necessity."  (Note that he published those words in 2006, back when the verb "to trump" carried no irony or political weight.)  It is, at its very core, lawlessness in the name of something more important.

The hive mind at Wikipedia traces the idea back to the Founders, with a nice quote from Thomas Jefferson, who justified having set aside his own constitutional beliefs to approve the Louisiana Purchase.  He wrote:
"A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means."
And now, the obvious question for any discussion in 2020: How does this apply to Donald Trump?

Tuesday, February 11, 2020

The Truly Subversive Message of Parasite

by Michael C. Dorf

Bong Joon Ho's Parasite made history on Sunday when it became the first foreign-language film to win an Oscar for Best Picture. Much of the coverage of the momentous award focused on Hollywood's race problem. The lead story in the NY Times was typical: "In honoring the film, which also won best director, original screenplay and international feature, voters managed to . . . embrace the future — Hollywood’s overreliance on white stories told by white filmmakers may finally be ebbing . . . ."

Fair enough. The Academy and the industry in general need to do much more both to provide opportunities for and recognition to a more diverse group of writers, directors, actors, and others.

Yet in treating Parasite as simply a foreign film with an Asian director and cast, the news coverage overlooks what makes the film truly remarkable. Here I'll offer a few thoughts on the deeply subversive nature of the story Parasite tells. I'll refer to the plot in a way that, I hope, does not contain any spoilers that would, well, spoil, the film for those readers who have not yet seen it.

Monday, February 10, 2020

The Enablers of American Evil: The Rush Limbaugh Story

By Eric Segall

Donald Trump's long history of racism and sexism, predating his Presidency, is well-documented. His use of the Central Park Five to stoke fear in New Yorkers, his racist landlord practices, and his lewd and insulting statements about how women look have for decades reflected his bigoted heart and dark character. Similarly, Rush Limbaugh's country-altering pattern of sexist, racist, anti-LGBTQ rants, quips, and jokes reflect the worst of our people over many decades. As the Washington Post recently reported:
In some ways then, it was appropriate for a president known for fueling outrage, degrading opponents with insulting nicknames and putting on a show to award Limbaugh the Medal of Freedom. As Republicans gave him a standing ovation, Democrats sat in stony silence, appalled that someone who fueled bigotry and an incendiary media culture was receiving such an honor. The spectacle was the perfect embodiment of Limbaugh’s career and the politics, media — and president — he helped create.
But this post is not about these two privileged, elitist, white hypocrites who claim to be working for the working class but in reality travel by private jet between luxury condos and mansions, living the lives of the rich, famous, and powerful. This post is about the enablers. And we can start with the national media.

Friday, February 07, 2020

Even Atheists Should Be Upset With Trump for Ruining Religion

by Neil H. Buchanan

I will give Donald Trump credit for being able to find new lows.  (Perhaps "credit" is not the right word here, but readers are free to substitute something more fitting.)  During the 2016 campaign, as he was being accused of having no sense of humor (or even humanity), he went to the Al Smith Dinner in New York City -- a 71-year tradition where political differences are set aside for a night of self-deprecating humor -- and, per NPR's headline writers, turned a "Friendly Roast Into [a] 3-Alarm Fire."

Now, with three and a half years of added arrogance and the unbridled rage of an adolescent having been scolded ("This impeachment thing is soooo unfair, geez!!"), the blasphemous libertine decided to reward the religious leaders who have blindly backed him (Gotta have those anti-Roe judges!) by defiling the annual national prayer breakfast.  Having ruined comedy, why not ruin solemnity, too?

Thursday, February 06, 2020

On the Value of Seeing the True Colors of Senate Republicans, and a Comment on Dershowitz's Bizarrely Post-Modern Non-Argument

Note to ReadersDorf on Law was founded and has been providing daily commentary since 2006.  We have always appreciated the high quality of our readers' comments as well as the rarity of any outbreaks of acrimony among commenters.  One reason for this truly unusual and happy state of affairs -- in a format that, based on what one can see at virtually every other blog, seems to bring out the worst in commenters -- is that the regular commenters on this blog have consistently set such a nice tone.  Professor Dorf and I have met only one or two of those commenters in person, but we still feel that we have come to know a few of those whom we have not met as friendly correspondents.

Sadly, we received news last week that one of our most diligent and delightful commenters (who was particularly good at pointedly engaging with the occasional troll, without escalating into nastiness), who went by the online handle Shag from Brookline, passed away this past November at the age of 89.  Shag would often comment on his age (in a light-hearted way), so when he stopped showing up on the comments board a few months ago, we suspected that his time on earth had come to an end.  His hometown newspaper, the Brookline TAB, wrote a short obituary that noted that Shag (whose in-real-life name was Arshag "Archie" Mazmanian) was a community leader, a lawyer, and a "longtime Brookline TAB letter writer."  So we at Dorf on Law were not the only ones to benefit from Shag's active pen!

We miss Shag from Brookline, and we are confident that he rests in peace.


by Neil H. Buchanan

The Senate's sham trial of the charges of Abuse of Power and Obstruction of Congress has resulted in the expected Republican whitewash (with Mitt Romney the lone outstanding and honorable exception) of Donald Trump's high crimes and misdemeanors.

Although there is now some chatter that the Democrats should not have brought a case to a tribunal that was known to be in the tank for the defendant, I continue to believe that it would have been even worse to have done nothing after we learned of Trump's "drug deal" to get a financially-dependent and militarily threatened ally to participate in a political hit job aimed at Joe Biden.

Wednesday, February 05, 2020

Legislative Purpose for Discerning Meaning Versus for Invalidation

by Michael C. Dorf

My latest Verdict column discusses one potentially important aspect of Espinoza v. Montana Dep’t of Revenue, which was recently argued in the Supreme Court. Montana is one of many states with a constitutional provision forbidding aid to private religious schools. Accordingly, the Montana Supreme Court struck down a state statute that provided tax credits facilitating such aid. The statute it invalidated provided aid to secular as well as religious schools. Had the Montana Supreme Court invalidated the statute only as applied to religious schools, it would have likely violated the US Constitution's First Amendment, as construed by the Supreme Court in its application to the States via the Fourteenth Amendment--because SCOTUS precedents forbid states from excluding religious schools from otherwise neutral aid programs.

For what it's worth, I disagree with those SCOTUS precedents. I think states should have greater freedom than the Court allows them to apply strict principles of separation of church and state as a matter of state constitutional law. I would allow for what the Court has sometimes called "play in the joints" between Free Exercise and Establishment. But that's not my current concern with respect to Espinoza.

Espinoza presents at least two questions about illicit intent. One question is whether the Montana constitutional provision--which can be traced to anti-Catholic bias in the 19th Century--is currently valid, even assuming that it no longer reflects and is not being applied with anti-Catholic bias. A second and related question is whether illicit intent matters if there is no disparate impact. The Montana Supreme Court struck down the entire statute on its face; as a consequence, although religious schools do not receive any benefit from the tax credit, neither do secular schools; the state argues that such "leveling down" is a well-accepted response to illicit discrimination, so that in the wake of the Montana Supreme Court's ruling, the plaintiffs have no remaining claim.

My column points to lingering tension in the case law between illicit intent tests and the acceptance of leveling down. Using an example I first developed in a 2008 blog post, I hypothesize that in a world without a fundamental right to marry, a state that abolished the institution of marriage rather than extend the right to same-sex couples would violate equal protection, because the social meaning of leveling down in this circumstance would be illicit heteronormativity. I do not attempt to provide a comprehensive resolution to the question of whether and when leveling down should be permitted, content to surface the tension.

Here I want to add a thought about legislative purpose in a different context--that of discerning legislative meaning.

Tuesday, February 04, 2020

The Case for Sanders (or Warren)

by Michael C. Dorf

As we wait for the Iowa Democratic Party to release the results of yesterday's caucuses, it is worth recalling that, whatever those results, nearly all of the Democratic delegates remain to be chosen. Even folks like me who don't vote until the New York primary on April 28 could still end up playing a role in selecting the party's nominee.

Suppose you are the sort of voter whose top priority is selecting a candidate with the best chance of defeating Donald Trump in November. You might think that you have no good way to know who that is, so you'll simply vote for whichever candidate among those who have a shot at the nomination you think would make the best president. In making that kind of choice, you would want to consider both personal style--Who would be best in a crisis? At managing the executive branch? Etc.--and the significant differences of policy among the remaining candidates.

Policy differences would need to be discounted somewhat by the fact that many of the proposals of the various candidates would need to get through Congress, so the difference between, say, Medicare-for-all right away, Medicare-for-all phased in over a period of years, and a public option for all who want it could end up being mere differences in starting points for a negotiation, rather than ultimate differences. Still, where a candidate starts probably has some correlation with where she or he ends up.

But policy differences also may be important with respect to electability. In this column, I'll explain why I think a candidate from the progressive lane (Sanders or Warren) has an electability advantage over a candidate from the centrist lane (Biden, Buttigieg, or Klobuchar, or whatever menu survives the winnowing of the early-state contests), with a special caution at the end about Bloomberg.

Monday, February 03, 2020

The Least Bad (But Still Bad) Argument Offered Against Removing Trump

by Michael C. Dorf

Unless Donald Trump stands in the middle of Fifth Avenue and shoots someone in the next two days--and frankly, even if he does--we can expect his certain Senate "acquittal" on Wednesday. What does it portend? I don't think anyone can say with confidence.

The impeachment and non-removal of Bill Clinton did not harm his short-term popularity, but its long-term consequences were substantial. As a result of Clinton's conduct, Al Gore distanced himself from Clinton in the 2000 campaign; that distancing easily could account for the election being close enough for the Supreme Court to have given the presidency to George W. Bush. Then, in 2016, Hillary Clinton's association with Bill Clinton made her a highly flawed critic of Trump's misogyny. To be sure, one might think that the problem in both 2000 and 2016 was the reaction to Bill Clinton's underlying conduct rather than to the fact that Clinton was impeached-but-not-removed for that conduct. However, the stain of impeachment underscored the repugnance of the conduct.

Could the impeachment-but-non-removal of Trump have a similar impact in either the short or long term? Sure. In the short term, the 2020 Democratic candidate could run a campaign that emphasizes anti-corruption themes or tarring Trump with being soft on Russia as illustrated by his treatment of Ukraine. Or years down the road, should Ivanka or Donald Jr. run for office, the stain of impeachment could linger. But ultimately politics is like the weather; it's a chaotic system that cannot be predicted more than a few days in advance.

Accordingly, for now I'll focus on what just happened rather than on likely consequences. On Friday I tried to make sense of Alan Dershowitz's seeming claim that anything the president does is in the national interest and thus not impeachable. Today I want to consider what I consider the least bad argument that Trump's lawyers have offered against removal. Spoiler alert: Least bad was still bad.

Friday, January 31, 2020

Dershowitz's "L'état c'est Trump" is not as crazy as it sounds, but it doesn't benefit Trump

by Michael C. Dorf

On Wednesday, Alan Dershowitz told the US Senate that President Trump's conditioning of the release of congressionally appropriated aid to Ukraine on the announcement of an investigation into Hunter and Joe Biden was not impeachable conduct, even assuming such a quid pro quo were proven beyond a reasonable doubt. Why not? According to Prof Dershowitz, "every public official . . . believes that his election is in the public interest. [Thus,] if a President does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment."

That contention was derided by Congressional Democrats and much of the media, including Susan Glasser, whose New Yorker article was aptly titled "L’ÉTAT, C’EST TRUMP." For his part, Prof. Dershowitz insisted that critics who charged that under his approach a president could have his political rivals assassinated without committing an impeachable offense had misunderstood or deliberately mischaracterized him. Social media chaos ensued, with critics charging that Prof Dershowitz had indeed said that the President is above the law and was trying to walk it back.

I'm not at all interested in whether Prof Dershowitz changed his tune. Rather, I want to analyze the most plausible version of his claim. It appears in a series of tweets. The key one states: "A good motive does not justify criminal behavior. But a mixed motive should not turn perfectly legal conduct into an impeachable crime, as the [House] Manager[s’] theory would." That contention is not crazy. The problem is it has almost nothing to do with Trump's conduct.

Thursday, January 30, 2020

What is the Most Misleading Critique of the Wealth Tax Yet?

by Neil H. Buchanan

It is hardly surprising that the center-right and the far-right are fighting hard against wealth tax proposals.  This commitment to regressivity can arise from a naive/stupid/evil belief in trickle-down economics -- Whatever is good for rich people ends up being good for everyone else, trust us! -- or from a fundamental commitment to the indefensible idea that rich people should always be able to keep their stuff (which assumes that they accumulated that stuff without any help from a government that provided a stable legal system, educated workers, infrastructure, and so on).

Either way, there are people who are simply horrified at the idea of a government taxing the wealth of the super rich, and they have made many embarrassing arguments in service to that belief.  But which argument against the wealth tax is truly the worst?  I might have an answer.

Wednesday, January 29, 2020

When It is All Over Amend the Impeachment Clauses

By Eric Segall

The United States Constitution is one of the most difficult Constitutions in the world to amend. It takes supermajorities in both the Congress and the states to formally change the document. Yet, it has happened 27 times in our history, and it needs to happen again with regard to the impeachment procedures for the President of the United States.

Tuesday, January 28, 2020

Wealth Taxes Will Not Make the Political System Perfect, But So What?

by Neil H. Buchanan

Setting aside the fact that the U.S. political system is melting down as we speak, there remains an interesting set of policy proposals that the next president (if there ever is another president) might decide to address.  Among the most significant is the possibility of a wealth tax.  Unfortunately, for every good analysis of wealth taxes, there seem to be an endless number of fatuous, dishonest, or muddled responses.

Yesterday, Professor Dorf offered one of the good ones.  Using former New York City mayor Michael Bloomberg's unlimited political spending as a backdrop, Professor Dorf pointed out that Senators Elizabeth Warren and Bernie Sanders could find themselves benefiting from Bloomberg's bags of money during the general election even as they argue that such wealthy people should have their wealth taxed by the federal government.

Most interestingly, Professor Dorf argued that Warren is, if anything, underselling the effectiveness of her wealth tax proposal, making a political calculation that she can get voters to support her plan if she assures them that wealthy people will not actually feel the tax, because it is only "2 cents!"  Professor Dorf summarizes Warren's assurances regarding the wealthy thus: "they can afford it; they'll still be fabulously wealthy."  Which is true, both in terms of the impact of the tax (the Warren wealth tax would indeed leave the fabulously wealthy fabulously wealthy) and Warren's selling of it.

This is rather different, to say the least, from the plutocrats' nightmare of pitchfork-wielding populists screaming "Billionaires should not exist!" and tossing the wealthy into the streets.  My guess is that they have all memorized the scene from "Dr. Zhivago" in which the aristocratic protagonist in Leninist Russia finds his mansion filled with ungrateful proles and shouts, "Whose house is this, anyway?"  (Their response: "Ours!!")

As it happens, I attended a conference the other day in which three economists and a law professor discussed wealth taxation, which had already inspired me to write about some of the issues that Professor Dorf teed up in yesterday's column.  (Side note: As is often my practice when criticizing arguments, I am not naming or linking to the economists in question or identifying where they spoke.  The point is not to attack a person but to discuss her or his reasoning and motivations.)

Surprisingly, the economists' biggest error was not in their misunderstanding of legal issues but in their failure to apply even their own standard tools to understanding how a wealth tax works.  When it comes to attacking wealth taxes, it seems that some economists are willing to stop "thinking like an economist" in the pursuit of excuses not to tax the rich.

Monday, January 27, 2020

Mike Bloomberg, the Billionaire Loophole, Unilateral Disarmament, and a Wealth Tax

by Michael C. Dorf

A recent NY Times story bears the headline Seeing a Bloomberg Ad on Fox News, Trump Takes the Bait. The headline and the story bury the lede. The story focuses on Trump's characteristic lack of self-control. Despite advice to ignore Bloomberg, Trump has been rage-tweeting about the man he dubs "mini-Mike" in response to ads critical of Trump and in support of Bloomberg's candidacy for the Democratic presidential nomination. But the fact that criticism irks Trump enough to provoke a fit of pique is not news.

The real reveal in the story is this: Bloomberg is providing a potentially very helpful service by running ads attacking Trump on traditional and social media. That spending is unlikely to result in Bloomberg's securing the nomination. Fivethirtyeight.com currently gives him and all of the non-top-four candidates a combined 0.5% chance of winning the nomination. To be sure, the Fivethirtyeight model does not appear to take account of Bloomberg's deep pockets; as far as I can tell, it scores fundraising chiefly as a proxy for popular support, not for what money can do. And betting markets have Bloomberg doing considerably better, with a 10-15% chance of securing the nomination. I tend to think that's a bit high. Perhaps it reflects the fact that the sorts of people who bet on politics are more likely to be sympathetic to Bloomberg -- and thus to overestimate his appeal in the Democratic primary electorate -- than are most Democratic primary voters themselves.

In any event, whether Bloomberg's chances of securing the nomination are minuscule or merely small, his anti-Trump spending is a boon, especially if, as he has suggested, he continues to spend hundreds of millions on the Democratic nominee even if he is not that nominee. But that raises a question for the likes of Bernie Sanders and Elizabeth Warren, should either of them be the nominee: given their hostility to the influence of money in politics, can they in good conscience accept Bloomberg's support?

Friday, January 24, 2020

Pragmatism and Centrism are Not the Same Thing

by Neil H. Buchanan

The American public is faced with the reality that the Democrats' very flawed nominating process will spit forth a nominee who might or might not be the most "electable" candidate, whatever that means.

Mostly, I think, people simply want to fast-forward through the process and find out whether Donald Trump and the Republicans will succeed in smearing and so completely slandering the Democratic nominee that Trump (who is disliked by a clear majority of the public, and shows no desire to change that) somehow wins.  Still, the more likely outcome is a Democratic win followed by a succession crisis.  No one likes those two paths, but no other path seems imaginable.

Because I have long argued that any Democratic candidate would beat Trump convincingly (running in anything even remotely resembling a fair electoral process, including what we had in 2016 but might no longer have, because of ever more intense voter suppression), I ought to not care about the nominating process.  That the field will be narrowed (and to a large degree has already been narrowed) by the oldest, whitest voters available is a travesty.  But it will be not only necessary but easy to rally behind any nominee, because the alternative is in multiple ways so uniquely dangerous.

Rather than focusing on the outcome (and, to be clear, I have endorsed Elizabeth Warren), I am finding it more interesting -- perversely interesting, but still interesting -- to watch the debate within the non-Fox media play out about the Democratic candidates, because so much of that debate is truly weird in its insistent lack of logic and disengagement with reality.  Today, I want to focus on the ways in which that discussion uses coded language to push the result toward the most conservative outcome possible.

Thursday, January 23, 2020

What Is It About Government Spending that Freaks Out Otherwise Rational People?

by Neil H. Buchanan

Once the Republicans revealed themselves as being completely disingenuous in their teeth-gnashing about budget deficits, one might have hoped that the discussion of federal budget issues would become at least a little bit more sensible.  After all, not only does neither party currently seem to have a policy interest that hangs on deficit fear-mongering, but the Republicans' credibility on these issues is now completely shot.  Deficit hysteria should be a thing of the past, right?

Good luck with that.  There is a bottomless (cess)pool of people who are willing to make anti-deficit comments, helped along by two things.  First, the nonstop anti-deficit rhetoric of the last several decades makes every politician think that the safe, uncontroversial thing to do in every situation is to inveigh against the evils of federal borrowing.  Second, there is always at least a short-term advantage in pointing out that something your opponent is doing contributes to budget deficits.

After all, every politician is in favor of some spending and has supported some tax cuts, so all anyone needs to do to attack a politician is to say: "Senator X just told us that we need to spend a billion dollars on Project A.  A billion dollars -- with a 'b' -- which will go straight into the huge federal deficit.  What is he thinking about the burden that we are placing on the backs of our children and grandchildren?"  Whenever one happens to be in a debate where the anti-deficit gambit is available, few people can resist the gravitational pull of the conventional wisdom.

Although that temptation is often irresistible, the net effect is in the long-run interest of conservatives, because (as Professor Dorf, among others, has pointed out) the conservative project is ultimately designed to roll back the New Deal and the Great Society.  Succeeding in baiting their opponents into accusing conservatives of hypocrisy -- "Oh, look, Ronald Reagan increased deficits, so he was irresponsible, right?" -- merely reinforces the conventional wisdom.  The near-universal move to condemn the Trump/Republican hyper-regressive 2017 tax bill by screaming about deficits follows this playbook perfectly.  When Republicans again find it convenient to become fiscal conservatives, this will help them.

That would be bad enough, given how many things we could and should be doing by borrowing and smartly spending money at the federal (and state and local, for that matter) levels. But it gets even worse.  Today, I want to take the next step, moving from the conventional (and completely incorrect) wisdom about deficits to the conventional (and even more damagingly incorrect) wisdom that holds that government spending itself is per se bad.

Wednesday, January 22, 2020

Does ERA Ratification Trigger the Expressio Unius Canon?

by Michael C. Dorf

Yesterday I argued that the ratification of the Equal Rights Amendment (ERA) probably will not make a difference to constitutional law, because the Supreme Court already construes the Fifth and Fourteenth Amendment to forbid the federal and state governments from denying equal treatment based on sex. There will continue to be questions about whether particular laws or policies deny equality, but that will be true whether or not the ERA is deemed validly adopted (a question I separately address in my latest Verdict column).

Accordingly, I concluded that the primary impact of saying that the ERA is (or is not) part of the Constitution is symbolic. Symbols matter, of course, and insofar as constitutional law eventually reflects social values, treating the ERA as valid law could eventually affect constitutional doctrine. But so could a great many other things.

Yet while the conclusion that the ERA is validly part of the Constitution will have no obvious doctrinal impact with respect to sex discrimination, it could affect how the courts treat discrimination based on other grounds.

Tuesday, January 21, 2020

Does it Matter Whether the ERA is Part of the Constitution?

by Michael C. Dorf

Last week Virginia became the 38th state to ratify the Equal Rights Amendment (ERA), but its action came four decades after the deadline Congress set for ratification and after four of those 38 states purported to rescind their ratifications. Is the ERA now valid as the 28th Amendment? And who decides?

I will address these and related questions in a new Verdict column tomorrow. (Starting at midnight, you'll be able to find the column here.) Although the column will acknowledge substantial uncertainty, I will conclude that such uncertainty should be resolved in favor of ratification. The Article V threshold for amendment is already extremely difficult to satisfy; additional hurdles (such as a deadline that is not in the text of a proposed amendment or the opportunity for rescission despite the failure of the constitutional text to provide one) should not be added.

My argument in the Verdict column will be essentially agnostic with respect to the content of the ERA. It turns on the text of Article V, Supreme Court case law, and normative considerations (rooted in the views of the framers) about how difficult it should be to amend the Constitution. In the interest of full disclosure, I should add that I favor the substance of the ERA.

Putting aside the question whether the ERA should be treated as validly ratified, in this blog post today I'll discuss what practical effect, in any, treating the ERA as part of the Constitution would have. The short answer is probably none. However, I should acknowledge that ERA ratification could have an important symbolic effect that has largely untraceable ripples throughout society. Simply put, support for deeming the ERA validly enacted as the 28th Amendment may be tantamount to support for sex equality (which is why I favor it normatively).

Moreover, ERA ratification could have some surprising practical legal consequences. In a follow-up blog post tomorrow, I shall sketch one such possibility--that ERA ratification could ultimately undercut constitutional protection against forms of discrimination that are not sex-based. For today, however, I want to explain the pretty strong prima facie argument that the ERA will have no practical effect.

Monday, January 20, 2020

Constitutional Change

By Eric Segall

Last week I attended an excellent conference at the University of Texas on "Constitution Making and Constitutional Change." Over 100 Law professors from over 20 countries attended, and I learned a lot about constitutionalism outside the United States. I’d like to thank Professor Richard Albert for putting together such a wonderful event.

For my part, I presented an abstract of a work in progress  with the thesis that if, like in the United States, judges are going  to play an important role in keeping a Constitution up to date, they should do so by placing their values and priors up front, not by hiding behind formalist legal doctrines that rarely generate the results in hard cases.

Friday, January 17, 2020

Does "Okay Boomer" Create a Hostile Work Environment Based on Age?

by Michael C. Dorf

During Wednesday's oral argument in Babb v. Wilkie, Chief Justice Roberts elicited laughter from the courtroom audience when he asked Roman Martinez, the lawyer for petitioner Noris Babb, whether one recitation of the phrase "okay Boomer" directed at an older person in the course of a weeks-long employment decision process would be actionable under the Age Discrimination in Employment Act (ADEA). There ensued a back-and-forth in which the Chief Justice sounded incredulous: "So calling somebody a 'boomer' and considering them for a position would be actionable?," he asked. Martinez did not directly answer the question, instead settling eventually on a reformulation of his core position in the case: "if the fact finder were to conclude that that statement . . . was one of the factors going into" the employment decision, then yes, he said, liability would follow.

At issue in Babb is whether a plaintiff alleging age discrimination under the federal sector provision of the ADEA must show that consideration of the plaintiff's age was a but-for cause of an adverse employment decision (as the Solicitor General argues), or whether it suffices for the plaintiff to show that age was a "motivating factor," as Babb's attorneys argue, drawing on a test taken from the Title VII context. The underlying statutory and case-law context is complex. The outcome in the case may turn on how the specific statutory language on which Babb relies--"free from any discrimination based on age"--interacts with the constitutional requirement of equal protection, other anti-discrimination provisions Congress has enacted, and the case law construing them. Readers looking for a good summary may wish to consult this explainer by attorney Dan Kohrman. Although Kohrman works for AARP, on whose behalf he submitted an amicus brief in support of petitioner Babb, the explainer is fairly neutral.

I won't directly address the merits of Babb. Instead, I want to linger over the Chief Justice's question and the unspoken premise that he and those in the audience who laughed at his "okay Boomer" line share.

Thursday, January 16, 2020

What Effect Do the Non-Debates Have on a Political System that is Near Death?

Note to readers: My new Verdict column, "The Intra-Party Fight Among the Democratic Candidates Is Necessary and Healthy," was published this morning.  My column here addresses a related but separate set of issues regarding the Democratic presidential nominating process.


Neil H. Buchanan

Apparently, at least to read some of the pundits on the op-ed page of The New York Times, "the women" either won the most recent Democratic non-debate or at least had some good moments.  Times columnist Frank Bruni, who has carved out a career as that newspaper's almost deliberately uninteresting liberalish lightweight, titled his column "Warren and Klobuchar Teach the Boys a Lesson."  Gail Collins, who is decidedly more interesting than Bruni (when not making offensively lighthearted jokes about Mitt Romney's former family dog), wrote about "Some Wins for the Women."

As a feminist (although I concede that not all versions of feminism consider it possible for men to be feminists at all), this ought to be good news to me.  And it is, I guess.  No matter how low my opinion is of any particular source, those two authors have large readerships, and it is good that this is apparently where we were led by the whole contrived blowup over whether Bernie Sanders said that a woman cannot be elected president or instead said/meant something more nuanced.  As someone who has endorsed Elizabeth Warren for president, I take this as a pleasant surprise.

Why, then, do I so often wish that they would stop staging these events?  And is my reaction to the non-debates actually about the events themselves, or is there something more deeply dysfunctional about the whole politico-media complex at work?

Wednesday, January 15, 2020

Is an iPhone Backdoor Key Really More Dangerous than Other Sensitive Information?

by Michael C. Dorf

Nearly four years ago, the government sought to compel Apple to provide assistance in breaking the encryption of an iPhone. Apple resisted on legal and policy grounds. I analyzed Apple's legal argument at the time and concluded based on a SCOTUS precedent construing the All Writs Act that Apple would probably lose. I did not at the time address Apple's policy argument. I wrote:
Apple argues that orders such as this--that Apple "hack" one of its customers' phones--will, in the long run, do more harm than good. Apple and its various defenders across the tech and civil liberties world argue that a technology developed for the laudable purpose of breaking encryption on a terrorist's phone could leak into the hands of hackers and other bad actors (including other terrorists). In other words, Apple is not simply saying that privacy should prevail over security (although it is certainly saying that pretty loudly), but also that this sort of order would undermine security.
The 2016 impasse between Apple and the US government was obviated when the government cracked the security of the iPhone in question using the assistance of a third-party firm, but since then Apple has improved the iPhone's security, so the government is once again seeking Apple's aid. Apple has apparently provided iCloud backup material but once again resists creating a backdoor key for its phone on the ground that it could fall into the wrong hands.

When discussing the matter in 2016, I confessed that I did not have "a well-informed view about the merits of" the privacy policy question. I still don't, but that won't prevent me from offering a thought about the core risk here. The thought--which I'll briefly elaborate below--is that the risks posed by Apple's cooperation here do not differ in kind from other risks that sensitive information might be lost or stolen.

Tuesday, January 14, 2020

Possible Paths to Constitutional Redemption

by Neil H. Buchanan

For the past few years, I have been relentlessly -- some might say obsessively -- sounding the alarm about Donald Trump's threat to the rule of law.  Although many people agree (and how could they not?) that he has no respect for the Constitution or any other sources of law, there has been much more resistance to my prediction that Trump will refuse to accept the results of the 2020 election when he loses.  That refusal, to be clear, will take the form of Trump simply declaring himself the winner and Republicans agreeing with him and allowing the coup to happen.

Again, frequent readers of my columns know that I have returned to this theme many times.  (See, e.g., here.)  I have never denied that this is an extreme prediction, but sometimes the most awful outcome is also the most likely.  In any case, now having made that argument many times in many different ways, my resolution for 2020 is to try to describe how the future might play out given that Trump and the Republicans show ever decreasing signs of caring about anything other than his remaining in the White House.  What might happen to Democrats, public employees, schools, women, academia, the environment, racial and ethnic minorities, workers, and so on, in a post-constitutional world?

Those are the subjects of future columns.  But perhaps most importantly, it is useful to think about how we might eventually come back from this terrifying turn in American and world history.

A friend of mine recently suggested that the only hope for constitutional redemption would be for Trump to win (fairly) in 2020 and then succumb to ill health almost immediately thereafter.  Only then, she says, might there be a possibility of rebirth.  Below, I will explain my friend's highly plausible argument and then explain why I think that it does not quite get at the depth of the problem that Trump and the current Republican Party pose to the world.

Monday, January 13, 2020

Supreme Overreaching: The Justices Should Return Gun Control, Affirmative Action, and Abortion to the States

By Eric Segall

President Trump successfully made the Supreme Court an important election year issue in 2016, and he is likely to do so again in 2020. This strategy works because for a long time the Justices have improperly placed themselves in the middle of many of our most important political, social, and cultural disputes. But elections shouldn’t be about judges, and courts shouldn’t be this important. 

Friday, January 10, 2020

No, Impeachment Still Does Not Require a Predicate Crime

by Neil H. Buchanan

The impeachment of Donald Trump briefly receded from public discussion, but it is unsurprisingly returning to the spotlight as Mitch McConnell dances his way toward a sham trial and Nancy Pelosi tries to use her leverage to minimize the damage from McConnell's gyrations.

One argument that one would have thought was settled is the claim by Trump backers that the House's two articles of impeachment are illegitimate because they do not describe any crimes.  But, as Professor Dorf put it recently: "Republicans have argued and will continue to argue to the uninformed public that only statutory criminal acts warrant impeachment."

To be clear, when I say that this issue ought to have been deemed "settled," I do not imagine that it is something that Trump's cult would concede.  Just as they and their ideological compatriots in Australia manage to ignore all evidence and reasoning to continue to deny the reality of human-caused climate change, and just as they cling to conspiracy theories about Ukraine and Hunter Biden (as well as other conspiracy theories about Hillary Clinton, voter fraud, and on and on), Republicans are fully capable of repeating again and again "no crime" as if that were somehow relevant.

It is, however, surprising when credentialed academics join in that kind of madness.  Earlier this week, a professor at a top-ranked law school co-authored (with one of his third-year students) an essay on Verdict purporting to prove that in fact "Impeachment of the President Normally Requires a Crime."

As I will discuss below, I have a great deal of sympathy for people who make arguments to challenge a consensus view.   The line between consensus (a valuable meeting of minds) and conventional wisdom (closed-minded groupthink) can be blurry, and in any event, one of the things that academics most assuredly should feel free to do is to make unsettling arguments.

But they have to be good arguments.  Ahem.

Thursday, January 09, 2020

Writing Legal and Policy Analysis at an Insane Moment in History

by Neil H. Buchanan

Other than a Dorf on Law "classic" column that ran last Friday, this is my first column of 2020.  I certainly hope that everyone comes into the new year with happy memories from end-of-year celebrations and with confidence that the coming year will see marked improvements in the world.

On that latter point, however, I cannot muster much hope that things are even going to stay the same, much less improve.  And Donald Trump's insane and illegal warmongering and baiting of Iran to start the year -- notwithstanding the happy news that we apparently are not headed into the full-on war that seemed likely only a day or two ago -- certainly eliminated any thought that the world will seem less terrifying than it has since November 8, 2016.

What to do when each day seems certain to present us with terrifying news, and when the press's largely incompetent minute-by-minute coverage of an erratic president and his sycophantic party only serves to embolden them?  Earlier this week, Professor Dorf described his own decision to try to disengage a bit from the insanity of up-to-the-moment news coverage.  He did this not only as a needed mental health strategy but also to give him time to think and write about other topics.  I applaud him for that decision.

Can I do the same?

Wednesday, January 08, 2020

Trump is Awful, But the Suleimani Killing is not Distinctly Trumpian

by Michael C. Dorf

The coverage of Donald Trump's decision to kill Qassim Suleimani with a drone strike at the Baghdad airport without the consent of the Iraqi government has been mostly highly critical--and with good reason. Here's my "unrolled Twitter thread" from a few days ago, when, in the immediate wake of the killing, I questioned both the stated rationale for it and a couple of potential alternative ones. Questioning the stated rationale turns out to have been sound, because when asked yesterday what specific attacks Suleimani was planning, Secretary of State Mike Pompeo gave no answer. In President Trump's statement today, he recited Suleimani's past acts but did not refer to anything concrete in the works, much less explain how killing a general would stop an operation that was going to be carried out by others.

I also stand by my other criticisms of killing Suleimani as likely to be counterproductive to any rational conception of US strategic interests in the Middle East. To be sure, I can imagine a scenario in which it accidentally plays out for the better: perhaps the Iraqi government will follow through on its resolution to expel US troops and that will end up being a reason to bring them home; that would, to be sure, cede Iraq to Iran, but the costs of maintaining even a relatively small force in Iraq are very substantial, as the value they provide in fighting the remnants of ISIS and the added security and counterweight they provide relative to Iran must be balanced against their tendency to antagonize many Iraqis and others.

To be clear, I don't think that withdrawal of US troops in response to an Iraqi order or the Iranian ballistic missile shots would necessarily be a good outcome, as it would, among other things, betray the Kurds yet again, this time in Iraqi Kurdistan, but there is enough uncertainty and volatility to lead me to think that while Trump's decision was terrible, it could work out all right--much in the way that buying lottery tickets is a stupid investment, even though it will sometimes work out well.

To be clear about why the decision to kill Suleimani was bad, it's useful to note how the various press reports have portrayed it as extreme. They note that the military advisers who included killing Suleimani on a list of options given Trump were shocked that he selected it and that Presidents Bush and Obama as well as Israeli PM Netanyahu had all rejected killing Suleimani (who was not exactly hiding) as likely too inflammatory and, depending on the circumstances, potentially a violation of international law.

Yet if the killing of Suleimani was too extreme and risky for Bush, Obama, and Netanyahu, it does not follow that the drone strike was distinctly Trumpian. It was the sort of move that a distinct wing of the GOP--the neocons who brought us the Iraq War--has been seeking for years. Now-sainted John McCain was nominally joking when, in response to a question in 2007, he sang "bomb bomb Iran" to the tune of "Barbara Ann," but he spoke for a view within the GOP that has had and retains substantial support both inside and outside the Trump Administration.

Tuesday, January 07, 2020

A Nice Place to Live, But You Wouldn't Want to Visit

by Michael C. Dorf

Yesterday, U Penn Law Professor Tess Wilkinson-Ryan published a courageous essay in which she  describes her experience as a visiting professor at Stanford, Harvard, and NYU. She went to each school (for varying lengths of time) in the hope of landing a lateral offer, only to be rejected. The essay is courageous because it tells a personal story of failure. It is very valuable, because it exposes various dysfunctions of the visit-before-you-get-hired system, including the important ways in which it is gendered. Prof Wilkinson-Ryan explains both the obvious way--women tend to have more family obligations and partners who have more difficulty relocating for 4 to 8 months--and the less obvious way--the performance expectations for female faculty are different in a way that recalls the familiar double-bind women face in various workplaces: come on too strong and you're not sufficiently female; otherwise, be seen as not sufficiently rigorous and smart.

Accordingly, I highly recommend Prof Wilkinson-Ryan's essay. It speaks to a particular problem in legal academia and some other academic disciplines but also to a wide variety of human experience, both in the workplace and beyond. Here I want to add three complementary thoughts.

Monday, January 06, 2020

New Year's Resolution: Pay Less Attention to the Latest News

by Michael C. Dorf

Among my resolutions for 2020--both personally and professionally--is to pay less attention to the latest news, especially horse-racy political news. As a personal matter, such a resolution is probably a good idea for just about everyone who has felt drained by the seemingly never-ending escalation of outrages since 2016. Mental health professionals have been advising that we not exactly tune out but that we try to focus on what really matters. That strikes me as very sound advice, even if I often fail to follow it.

On the personal side, avoiding media (especially including social media) that fan the flames of outrage is a good idea but probably not sufficient to prevent mental exhaustion/depression/anxiety. Even relatively sedate shows like NPR's Politics Podcast encourage an obsession with political ephemera. I've been a listener since it launched. As a New Year's resolution, I'm going to skip it most of the time it shows up in my NPR One feed. That's a baby step, to be sure, but one that I hope to combine with other baby steps, like not reading Twitter or Facebook threads that focus on questions that are probably unanswerable in real time or that simply generate outrage for which there is no productive outlet.

Moving away from political ephemera is valuable in its own right, but it should also free up time and mental energy to focus on other, more rewarding and worthwhile matters. For me, that will mean reading more books and long-form scholarship, while reading fewer stories about politics, broadly defined, including some important news items that are not purely political.

Friday, January 03, 2020

Corporations and Speech (A *Dorf on Law* Classic, with a new preface)

By Michael C. Dorf

Preface: Below is another in our series of winter break reruns. I'll briefly introduce it by noting that as we begin a new decade (at least so far as naming goes it's now the 20s), I tried to think back on the last one. In a recent post, Prof Segall identified Citizens United v. FEC as one of the top five most important SCOTUS cases of the last decade. I agree. It also came very early in the decade. Accordingly, I thought this a good time to revisit it.

In the short essay below, I argued that the best objection to the case was not that afforded corporations free speech rights--which was already the position the law took. In other writing (such as this column first published on January 25, 2010), I would develop the idea (which was hardly mine alone) that the real sin of Citizens United was its far too narrow understanding of corruption. In retrospect, I don't think we can say that all or even most of our current political woes are the result of Citizens United alone; but it certainly exacerbated other dysfunctional elements of our political system. Okay, the rest comes from an essay originally published on January 21, 2010, a few hours after the ruling was handed down:

Thursday, January 02, 2020

Is the Rule of Law More Important Than Breathing? (A Dorf on Law Classic)

Note to readers: With the holiday break still upon us, I hereby offer another "classic" column -- OK, a rerun.  This column first ran on February 5, 2019, and it captures an important turn in my thinking about the relative importance of the various existential threats facing the world.  I cannot say "Enjoy!" without a huge dollop of irony.  I do, however, hope that it will be a useful re-read for those who saw it when it first ran and a thought-provoking piece for those who missed it.


by Neil H. Buchanan

Public debates frequently invoke -- in deeply somber tones meant to convey the utmost seriousness of purpose -- the interests of future generations.  "Our children and grandchildren" are the ultimate political prop, favored because they seem so vulnerable and deserving of our protection.

Despite my disparaging tone, I do not at all disagree that we should think about the interests of people in the future when we make public policies.  My cynicism is driven by the blatant dishonesty of so many people who use future generations to justify their agendas, the most obvious being conservative politicians who claim that "we must not pile debt on the backs" of the kids as an excuse for taking away funding for, say, education or early childhood health care.  (No, that is not a fanciful example.  I wish it were.)

There are, however, honest and selfless reasons to adjust our policies to enhance the interests of future generations -- not just the immediately succeeding generations whom we will know and with whom we must coexist at least for a time, but also for generations much further down the road.  Although the philosophical arguments supporting such a long-term obligation are surprisingly tentative (as I explained in a long law review article some years ago), at least in some policy contexts it is easy to motivate concerns for future generations.

The most obvious interest that all generations share, one would think, is to preserve the environment so that all people can live long and healthy lives.  What in the world was I thinking, then, when I wrote last week that "if push comes to shove, democracy and the rule of law must come" before environmental protection?  Can that possibly make sense?