Friday, July 03, 2020

Happy (?) Independence Day

by Neil H. Buchanan

Today, Friday the 3rd of July, is designated "Independence Day observed" on my calendar.

We at Dorf on Law are hardly giddy optimists, but we do hope that next year's celebration of this country's declaration of independence will occur in a time with more reasons to feel confident about the future than we can see today.

In any event, we wish all of our readers health and happiness,

Thursday, July 02, 2020

Biden's Statues and Names Compromise is 2020's Version of Civil Unions

by Neil H. Buchanan

I never thought that I would see NASCAR ban the Confederate flag from its events.  Ever.  I could not imagine Mississippi getting rid of the that flag's inclusion in its state flag.  Ever.  I never thought that entire high school sports teams would take a knee during the national anthem, or Mitt Romney would join a civil rights march against systemic racism, or any number of other politicians would embrace the phrase "Black Lives Matter."  Ever.  Ever.  Ever.

Even so, we often see things happen suddenly that had once seemed unthinkable.  I have noted at various times, for example, that the public's attitude about cigarette smoking once seemed implacable: Smoking was viewed as an individual's right, goddammit!  But in very short order, not only did smoking become "uncool" but New York City's smoking ban -- even in bars and restaurants -- was adopted in cities across the country and the world.  Paris without people smoking arrogantly (and now merely being arrogant)?  Quelle horreur!!

Drunk driving went from cool to unacceptable in a few short years in the mid-1980's.  Marijuana is now legal and widely accepted in many states, with nary a Jeff Sessions to turn it into a culture war battle.  Bill Cosby is a pariah.  Harvey Weinstein is serving a 23-year prison sentence.  There are, of course, different reasons for each of these changes, but they all once seemed unthinkable.  Some are small and some are large.

In addition to the current debate about statues/flags and names, same-sex marriage is the other huge issue about which, when public attitudes suddenly and radically changed for the better, advocates happily said things like: "I thought that, if this ever happened, it certainly would not be in my lifetime."

Here, I first want to discuss the current reconsideration of Confederate and other racist iconography, offering some examples that I think are especially telling.  But my larger point, telegraphed in the title of the column, is that I think the position that Joe Biden and others have taken -- yes to ending idolatry of traitors, no to similar treatment of slave-owners and others -- is the equivalent of the creation of so-called civil unions during the years prior to the acceptance of same-sex marriage.

Wednesday, July 01, 2020

Some Puzzles in Espinoza v. Montana Dept of Revenue

by Michael C. Dorf

The big news in yesterday's SCOTUS ruling in Espinoza v. Montana Dep't of Revenue is that there is very little remaining "play in the joints" between the First Amendment's Free Exercise and Establishment Clauses. That's a quote from the two most recent previous Chief Justices: Chief Justice Burger writing for the Court in Walz v. Tax Comm'r (1970) and Chief Justice Rehnquist writing for the Court Locke v. Davey. Play in the joints is a federalism-friendly idea. It allows that some states have some discretion in deciding how to treat religion and religious institutions. The Free Exercise Clause limits the ability of states to act on hostility towards religion, while the Establishment Clause limits their ability to favor religion, but there is a range of permissible policies in between. Thus, in Locke, the Court allowed the State of Washington to provide scholarships to postsecondary students so long as they did not use them to study "devotional theology." Although the federal Establishment Clause would allow the money to be spent that way (because the students rather than the state would choose the course of study under a generally neutral program), Washington was allowed to take a somewhat stricter view of church/state separation without being deemed to run afoul of the federal Free Exercise Clause.

The majority opinion of Chief Justice Roberts in Espinoza nominally leaves Locke undisturbed, distinguishing rather than overruling it on two grounds: (1) Montana's exclusion of religious institutions from its scholarship program is based on their religious status rather than the use to which the funds would be put, as in Locke; and (2) a “historic and substantial” tradition of not funding the clergy that does not extend to not funding education at religious schools. Whether these distinctions and thus the play-in-the-joints principle itself survive in the long run remains to be seen. Justice Breyer writes in dissent that the Court renders the play-in-the-joints principle "a shadow of its former self." And elsewhere in his majority opinion, CJ Roberts notes that Justices Thomas and Gorsuch have questioned the status/use distinction (as they do again in concurrences in Espinoza) and suggests that in a future case the Court could eliminate it. If so, that would mean that point (1) would no longer distinguish Locke. And even if the Court would adhere to point (2), that would restrict the play-in-the-joints idea to the very narrow category of state decisions not to fund the clergy themselves, as opposed to a wide range of other funding decisions.

Accordingly, it is fair to read Espinoza as very substantially undercutting the freedom of action of states with respect to religion. In that respect, it's 5-4 against "states' rights," with the conservatives against and the liberals for. But the substantive holding is not the only aspect of Espinoza that has peculiar implications. 

Tuesday, June 30, 2020

SCOTUS Erred In Seila Law But Congress Should Require A Heightened Self-Dealing Risk Before Creating Independent Agencies

By Michael C. Dorf

In his majority opinion in Seila Law v. Consumer Financial Protection Bureau, CJ Roberts summarized prior precedents on the scope of Presidential removal power as recognizing "only two exceptions to the President’s unrestricted removal power.  . . . Congress [can] create expert agencies led by a group of principal officers removable by the President only for good cause [and] provide tenure protections to certain inferior officers with narrowly defined duties." The CFBP Director is an individual, not a group, so he doesn't fall within the first exception. And the CFBP has broad and far-reaching duties, so the Director doesn't fall within the second exception either. Thus, according to the majority, the restrictions on at-will Presidential removal of the Director are unconstitutional.

Justice Kagan's dissent is very persuasive. The Constitution's text contains no removal limit at all, and there is nothing in the Court's prior cases to suggest that Congress may not combine the two kinds of limits in the CJ's exceptions or, for that matter, that establishes any general rule of the sort the Chief Justice finds. Meanwhile, she derives from history a very different sort of limit, beginning in the earliest days of the Constitution. Justice Kagan writes:
Congress took the first steps— which would launch a tradition—of distinguishing financial regulators from diplomatic and military officers. The latter mainly helped the President carry out his own constitutional duties in foreign relations and war. The former chiefly carried out statutory duties, fulfilling functions Congress had assigned to their offices. In addressing the new Nation’s finances, Congress had begun to use its powers under the Necessary and Proper Clause to design effective administrative institutions. And that included taking steps to insulate certain officers from political influence.
The history Justice Kagan cites suffices to show why the majority is wrong. Outside the area of foreign and military affairs, the Constitution leaves to Congress the decision whether to insulate the holders of offices it creates from Presidential dismissal absent good cause. But to say that Congress has (or even ought to have) unreviewable authority in some area is not to say how Congress ought to exercise it. Congress has sometimes created independent agencies without a good policy justification for doing so. And while that oughtn't affect the constitutionality of those agencies, Congress's promiscuity in this area probably plays a psychologically causal role for some of the conservative Justices who favor a stricter constitutional approach.

Monday, June 29, 2020

Two Cheers for the Roberts Concurrence in the Judgment in June Medical

by Michael C. Dorf

Unsurprisingly and (mostly) appropriately, the big news in the SCOTUS decision in June Medical Services v. Russo is that, as the NY Times headline put the point, "Supreme Court Strikes Down Louisiana Abortion Restrictions." The fact that Chief Justice Roberts was willing to cast the fifth vote to invalidate any state abortion restrictions is a big deal. As I explain below, it hardly guarantees that he will in the end cast a fifth vote to retain abortion rights in the future, but at the very least it buys time. That is no small thing. Thus one cheer.

The Chief Justice should also be praised for not hiding behind procedural legerdemain. The dissenters say that there needs to be a full-dress trial in Louisiana while its law is in effect before a court can strike it down, notwithstanding the fact that it is identical to the Texas law struck down four years earlier by the SCOTUS in the Whole Woman's Health case. Yet that course would invite and reward defiance of SCOTUS precedent. The undue burden test of Planned Parenthood v. Casey and Whole Woman's Health is fact-sensitive, but construing it as so fact-sensitive as to require a full trial in every state would be a roadmap to overturning the abortion right in all but name.

So why do I withhold the third cheer for the Chief Justice? Two aspects of his opinion trouble me.

Friday, June 26, 2020

Is Living Constitutionalism our Law? A Response to Charles Barzun and Jack Balkin

By Eric Segall

Last Wednesday I had the great privilege of recording my first Supreme Myths Podcast/Video with Yale Law Professor Jack Balkin. Also last week, Professor Charles Barzun completed a three-part series on Balkinization on living constitutionalism and originalism. Both Balkin and Barzun share some common views about constitutional interpretation, judicial review, and the relationship between originalism and living constitutionalism that I will address in this post.

Thursday, June 25, 2020

Justice Alito's Opinion in Dep't of Homeland Security v. Thuraissigiam Reveals Why "Custody" in the Narrow Sense Should Not Be a Requirement for Habeas

by Michael C. Dorf

There is much that's wrong with Justice Alito's majority opinion for the Court in Dep't of Homeland Security v. Thuraissigiambut I want to begin by acknowledging that there's something basically right about Thuraissigiam: Justice Alito is right that the writ of habeas corpus is typically said to be available only as a means of challenging custody. The disagreement in Thuraissigiam concerns the question of what counts as a challenge to custody. I want to suggest here that the defects in Justice Alito's opinion illustrate a flaw in our familiar way of talking about habeas as a means of challenging unlawful detention. Habeas has long been and should be broader than that. It is a means of challenging substantial restraints on liberty, which include detention but also other kinds of government action.

Keeping the Troops in the Barracks

by Neil H. Buchanan

Every month, week, and day of the Trump Administration has been shocking and disorienting.  It has become a cliche to say that "this is a new low" and that maybe there is no bottom at all.  Even in that context, I believe that June 2020 is one of the most consequential months in American history, for better and for worse -- but mostly for better.

My new two-part series of columns on Verdict reflects upon the better-and-worse aspect of this month.  Part 1 was published yesterday: "Trump’s Upcoming Refusal to Leave Office: The Good News."  Part 2 landed on the virtual newsstands today: "Trump’s Upcoming Refusal to Leave Office: The Very Bad News."  Even though I note that the bad news is "very bad" but leave the good news unmodified, this has still been a good month overall, because until now there was almost no good news at all.  Relatively speaking, things are a lot better.

The reason that I am suddenly less pessimistic -- and in less guarded moments actually somewhat optimistic -- is that there has been a sudden willingness on the part of the political and media classes to stop minimizing Donald Trump's danger to the republic and the rule of law.  Even though Trump has been appropriately criticized and reviled throughout his presidency, people still acted as if the foundations of the country, including fair elections and the presumption that a losing incumbent would leave office peacefully, were not under sustained assault.

That has now changed.  And even though it is frightening to look at the world clearly, at least people are now looking and increasingly being willing to admit what they are seeing.

What is frightening?  Almost everything.  Here, I discuss one of the most extreme dangers facing the country, which is the possibility that Trump will use military and paramilitary violence to stay in office.  Yes, people are finally conceding that this is worth worrying about.  Finally.

Wednesday, June 24, 2020

Bolton, Comey, and Everyone Who Plays Cute on Biden versus Trump

by Neil H. Buchanan

I served on the law faculty of The George Washington University from 2007-19, and although I am delighted to have moved to my current position at the University of Florida Levin College of Law, my years at GW continue to exert some emotional pull.  I was thus delighted to see that 80 percent of my former colleagues signed a letter condemning GW Law alumnus William Barr for having "undermined the rule of law."  GW Law alum Kellyanne Conway is also a walking, talking repudiation of what law schools attempt to teach.

More than 20 percent of the GW law faculty is, based on my years of observation, unlikely to be big fans of the Democratic Party, which means that some of those who signed the letter were doing something that did not line up with their political priors.  I hasten to add that those signers who happen to be Democrats are hardly to be disregarded merely because they have other reasons to be repulsed by Donald Trump and to oppose Republican policies.  No matter what else one thinks about any related matters, Trump's existential threats to the rule of law should be strongly condemned by everyone.  Bravo, GW!

And this raises a broader issue, one that I have attacked from various angles over the past few years: Why do we continually see people acting as if supporting or not supporting Trump is a standard-issue political calculation?  Sure, they might say, there are some things about Trump that I dislike, but there are no perfect candidates.  I'm still deciding whether Hillary Clinton (in 2016) or Candidate's-name-here (in this year's primaries) or Joe Biden (now) has done what I require to earn my vote.

Enough!  I will use John Bolton's interview from last night's episode of "The Late Show with Stephen Colbert" to analyze the utter insanity of those who coyly claim that there is some principled basis on which they might not support Biden later this year.

Tuesday, June 23, 2020

Breaking the Courts

by Jed Stiglitz

Last week the Supreme Court rejected the Trump Administration’s effort to rescind DACA, the policy started under President Obama to provide deportation relief to immigrants who arrived as children. In a 5-4 decision with Chief Justice Roberts writing for the majority, the Court held that the rescission was arbitrary and capricious and therefore invalid under the APA. The case is a major victory for the over 700,000 DACA recipients who rely on the program. The case also creates a number of wrinkles in administrative law and presents important puzzles, one of which I want to focus on—why did we have this case at all? Observers including my host have suggested a number of responses to this puzzle, but they all fit comfortably within normal politics. I wish to suggest one outside of normal politics.

Monday, June 22, 2020

Trump's Hamfisted Firing of SDNY US Att'y Berman Mirrors His Attempted DACA Rescission

By Michael C. Dorf

Another weekend, another Saturday night massacre. Or so it seemed before Geoffrey Berman spared us a reprise of the Western schism in the late-14th-century papacy. Had Berman persisted, it would have been an interesting question whether the SDNY was Avignon and Washington was Rome or vice-versa. Or, if you prefer your historical analogies to be more local and (relatively) contemporary, think of the aftermath of the Dorr Rebellion that led to SCOTUS punting in Luther v. Borden in 1849. 

In any event, Audrey Strauss is now the Acting US Attorney in the SDNY. AG William Barr has stated that he expects her to continue in that capacity until the Senate confirms a presidential nominee, but I'm not reassured. By all accounts, Strauss is a highly regarded professional with integrity, which all but assures that she will incur the wrath of Donald, perhaps leading him to fire her too. 

Friday, June 19, 2020

Fainting Couches for Conservatives

by Neil H. Buchanan

Along with the lovely derisive terms that right-wingers hurl at their opponents -- snowflakes and libtards being only the tip of that iceberg -- is the idea that non-conservatives are merely pretending to be morally superior to conservatives.  A relatively recent snide term along these lines is "virtue signaling," by which aggrieved conservatives say that other people are not truly committed to the ideals that they tout but are merely gaining social status by showing other liberals how upright they are.

The problem is that so-called virtue signaling is rampant on the right, making them rank hypocrites.  It is worth taking a moment to see how this works, because it is a technique of distraction that non-conservatives have failed to confront with any effectiveness.

Thursday, June 18, 2020

Understanding Privilege, Or At Least Trying To

by Neil H. Buchanan

It is a testament to the depth of the wounds of systemic racism in America that the protests sparked by the police murder of George Floyd have continued with such intensity for so long.  Especially during a public health disaster, it takes a lot to get people to sustain this kind of action and passion.  But with literally centuries of injustice unaddressed, it apparently took that final spark to start a conflagration.

That is both tragic and hopeful.  The centuries of tragedy, of murder upon murder upon oppression upon oppression, are shameful to contemplate, especially because so many people knew about it but could not get everyone else to focus on such chronic injustice.  The hope now is that this is, at long last, the moment when things start to change in fundamental ways.

In a column last week, I argued that this change should involve "leveling up," meaning that giving people equal protection means moving currently disadvantaged people up to the best levels of treatment that society already offers its most fortunate citizens.  We could level down by creating a terroristic police state that trains its guns and violence against everyone regardless of race or class, but although that would be equal treatment, it would not be justice.

Here, I want to continue my discussion of what it means already to be at the top level of social status in the sense of how the system treats people.  That is, if we succeed in leveling up, what will the currently disadvantaged people be able to enjoy?

As it turns out, however, even that would not be enough -- as important and essential as it is.  Even the people like me at the top level know that random police violence could possibly be visited upon us under certain circumstances.  After, or while, we level up, we need to raise the bar and change the way the law enforcement system treats everyone.  What would that look like?

Wednesday, June 17, 2020

American Racism as an American Institution

By Eric Segall

The last few weeks have placed a spotlight on American racism in a way that holds some promise for real reforms and movement towards greater equality among and between whites and people of color. But true progress will never be made unless Americans fully accept that institutional racism is not some distant memory or remnant of a bygone era but is still very much with us today. We are a still a racist country, full stop. We must own our past and our present in order to move towards a less racist future.

The United States of America was built in large part on the foundation of institutional racism. Our Constitution continued the practice of slavery for three quarters of a century after ratification. It took a civil war to formally end our original sin of white people treating black people as their personal property.

From the mid-19th century to approximately 1964, much of our country engaged in racial apartheid, providing people of color grossly unequal access to government facilities such as public schools, hospitals, and parks, and allowing private businesses such as hotels, restaurants, and theaters to exclude people based on the color of their skin. When I was six years old, a hotel located two blocks from my current law school went all the way to the Supreme Court of the United States to argue that it had the right to exclude black guests.

Tuesday, June 16, 2020

Does Justice Gorsuch's Magnificent Opinion in the Title VII Sexual Orientation and Gender Identity Cases Redeem Textualism?

by Michael C. Dorf

I'll start with the most important point: Justice Gorsuch's opinion for the Supreme Court in Bostock v. Clayton County marks a historic victory for LGBT Americans, for civil rights more broadly, and for the rule of law. It rightly joins the canon of landmark gay rights opinions written by Justice Kennedy, for whom both Justice Gorsuch and I clerked many years ago (in different Terms). Indeed, this decision is the first majority opinion in a case vindicating LGBT rights written by any Justice other than Kennedy.

What's more--and I say this with the greatest respect and admiration for my one-time boss--in sheer craftsmanship and with the possible exception of Obergefell v. Hodges (about which more momentarily), Bostock is the best of the bunch. It lacks Justice Kennedy's allergy to the conventional doctrinal categories. In Romer v. Evans, Justice Kennedy did not exactly reconcile what has come to be known as "rational basis scrutiny with bite" with the balance of equal protection case law. In Lawrence v. Texas, he failed to say whether same-sex sexual intimacy is a "fundamental right." There were ways of explaining and justifying what Kennedy wrote, of course. Prof Akhil Amar admirably explained Romer; Prof Laurence Tribe likewise masterfully massaged a fundamental right out of Lawrence. But the scholars' efforts were needed.

Obergefell was different. As I wrote on SCOTUSblog the day after that decision, the dissenters should have had "little cause for complaint" about how Obergefell's "holding fit with conventional constitutional doctrine," because Justice Kennedy's majority opinion said "with admirable clarity that marriage is a fundamental right and that the state ha[d] not offered a sufficient justification for denying it to same-sex couples." Some people may not have a taste for what I called Justice Kennedy's "soaring rhetoric" in Obergefell, but others might reasonably think that a landmark ruling calls for such language.

Justice Gorsuch's prose style differs from Justice Kennedy's. Gorsuch is staccato where Kennedy is legato. But the accumulation of Gorsuch's rapid-fire hypothetical examples in Bostock works extremely well overall. He coins a catchy phrase in rejecting the defendants' argument that discrimination because of sex doesn't include sexual orientation or gender identity discrimination because those are sub-categories that Congress did not single out: There is no "such thing as a 'canon of donut holes,' in which Congress's failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception."

Justice Gorsuch's examples are vivid and persuasive. The defendants suppose a hypothetical employer who refuses to hire anyone who self-identifies as gay or trans on a job application, without the employer knowing their sex. In explaining why distinctions drawn on the basis of sexual orientation and gender identity nonetheless necessarily are drawn on the basis of sex, Justice Gorsuch asks the reader to "imagine an applicant doesn’t know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done." Brilliant! 

And so, having lavishly (but appropriately) praised Justice Gorsuch and his opinion in Bostock, I pose a question for myself. Does the fact that he was convinced by textualist arguments and wrote a highly textualist opinion lead me to rethink my skepticism of the ability of textualism to actually constrain judges--as expressed at greatest length and most recently in the forthcoming Cornell Law Review article by Prof Buchanan and me about which I blogged here? Although I am always open to rethinking my views and changing my mind, the short answer is no. I'll now elaborate.

Monday, June 15, 2020

Could Elimination of Qualified Immunity Lead to Elimination of the Exclusionary Rule?

by Michael C. Dorf

In my Verdict column last week, I discussed the emerging bipartisan coalition that aims to eliminate or substantially cut back on the qualified immunity (QI) that state and local officials currently enjoy when sued for civil rights violations. To summarize what I wrote in the column:

(1) The main federal statute authorizing civil rights suits does not mention QI, but the courts have read in such a defense partly on the ground that the Reconstruction Congress that wrote the statute assumed QI as part of the background common law and partly on the policy ground of avoiding over-deterrence of the police and other state and local officials. (2) Conservatives have lately questioned QI on the ground that the current doctrine goes well beyond the 19th-century common law and more broadly on textualist grounds, thus joining liberals who have long argued that QI provides the police with a too-generous shield. (3) Because of the essentially universal practice of indemnification, QI's elimination would not expose individual officers to added liability. (4) Thus, the main impact of eliminating (or very substantially curtailing) QI would be to impose what is effectively respondent superior liability on the governments that indemnify their officers, which could have the benefit of leading those governments to better train, supervise, and discipline officers. (5) But municipalities are already on the hook for the most egregious violations (like police murdering innocent civilians) and those violations occur at an alarming rate, so additional liability might not have much deterrent value. (6) Indeed, eliminating or substantially curtailing QI could even have a perverse effect of narrowing the underlying constitutional rights, because conservative judges and justices who are currently willing to recognize civil rights might hesitate to do so if the consequence is what they regard as unexpected and thus unfair liability.

My Verdict column did not reach a conclusion about the question whether eliminating or substantially curtailing QI would be net-positive, instead simply laying out the potential benefits and costs as summarized above. In response to the column, I received an email from my former student, attorney George El-Khoury, identifying another potential cost: the elimination or substantial further curtailment of the Fourth Amendment exclusionary rule (ER). After elaborating why QI elimination or curtailment could imperil the ER, I'll suggest a strategy for minimizing the risk. The strategy is Congressional legislation.

Friday, June 12, 2020

What is Constitutional Theory About and For? (My Contribution to a Conference on the Unraveling New Deal Settlement)

By Michael C. Dorf

Today I will be attending (via Zoom) an all-day conference on the "Unraveling New Deal Settlement" organized by U Chicago Law Prof Genevieve Lakier and my colleague Prof Nelson Tebbe. The New Deal Settlement refers to the conventional account of constitutional law since the late 1930s, in which courts defer to the outputs of representative institutions except where fundamental rights are at stake. The leading theoretical account is by the late John Hart Ely in his 1980 book Democracy and Distrust. The conference organizers asked us participants to address the questions whether the New Deal Settlement ever really was as robust as it seemed, why it has broken down, and what should replace it.

The participants will be the two organizers, myself, and the following scholars: Kate Andrias; Jack Balkin; Aziz Huq; Amy Kapczynski; Jeremy Kessler; Leah Litman; Sam Moyn; Doug NeJaime; Jed Purdy; Sabeel Rahman; Micah Scwartzman; Amanda Shanor; Steve Shiffrin; Reva Siegel; Gerald Torres; and Laura Weinrib. I've read the short papers the participants were asked to contribute and they're terrific. But now the bad news for my readers: It's a closed conference in order to facilitate genuine discussion rather than performances. To the extent that it's consistent with any confidentiality considerations, I might report general impressions in a follow-up essay. Meanwhile, I've taken the liberty of pasting my own contribution below. Discuss amongst yourselves (because I'll be tied up today).

Thursday, June 11, 2020

Protests and Coronavirus: Yet Another Case of False Equivalence

by Neil H. Buchanan

Given that the coronavirus pandemic has in no way ended -- indeed, cases are rising in many U.S. states, even during the time when they should be falling -- some people are understandably worried that the ongoing mass protests against racist police violence have possibly contributed to the spread of the virus.  I have the advantage of being able to cross the street when the rare pedestrian comes into view during my sanity-preserving walks, but I still want to return to something like normal.  I am concerned any time I see lack of social distancing.

That does not, however, in any way mean that protests against public health measures by right-wing groups carrying assault weapons are the same as protests by millions of citizens calling for racial justice.  Yet that equivalence is now being promoted by conservatives as an indirect way of criticizing progressive protesters.  When I first saw a column making this slippery argument a few days ago in The Washington Post by op-ed columnist Megan McArdle, I was annoyed but not surprised, considering the source.

McArdle's business model amounts to trivializing important issues, so it was hardly a shock to see her claiming that "I’m quite positive that courts won’t let governments distinguish between assembling to protest police brutality and assembling to protest public health policy.  One can, of course, argue that there’s a moral difference. But moral distinctions have no force outside the community that makes them" (emphasis in original).

If one thinks about it, this is actually a pretty clever move.  One need not say anything about the content of the protests, meaning that a conservative does not have to defend systemic racism.  Instead, she merely says that different people have different priorities, and because moral differences are a matter of mere opinion, it is bad bad bad to try to suggest that one kind of protest is more defensible than another.

This is nonsense, but unlike McArdle's usual work, this one actually requires a bit of unpacking.  Again, however, I would not have thought it worth the time to do so until yesterday, when Post columnist Max Boot echoed the false equivalence even more bluntly.  This is now worth thinking about.

Wednesday, June 10, 2020

The Umpire-in-Chief and the Religion Clauses: Will he Make the Right Call in Espinoza v. Montana Dep't of Revenue

By Eric Segall

From 1988-1991, while at the Department of Justice, I litigated on behalf of the United States Department of Education a church/state case in San Francisco in which a public interest group challenged federal aid to private religious schools. I worked closely with experienced lawyers representing the United States Catholic Conference and the Archdiocese of  San Francisco. Their position, and ours, was that the federal program was constitutional under relevant Court cases involving what the government could and could not provide to parochial schools. No one, and I mean no one, thought for one second that, by giving aid to not-for-profit private secular schools, the federal government would be constitutionally obligated under the free exercise clause to provide the same aid to religious schools. Quite simply, no one thought that.

Sometime in the next month, the Court is going to decide Espinoza v. Montana Dep't of Revenue. This case should be a one-day blip with no lasting significance, but it could end up invalidating the laws of 38 states and the local education financing schemes of almost 20 states. That result would be a disaster for federalism, education, the separation of church and state, and the country.

Tuesday, June 09, 2020

Everyone Should Have My Privileges

by Neil H. Buchanan

It is difficult even to begin writing columns these days, because there is so much going wrong in the world.  When the issue of systemic racism came to dominate our lives, however, it became even more of a challenge to try to engage in a helpful way.  As a white Anglo-Saxon protestant man with a titled academic position, I have to ask myself what this aging liberal can say that does not run the danger of being presumptuous or possibly tone-deaf.

It then occurred to me that I can come at this by acknowledging my privilege.  I am committed to engaging with others and to trying to understand and help (if I can) those who have reason to fear the police, but maybe it is also useful at least to try to describe what it is like not to fear the police.

That is, I can attempt to explain how the privileges of race, class, and gender play out in ways that are often all too easy to take for granted.  Stopping to think about what I have almost never had to think about is enlightening, not only in terms of my own self-awareness but as a means of asking what a much better world would look like.

The short version is simple: Privilege is great.  I am fortunate.  Everyone should be able to enjoy the same privilege and take it for granted.  Is that possible?

Monday, June 08, 2020

Imagine Being a Lawyer for the Trump Administration

by Michael C. Dorf

In the immediate aftermath of the 2016 general election, I wrote a column expressing the hope that a Trump presidency would not be quite as awful as the majority of voters who did not choose him feared.  Although some of my specific points have proven true, overall I was wrong. Amazingly, Trump has managed to exceed the remarkably high expectations for awfulness. Mea culpa.

In today's column, I do not so much wish to dwell on the many ways I was wrong or the few ways in which I was right, as to focus on one of the points I made in the portion of that November 2016 column that offered advice. Here's what I said to Never-Trump Republicans (after thanking them for their opposition to Trump):
If you are a principled conservative who opposed Trump's candidacy for any of the many excellent reasons there were to oppose it, PLEASE consider seeking and accepting a job in the Trump administration. We have a unitary executive in principle, but in practice it takes a great many people to run the government. If principled conservatives decline to serve in a Trump administration, it will be filled with servile hacks. Working in the government, you can better advance the rule of law and other values you hold dear than by standing outside and criticizing. In any event, we liberals will be doing plenty of that.
In retrospect, was that sound advice? A deeply insightful recent essay in The Atlantic by Anne Applebaum would say no. She describes the work-to-constrain-Trump-from-within approach as merely one of the self-serving fairy tales that Trump's enablers tell themselves, just as collaborators with other authoritarian regimes have tried to justify their actions. Yet while I find much of what Applebaum says in comparing Trump's enablers and apologists to the enablers of and apologists for past and present immoral regimes quite profound, I'm less certain about this line of argument.

Certainly the ranks of former members of the Trump administration include quite a few career public servants who took the work-from-within approach but ended up resigning or being fired when they found themselves unable to constrain Trump's worst impulses and for their sacrifice were the victims of Trump's childish lying Twitter rants. But putting aside the likely personal toll, did Generals Mattis, McMaster, and Kelly do more good than harm during the time they were part of the Trump team? Do Dr. Fauci's precarious efforts to contradict Trump's nonsense outweigh the compromises he must make on a daily basis? It's impossible to know the answers to such questions because we don't know how things would have gone had these men not served at all or (in the case of those who resigned) had they stayed on longer.

Accordingly, in the balance of this column, I'll focus less on whether the decision to try to work from within is justified than on what it must feel like. I'll discuss a special subset of the people who have served in the Trump administration: lawyers. In focusing on lawyers in particular, I do not deny that others have faced similar difficulties. The federal law enforcement officer tasked with enforcing Trump's racist immigration policies, the National Park Ranger instructed to abet rather than hinder ranchers abusing federal land, the National Weather Service officials pressured to disavow a hurricane forecast, and countless other federal officials of all ranks who are not eager Trump supporters will have had their own particular hard choices and moments of doubt. But I know a bit more about lawyers, so I'll turn to them.

Friday, June 05, 2020

Good News? Skeptically Assessing the Claim That 'the System' Will Force Trump to Leave Peacefully

by Neil H. Buchanan

Will Donald Trump ever leave office, either because he loses this Fall or because his second term ends in January 2025 (and the Constitution has not been amended in the meantime to allow a third term)?  I am among those who have been frantically warning that the answer is no, that Trump will simply refuse to leave office.

My most recent Verdict column explains that there might be nothing that we can do about this.  Wednesday's parade of silence from Republican U.S. Senators, who were asked about Trump's order for security forces to violently push peaceful protesters out of Trump's path to a photo op, certainly supports my assertion on Verdict that these senators would piously refuse even to entertain questions about a Trump coup in advance.  "I will not dignify such an outrageous question with an answer!"

The two plausible non-outrageous and non-dangerous scenarios in which Trump stays in office next year are: (1) Trump is declared the winner of the election, and Democrats decide not to force any possible claims of voter suppression or election fraud; (2) Trump is declared the winner and the Democrats aggressively challenge that declaration, but they lose in the courts and then accept that result.

If Trump is declared the loser of the election, or if the courts rule that he should have been declared the loser, then my prediction that Trump will refuse to leave and that Republicans will abet him would be wrong under two further scenarios: (1) Trump tries to stay in office, but Republicans -- finally facing a non-hypothetical constitutional crisis -- stop him; or (2) Trump decides not to try to stay in office, choosing to forgo false claims of voter fraud and all that, instead quietly packing up and going to Mar-a-Lago.

Clearly, I think that that last possibility is now hilariously, horrifyingly impossible to imagine.  Republicans finally stopping him also has become impossible to imagine.  The only way that we will not have a crisis later this year, then, is if Trump wins and Democrats give up; and even then, we would merely be back here four years from now, wondering if the 78-year-old Trump will leave office (assuming that there is anything at all left of the rule of law by then).

But wait, maybe I am wrong!  A reader pointed me to a very recent Slate column, "Trump Can’t Just Refuse to Leave Office: We have a lot of things to worry about in the next eight months. This isn’t one of them," by someone named Fred Kaplan.  That sounds wonderful.  Maybe there is something that I have not thought of before now, and if Kaplan has some great insights, I am all ears.

As I will explain below, however, the case that Kaplan makes does nothing to allay any reasonable fears.  His claims are slightly better than other don't-worry-be-happy arguments, but he simply does not prove that Trump and the Republicans would be unable to keep him in office.

Thursday, June 04, 2020

Are Churches Like Restaurants? Like Political Rallies? If So, Why Isn't Peyote Like Wine?: The Comparator Problem In Religious Discrimination Cases

by Michael C. Dorf

In my essay on Tuesday, I criticized the dissenting Justices in South Bay United Pentecostal Church v. Newsom for seeming to misunderstand and/or mischaracterize California's rules governing in-person worship services, which, at the relevant time, were permitted if limited to 25% seating capacity and a cap of 100 people. As California argued and Chief Justice Roberts explained in his concurrence, comparable secular activities such as lectures, concerts, and live spectator sports were completely forbidden, so that far from discriminating against religion, California was giving religious worship services a special benefit (assuming that the opportunity to contract COVID-19 is a benefit, as all parties assumed). Justice Kavanaugh's dissent contrasted the treatment of worship services to other activities that were not subject to the 25% cap: "factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries." Yet, as the Chief Justice noted, these venues and activities are not really comparable in terms of health risk, because they do not occur in places "in which people neither congregate in large groups nor remain in close proximity for extended periods."

That's plainly right for most of the examples, but, a commenter on my earlier post observed, not necessarily all of them. Accordingly, another commenter concluded, California really was making a judgment not only about relative health risk but about the relative importance of religion and some other activities. And therefore, the commenters implied, my criticism of the Kavanaugh dissent for conflating a health risk judgment with an importance judgment missed the mark.

In today's follow-up essay, I'll say a few words about relative health risks--focusing on restaurants and political rallies--before turning to a question of constitutional doctrine that has implications and applications beyond the current context. Bottom Line: Chief Justice Roberts and I are right; Justice Kavanaugh and the commenters are wrong.

Wednesday, June 03, 2020

How Close Are We to A Breakdown of True Law and Order?

by Neil H. Buchanan

This is horrifying.  Last week on Dorf on Law, we took a partial break from the news cycle by devoting three of our five columns to an academic discussion about an issue that we care about greatly, but that luxury is for the time being denied to us, because the man who has claimed over and over again to be "the most militaristic person there is" now has actually threatened to turn American cities into battle zones and has had troops fire tear gas, flash grenades, and rubber bullets at peaceful protesters.

It is amazing, in fact, that I did not know about Trump's "most militaristic" claims until I watched Seth Meyers's segment last night (from the 7:59 mark through 8:26 of the video, showing six times when Trump so labeled himself); but it makes sense not only that Trump would say such an idiotic thing but that we never even noticed, given how many other things he has said that are equally deranged.

That Trump (or maybe it was Bill Barr) ordered this police-on-public violence to clear the way for a weird walkabout to a church makes it that much creepier, but the point is that Trump has noticed that "the protests" have not all been peaceful, so it is now apparently acceptable to treat all protesters as thugs and criminals, even when the actual protesters are not being thuggish or committing crimes.

In situations like this, conspiracy theories inevitably run rampant, and there are all kinds of theories about who is instigating the violence.  But some theories are better than others, and especially when there is a president who thrives on chaos, one can expect those who support him to seize opportunities to give him excuses to overreact.  How does this work?

Tuesday, June 02, 2020

Statement by the Black Law Students Association of Cornell Law School (Guest Post)

Dear Cornell Law School community, 


Cornell Law School’s Black Law Students Association (BLSA) stands with the families of George Floyd, Breonna Taylor, Tony McDade, and Ahmaud Arbery. We give honor to their memories and to the memories of countless others who have been unjustly taken from this world, whether we know their names or not. We extend our heartfelt condolences to their loved ones and acknowledge that the people they have lost are more than a hashtag.  


Black people are in a unique position today, facing both the brunt of the COVID-19 pandemic and the unrelenting violence against our brothers and sisters all across the country. In the last month, we have seen videos of Ahmaud Arbery’s and George Floyd’s murders. We have seen reports of Breonna Taylor’s and Tony McDade’s murders. This trauma is incessant in the age of social media and more than any community should have to bear.  

 

While we continue to grieve Mr. Floyd and others, we are reminded that murders like his are the result of centuries of injustice and oppression – of this country’s refusal to address and change its longstanding practice of anti-Blackness. More often than not, senseless killings by police result only in superficial reprimand that falls short of addressing the underlying problems that support a racist system. To be sure, true justice does not stop at an arrest – true justice requires that we reexamine the structural inequities that continuously exclude and actively oppress Black and brown people. 

 

Many of us applied to law school hoping to make a difference, to be an ally. As lawyers in the majority, many of you will have access to spaces and tables that your Black counterparts will not. When the time comes, it will be important for you to remember this moment – remember your responsibility as movers and shakers in our justice system. Remember that your Black friends will continue to mourn long after this country has forgotten why we were protesting to begin with. We bear the burden of constantly burying our brothers and sisters and ask that you stand next to us as we endeavor to dismantle the system of oppression. 

 

Do not be complicit in the deaths of Black people. Have those tough conversations with your family, friends, co-workers, and fellow students. Do not shy away from the fact that both police officers and civilians are continuously allowed to use lethal force and violence against Black people. To remain silent – to remain neutral – is to side with our oppressors. Your silence is violence. Publicly demand equality, justice, and safety for us.

 

For Four SCOTUS Conservatives, Insufficient Discrimination In Favor Of Religion Is Discrimination Against Religion

by Michael C. Dorf

South Bay United Pentecostal Church v. Newsom should have been a unanimous Supreme Court decision. Under the 1993 precedent of Church of Lukumi Babalu Aye v. Hialeah, a law or policy that on its face or in its intention discriminates against religion or a particular religion violates the constitutional guarantee of free exercise, though under the earlier (1990) precedent of Employment Division v. Smith, a law or policy that applies evenhandedly to religious and secular activities, individuals, and organizations does not implicate free exercise.

As Chief Justice Roberts explained in an opinion concurring in the Court's order in South Bay United last Friday, the Court had before it a challenge to an evenhanded policy. When the case came before the Court, California was allowing houses of worship to hold in-person services, but in light of the risk of COVID-19 spread, had limited attendance to 25% of seating capacity and a maximum of 100 people per service. "Similar or more severe restrictions apply to comparable secular gatherings," Roberts explained, "including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time."

The Chief was right, although he understated the point. As of when the South Bay United case came before the Court, California's rules clearly favored religious gatherings. They expressly forbade (and as of this writing still forbid) secular "professional, social and community mass gatherings," but made "an exception to the prohibition against mass gatherings for faith-based services and cultural ceremonies as well as protests," which were permissible, subject to the 25%/max-100 limit. Put simply, California has been discriminating in favor of religion, not against religion, and thus the challenge rightly failed under Lukumi/Smith.

So why wasn't the decision unanimous? Why did Justices Thomas, Alito, Gorsuch, and Kavanaugh dissent? After exploring a doctrinal possibility, I'll offer the hypothesis that they are so steeped in the FoxNews War-on-Christmas culture that they perceive modest favoritism for (Christian) religion as discrimination against it.

Monday, June 01, 2020

The American Experiment: A Blip in Time or a Country for the Ages

By Eric Segall

Forty-three years ago I was walking around Cambridge University on a breezy summer day. My buddy and I were working in a mail room in Brighton between freshman and sophomore years of college and decided to hitchhike, yes hitchhike, to Cambridge for an annual music festival.  The groups were mostly British except for the headliner, a new American folk/pop star named Don McLean.

As we strolled around the campus, we came upon a student dormitory that was built in the 13th century. I don't remember the date with 100% certainty but I think it was 1268. Bill and I looked at each other. We were shocked and amused by this. Students were learning and teachers were teaching on this spot more than 500 years before the United States of America was born. Five-hundred years. In 1977, our own country was just a tad over 200 years old, and England had been around much more than twice as long as that.

Skip ahead to last Friday. I was taking my morning walk and listening, as I always do, to the Dan Le Batard show on ESPN. For those who don't know, this radio show is part sports, part sports satire, and part social commentary, with its serious moments. On this day, Dan Le Batard began his show as follows: "A CNN was reporter was arrested at what is feeling less and less like America. Boy I miss my country." I think many people, definitely myself included, feel this way too, but what exactly does it mean?

Friday, May 29, 2020

Of Economics, Legal Reasoning, and Religion: Conservatives' Opportunistic Escape Hatches

by Neil H. Buchanan

I have at various times thought that there was hope that the people with whom I disagree on matters of public policy and legal issues were at least making some kind of internal sense.  That is, I thought that perhaps it was possible to follow their logic and apply it to new questions, and even if the answers to which their logic might lead were "not conservative," at least the other side would have to admit that their own approach to answering such questions had led us there.  Fair is fair.

I miss those days of optimistic youth.  As Professor Dorf and I have both announced this week (here and here, respectively), we recently wrote a law review article, "A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism," in which we note not only that conservatives are playing rigged games in both economic analysis and legal interpretation but that the way in which they have rigged both games is surprisingly similar.  We make further points based on our observations, but that similarity is the key that motivated us to write the paper in the first place.

Professor Dorf's column on Tuesday did a nice job of summarizing our article, whereas my column yesterday explored whether anything remains of the concept of economic efficiency once we understand that its theoretical basis is incoherent.  Here, I will briefly discuss a few examples of times when it almost seems as if taking conservatives' preferred argumentative structures seriously might lead somewhere surprising (and useful), only to find that the story always bends back on itself whenever the preferred right-wing outcome is threatened.

After a quick summary of the two halves of our argument, I will move on to those illustrative examples.

Thursday, May 28, 2020

We Can Have a Fairer, More Prosperous World: The Deep Emptiness of Efficiency as a Concept Is Even Deeper Than It Seems

by Neil H. Buchanan

Pretty much everyone who has studied even a tiny bit of economics is likely to have come across the familiar "efficiency-equity trade off," which posits not only that there are two distinct concepts called efficiency and equity but that they are in conflict.  If we want more efficiency, the logic goes, we must accept less equitable outcomes.  If we want more equity, we must give up some efficiency.  Sound familiar?

This is, in fact, not only wrong as a matter of logic but tragically so in its consequences.  Even though it is wrong, however, the liberal/conservative divide in the U.S. (and probably in many other countries as well, although what counts as left-ish in this country is clearly to the right of center in any other country to which we might compare ourselves) is in some ways built around this false choice.  Liberals have accommodated themselves to the idea that they are trading away some amount of efficiency when they promote things like minimum wages and income supports, and conservatives delight in saying that liberals want to kill the proverbial golden goose.  We thus see right-wing think tanks pumping out op-eds with headlines like this recent New York Times guest piece: "The American Dream Is Alive and Well: We have bigger issues than inequality."

To be sure, left-leaning economists and other policy analysts can do a lot of interesting work within the narrow strictures of that debate, sometimes pointing out when efficiency (as typically conceived) can be enhanced by pursuing more equitable policies.  The most obvious examples are in medical care and health insurance, where it is particularly easy to describe how the usual conservative economic assumptions are violated in ways that cause "free market" choices to be wasteful, hugely unfair, and self-defeating,

But this framing of a trade-off between equity and efficiency is, as I noted above, deeply wrong.  As Professor Dorf announced in his column here two days ago: "A New Buchanan/Dorf Paper Explains Why We Don't See More Conflict Between Law & Economics and Originalism/Textualism."  Our article draws from the authors' respective areas of specialization (I write mostly about economics and policy, Professor Dorf focuses on constitutional law and legal interpretation, among other things) to note an unexpected similarity between how conservatives in my field and conservatives in Professor Dorf's field rig their respective games: both groups claim to be using neutral, objective, and even scientific methods of analysis, yet somehow those analyses can be manipulated to produce conservative results every time.

There is much more to the article, of course, and interested readers should take a look at Professor Dorf's column.  People who have run out of Netflix content might even find a pleasurable diversion in the paper itself: "A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism."  Here, I want to move the analysis from the broader economic critique that forms the basis of half of the article to a particularly alluring misuse of the efficiency concept in legal and policy analysis.

So as not to be coy or evasive, I will state my bottom line as clearly as I can here: Not only is efficiency an empty concept, but it is deeply empty in the sense that it is wrong even to fall back on a narrower claim, which generally goes like this: "Well, it's true that efficiency is manipulable, but there are some situations where it so obvious that something is inefficient that it is still meaningful to use the concept, albeit modestly."  No, even that minimalist defense cannot be sustained.

Wednesday, May 27, 2020

Of Lynchings, Grand Jury Secrecy, and the Rot of Racism in the United States

By Eric Segall

On July 25, 1946, about sixty miles east of Atlanta, two African-American couples, Roger and Dorothy Malcom and George and Mae Murray Dorsey, were dragged from their car at gunpoint, tied to a tree, and shot approximately 60 times. The attack came to be known as the Moore’s Ford lynchings. 

Despite the police interviewing almost 3000 witnesses, and a grand jury investigation that lasted for 16 days with over 100 witnesses, no one was ever arrested for these terrible and gruesome murders, which took place in public. Some people believe this heinous crime was the last mass lynching in our country.

Historian Anthony Pitch, who had already written one book on the subject, spent the last six years of his life trying to unseal the grand jury materials relevant to the lynchings. He believed that this racist crime and the likely coverup of those who committed it was a major event in American history as well a tragic saga of race in America.

He prevailed in front of both the trial court and a three-judge panel of the United States Court of Appeals for the Eleventh Circuit. After the appeals court decided to hear the case en banc, however, Pitch passed away.  Nevertheless, his widow kept the lawsuit alive. Then, on March 27 of this year, by a vote of  8-4, the full Eleventh Circuit reversed the panel decision and said the materials must remain sealed. Mr. Pitch's widow has 90 days from the date of the decision to ask the Supreme Court to hear the case.

As a general rule, of course, grand jury records are and should be sealed forever. This practice protects witnesses and motivates them to step forward, helps police keep matters under wraps while they investigate crimes, and protects the innocent from hurtful disclosures about their private lives, among other benefits deriving from this long-recognized need for secrecy.

Like most important rules, however, the requirement of grand jury secrecy is not absolute. The relevant law is Rule 6(e) of the Federal Rules of Criminal Procedure. The Rule codifies grand jury secrecy and contains a number of exceptions, none of which apply to this case. However, both the trial judge and the three-judge panel held that federal district court judges have inherent discretionary authority in exceptional circumstances to order the release of grand jury materials even if none of the exceptions in 6(e) apply. The narrow exception carved out by these courts was for grand jury proceedings occurring long ago and related to events of great historical significance. Both the trial judge and the appellate panel had more than a reasonable basis for that conclusion because the Eleventh Circuit so held in a prior case. To reach the conclusion that the Moore's Ford lynching materials could not ever be released, the en banc court had to reverse its own precedent.

Tuesday, May 26, 2020

A New Buchanan/Dorf Paper Explains Why We Don't See More Conflict Between Law & Economics and Originalism/Textualism

by Michael C. Dorf

In my Memorial Day essay yesterday, I approvingly referred to two recent criticisms of economists by Professor Buchanan (here and here). Readers may be wondering whether we're done criticizing mainstream economics. If so, wonder no more. We're not. Professor Buchanan (who is himself an economist by training) and I have an article forthcoming in the Cornell Law Review that explains why Law & Economics (L&E) is bunk even when it is not being invoked to promote policies that will kill tens of thousands of people.

In A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism, we look at L&E alongside the other leading conservative approach to law: originalism in constitutional interpretation and textualism in statutory interpretation (collectively O&T). We address a puzzle: Given that L&E and O&T are grounded in different frameworks and prescribe different methodologies, why do they so rarely result in open conflict? The answer: Because they're both so open-ended as to work as a mask for whatever ideological priors a judge holds, and the particular people with those priors are on the political right.

Monday, May 25, 2020

For Memorial Day: Remembering All the Fallen

by Michael C. Dorf

On this Memorial Day, I think it appropriate to remember not only those who lost their lives defending the United States against human enemies but the roughly one hundred thousand Americans who have thus far perished due to COVID-19. Some of those deaths were probably inevitable, but as the widely varied experiences of different countries show, a great many were not. And a recent study concluded that even short delays in imposing social distancing and quarantine measures resulted in tens of thousands of additional lives lost.

Friday, May 22, 2020

Distinguishing Habeas from Conditions of Confinement Challenges is Needlessly Formalistic

by Michael C. Dorf

I have joined an amicus brief that will shortly be filed in a pending case by a prison inmate at heightened risk from COVID-19 due to his age and pre-existing conditions. As readers surely know, prisons and jails have become hotspots for the spread of the novel coronavirus. Designed to house prisoners in small quarters and often over-crowded by ordinary standards, prisons and jails either cannot or do not provide the sort of social distancing that can reasonably mitigate the risk of spread. Consequently, authorities in some jurisdictions have released nonviolent and otherwise low-risk offenders.

However, not all jurisdictions have followed this path, and some that have are doing so in ways that raise questions. Accordingly, lawsuits have been filed. My goal today is not to describe any particular lawsuit in particular, but to make what should be an obvious point about risk and then to propose a commonsense change to state and federal procedural law governing litigation by prisoners.

Thursday, May 21, 2020

Why Are Some Economists So Awful Right Now? Part 2

by Neil H. Buchanan

A bit more than a month ago, I published a Dorf on Law column under the title: "Why Are Some Economists So Awful Right Now?"  I have now added "Part 1" to that title, and today's column is an addendum to my discussion there.

Part 1 focused mostly on two people (Tyler Cowen, who holds formal credentials as an economist, and Richard Epstein, who holds no such credentials but is considered a big shot among the right-wing Law & Economics crowd), both of whom have been particularly awful about the current pandemic.  Both essentially say that they know more than epidemiologists, or at least (per Cowen) that maybe epidemiologists are not all that smart and should not be taken seriously.

To that small brotherhood we can now add Kevin Hassett, former chair of Donald Trump's Council of Economic Advisors (CEA), who was made a Senior Advisor to the President on April 15 of this year.  Hassett, who had mostly flown under the radar even when he was at CEA, has had his moment in the spotlight recently, making particularly galling comments about the COVID-19 catastrophe.  It is worth thinking about what Hassett has done, and why.

Wednesday, May 20, 2020

Do "Fake Friends" Violate the Fourth Amendment? Guest Post by Michael Mills

Note from Sherry F. Colb: When the current public health emergency led law school instruction for the second half of the Spring to shift online, we (Cornell and many other schools) also adjusted our grading policy. Based on principles of compassion, equity, and integrity, we shifted all grading to pass/fail. Everyone who earned a passing grade under these very trying circumstances deserves a great deal of credit, but I also hoped to recognize outstanding performance in some way. Accordingly, I offered to publish two of the top essays for my criminal procedure exam. Below is one of the exam answers of Michael Mills, a law student who has now just completed his second year at Cornell. I have omitted the prompt, because the answer speaks for itself.
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Do "Fake Friends" Violate the Fourth Amendment? 
by Michael Mills

We tell our friends a lot. We turn to them to share our accomplishments when we’re happy. We seek comfort from them when we’re sad. We ask them for advice when we’re conflicted. This tendency is not just a choice we make but a biological imperative. Humans are social creatures that pursue these kinds of interactions to satisfy their psychological needs. But what if this friend that you’ve been confiding in turned out to be a government agent? What if your best friend’s sole purpose in befriending you was to collect information for an investigation? Surely, you would feel that your privacy had been violated. But does the “pretend friend”/government agent's privacy invasion rise to the level of a search under the Fourth Amendment?

The Fourth Amendment protects people from unreasonable searches and seizures. A preliminary question you must ask under the Fourth Amendment is whether the government’s action is a search or seizure; if it is not, the action falls outside the Fourth Amendment’s scope. As a result, if the government’s use of pretend friends is a search, the government must obtain a warrant for it (assuming no warrant exception applies). But if it’s not a search, the government can utilize these pretend friends without a warrant and without probable cause.

To determine whether an action is a search under the Fourth Amendment, we turn to the Supreme Court’s decision in Katz v. United States. The government there recorded the defendant’s conversation inside a telephone booth, without the consent of either party, using an electronic listening device. The Court ruled that this qualified as a search. Under the test Justice Harlan set out in his concurrence, which became the controlling test over time, the defendant had a subjective expectation of privacy for the conversation he had inside the phone booth, and society is willing to accept that expectation of privacy as reasonable.

Applying Justice Harlan’s test, the use of undercover agents posing as pretend friends should qualify as a search under the Fourth Amendment since it violates a reasonable, subjective expectation of privacy. Looking solely at the Katz factors, it is clear that these agents violate our reasonable expectations of privacy. The subjective prong gives little difficulty, since by solely telling something to a friend, and not to the whole world, we are subjectively manifesting an intent not to tell others. There may be cases where this subjective intent is not met (e.g., if you shout a secret across a crowded room to your pretend friend) but in most circumstances you are subjectively intending to talk to your friend in confidence.

The next question is whether this expectation of privacy is something society is willing to accept. The Supreme Court has often taken a descriptive view of this question, meaning the Court asks what possibly could have happened absent government intervention. Because your friends could betray your trust, it is not reasonable to expect privacy.

Yet, this descriptive approach ignores all normative implications. Although your friends may betray your trust, that is not the typical result, and the government’s involvement greatly expands that betrayal’s scope. Obviously, your expectation of privacy in a secret diminishes when you disclose it to others. But the risk you are taking is quite different from the one the State imposes when it gets involved. If you tell your non-agent friend your secret, the typical risk you are taking is that your friend may tell other people that know you.

For example, maybe your friend tells your other friends about your gambling problem (hopefully with the intent of getting you help). Or maybe your friend will encourage your crush to go on a date with you. Or maybe your friend tells your significant other about an affair you're having. Normatively, however, you are not taking the risk that your friend is going to go to the government with your secrets. That result is highly unusual, absent governmental intervention.

Additionally, it seems inconsistent to say that the government violates a reasonable expectation of privacy when it listens into a call without your friend's consent (like what happened in Katz) but doesn't violate it when it becomes your (pretend) friend. The end result is the same in both cases from the speaker's perspective. As a society, we should recognize that there are limits on the risks you are taking by talking to others. Those risks usually don't include the intrusion of the government spying on your life and secrets. Thus, society should recognize the reasonable expectation of privacy in friends.

The Katz test, however, is complicated by the Supreme Court’s precedent in United States v. White. In this case, the Court took a descriptive approach and held that there was no empirically reasonable expectation that no one would listen to your calls with friends when your friend consented to the government's listening. Even assuming this case is rightly decided (which is questionable based on the above Katz analysis), the government action in White was different from the government’s use of pretend friends.

White involved only the government listening in on four conversations between the defendant and his friend. But when a government agent becomes your "friend" with the sole purpose of infiltrating your life, the scope of the privacy violation is much greater. The pretend friend cares nothing about you or the secrets you share. As a result, the pretend friend violates the expectation of privacy for everything that you tell them.

For example, you may tell the friend that you’re getting a divorce. That has nothing to do with the government's investigation, but now they know it. By contrast, your real friend isn't going to share that information with the government if the government is only interested in your criminal wrongdoing. Thus, the use of pretend friends is different from White because the intrusion’s scope is much wider.

We can draw a good analogy  between this situation and the GPS tracker cases. The Court held in United States v. Knotts that a tracker installed in a barrel the defendant bought didn't violate a reasonable expectation of privacy since the defendant had no reasonable expectation of privacy while traveling in public. This was a descriptive approach since anybody could have followed your travels, similar to the tracker. However, compare this result with Justice Alito's concurrence in United States v. Jones. There, a GPS continuously trackedthe defendant's every location for a month. Alito, joined by four Justices (and a fifth, Justice Sotomayor, who agreed with his conclusion but felt it wasn't necessary to reach the issue), argued that this extensive scope violated a reasonable expectation of privacy. Tracking more limited in scope, such as in Knotts, did not violate a reasonable expectation of privacy because of its duration. But Alito argued a month of 24-hour surveillance did violate a reasonable expectation of privacy. This analysis is a normative approach since somebody could follow you every hour of the day for a month, in theory, but they rarely actually do so.

Similarly, here, the government listening in on some phone calls with your friend does not violate a reasonable expectation of privacy. But the government befriending you and taking note of everything you share with your fake friend for an indefinite time certainly exceeds White's scope and violates your reasonable expectation of privacy. For these reasons, White does not preclude the argument that "fake friends" violate a reasonable expectation of privacy. Therefore, since fake friends are searches under the Katz test, the government should have to obtain a warrant before implanting a pretend friend in your life.

Tuesday, May 19, 2020

Holding the States and Cities Hostage to Enable Corporate Recklessness

by Neil H. Buchanan

Mitch McConnell announced earlier this month that he, Donald Trump, and their Republican enablers will "take a pause" before moving forward on any further economic relief bills.  And why not?  Democrats capitulated to McConnell's insistence that the bills that have been passed thus far leave out states and cities, which desperately need fiscal relief.  Meanwhile, Lindsey Graham has said that extending unemployment benefits will happen "over our dead bodies."

On the other side of the ledger, there is still a half-trillion dollar slush fund that Trump's Treasury lackey Steve Mnuchin can dole out to Republican-friendly corporations.  The deal so far, just as it was with the 2017 tax cut, is to provide crumbs to the masses and feasts for the wealthy.  But it is always possible to grab for more, and McConnell knows a good hostage when he sees one.  What does he want?  An end to corporate accountability, of course.

Here, I want to discuss McConnell's insistence on holding up aid to genuinely needy and essential recipients like state and local governments and to explain why his opportunistic decision to tie any such aid to "lawsuit protection" for businesses is nonsensical.  Although I have reluctantly concluded that Democrats should grit their teeth and pay the "corruption premium" that Republicans have demanded, allowing McConnell to get away with this heist would represent perhaps his most cynical success yet (outside of his court-packing schemes, obviously).

Monday, May 18, 2020

Inspector General Firings Highlight the Danger of the Unitary Executive Theory

by Michael C. Dorf

During the oral argument last week in Trump v. Vance, the President's attorney, Jay Sekulow, rested part of his case on the assertion that the President "is himself a branch of government. He is the only individual that is a branch of government in our federal system." Sekulow meant thereby to invoke the so-called unitary executive theory.

The textual root of the theory comprises the first sentence of Article II: "The executive power shall be vested in a President of the United States of America." You see?, say the unitary executive theorists. All executive power is vested in the President. From that proposition, unitary executive theorists derive various further ones, such as the one for which Sekulow was arguing--that the President should be immune from a state grand jury subpoena, which could distract said entire branch of government from his/its vital work.

It's easy and completely appropriate to ridicule Sekulow's answer with respect to the current President, who seems to spend most of his waking hours watching cable news, Tweeting, and holding extensive press conferences to praise himself, insult the press, and spread lies. On one hand, it's hard to imagine that the President could be more distracted from his job; on the other hand, given the terrible things he does when he actually does the job, it might be good if he were even more distracted.

However, Sekulow's argument would apply to all future Presidents, not just the current one. And as I acknowledged in one of my DoL essays last week, the Vance oral argument and the companion argument in Trump v. Mazars raise real questions about the risks that state grand jury proceedings or excessive congressional inquiries could undercut a normal President's ability to do the job.

Yet while courts and other actors should be sensitive to the dangers of excessive interference with the President and the executive branch, the unitary executive theory is not the right vehicle for expressing that sensitivity. It is dubious in principle and affirmatively dangerous these days--as Trump's firing of State Department Inspector General Steve A. Linick on Friday illustrates.

Friday, May 15, 2020

Using the Crisis to Advance a Preexisting Agenda: Not a 'Both Sides Are Equally At Fault' Situation

by Neil H. Buchanan

Two weeks ago, I wrote here on Dorf on Law that progressives are most definitely not wrongly exploiting the current economic crisis to, as the editors of The Washington Post put it, "use emergency legislation intended to rescue the economy as a vehicle to achieve long-sought progressive goals."  I tried to contrast two types of responses to a crisis: what one could call the "exploitation" move by advocates who push their unrelated policy agendas, as opposed to the "now more than ever move" by advocates who make the case that things that they have always favored have now become even more important due to the crisis.

It is actually somewhat tricky to distinguish the two, because both responses can be characterized as beginning with: "As I've been saying all along ... ."  A key difference is in whether the policy agenda is actually relevant to the crisis.  Thus, I argued that progressives' calls for massive spending on infrastructure (water and sewage systems, bridge and tunnel repair, and so on) are not exploitative, because the argument for such spending is strong at all times -- infrastructure spending increases growth and prosperity -- but is even stronger when there are millions of unemployed workers and resources available.  Eliminating the estate tax, by contrast, would be an exploitative move.

In a comment on that column, Professor Dorf added a new category, writing this:
"We might distinguish 3 categories of policy proposal that X pushes in a crisis:

"(A) A policy that X wouldn't ordinarily favor;
"(B) A policy that X would ordinarily favor on grounds G1 but that is now also supported by G2 due to the crisis; and
"(C) A policy that X would ordinarily favor on grounds G1 and that X is now supporting either on grounds G1 or on pretextual grounds G2 that have nothing to do with addressing the crisis.

"(A) clearly is not exploiting the crisis. (C) clearly is exploiting the crisis. I read Prof Buchanan to say here that (B) also isn't exploiting the crisis. I think that's right, but I also think that how one characterizes any instance of (B) will depend in part on what one thinks about the policy's merits (in general and in the special case of the crisis)."
I want to focus on the final sentence of that helpfully clarifying comment, but first I think it is important to work through Professor Dorf's three categories, especially because the first one was at best implied in my column (but was in any case unexplored).

Thursday, May 14, 2020

Fun With Logic and Its Antithesis in the Trump Era

by Neil H. Buchanan

My new Verdict column, published today, is the first of a two-part analysis in which I make the case for federal disaster relief to states and cities whose budgets have been decimated by the pandemic-related economic crisis.  The second part, to be published either tomorrow or next week, will focus on a potential workaround if Mitch McConnell, Donald Trump, and their tribe continue to oppose such relief.

Today's column, however, is more of an exercise in counter-punching.  Indeed, it essentially amounts to a series of responses to Republicans' absurd talking points, in particular McConnell's claim that such relief to states and cities would cause the federal government to "pay for the Democrats' mistakes," or something like that.  I point out, among other things, that it would be incredibly easy to put states and cities into the same financial position that they would have been in if there had been no crisis, which would mean that any such previous mistakes or supposed overspending by Democrats would not be covered.  Computing this is, in fact, easy to do, which means that -- big surprise -- McConnell's argument is a pretext to justify his cruelty.

Why Republicans want to allow harm to come to the states and cities is not my point here (spoiler alert for Part 2: unions), but especially as an employee of a state that Trump absolutely must carry this Fall -- without Florida, there is virtually no path even to an Electoral College majority for him -- I continue to believe/hope that at some point the Republicans will see their own self-interest in doing the right thing.

Here, I want to run through a list of randomly selected terrible recent arguments from Trump and the Republicans that rival or surpass McConnell's terrible arguments against providing assistance to sub-federal governments.  I will end with a discussion of an odd political argument from a Republican operative whom I quote in today's Verdict column, but the only common thread here is that this is a litany of frustrating but somehow fun examples of egregiously bad attempts at reasoning from what now counts as the conservative movement in the U.S. -- a movement that, by the way, once claimed to be all about ideas.

Wednesday, May 13, 2020

Bridgegate & the Pathological Perspective on Trump's Financial Records

by Michael C. Dorf

In my Verdict column this week, I discuss the prospects for holding corrupt government officials accountable in the wake of the Supreme Court's unanimous decision in Kelly v. United States reversing federal convictions for the "Bridgegate" officials. I obliquely suggest that the Court has gone overboard (in this and prior cases) in narrowing acts of Congress that aim at corruption, even as I acknowledge a risk of over-criminalization. Here I want to briefly tie my observations on the Kelly case to yesterday's arguments in the Trump financial records cases.

Tuesday, May 12, 2020

Lawyer Highlights and (Mostly) Lowlights in the Congressional & Grand Jury Subpoena Oral Arguments

by Michael C. Dorf

The big news from today's oral SCOTUS oral arguments is that there appears to be a greater likelihood that the Court will allow the Manhattan grand jury subpoena to stand--or at least will deny Trump's categorical objections to it--than that it will give its blessing to the House committee subpoenas. The conservative Justices seemed receptive to NY County DA Carey Dunne's argument that the Manhattan case is essentially controlled by Clinton v. Jones. If the president's interest in avoiding distraction does not suffice to give him categorical temporary immunity from civil litigation, then it surely does not suffice to overcome the state's stronger interest in the vindication of its criminal law.

To be sure, Trump lawyer Jay Sekulow argued that Jones was a wholly different case because it arose in federal court. But while Sekulow was very loud, he wasn't very persuasive for two main reasons. First, the Court in Clinton v. Jones said only that it wasn't reaching the question whether a different result might obtain in (a civil case in) state court. Yes, as the Clinton Court said, the considerations of federal supremacy make such a case different, but that doesn't necessarily mean that a different outcome should result. Sekulow's argument treated the Court's express reservation of the question in Clinton as though it resolved the matter.

Second, nearly all the force was taken out of Sekulow's argument by the fact that the NY case, though originating with a grand jury subpoena in state court, was actually litigated in federal court. Some readers might be wondering how that can be. What about the Anti-Injunction Act? What about Younger v. Harris? Those are, respectively, a statute and a case affirming a judge-made abstention doctrine that typically limit the ability of federal courts to interfere with ongoing state court proceedings. Although the federal district court found Younger abstention justified, the US Court of Appeals for the 2d Circuit did not and persuasively explained why not. No one said anything about either Younger or the Anti-Injunction Act during the oral argument, and everyone took for granted that this case was appropriately in federal court and that future such cases, if any, would also result in federal court litigation rather than state court litigation to determine whether a subpoena could issue. Concerns that a state court would be insufficiently protective of the president's legitimate claims of burden or privilege accordingly rang hollow.

Overall, the NY oral argument gave the impression of the Justices moving towards a consensus that would allow the grand jury subpoenas to issue, subject only to particularized objections to be evaluated under a standard that looks to the state's reasonable need for the evidence in a timely fashion. That would be a major legal defeat for Trump but perhaps not so damaging politically, because grand jury secrecy would prevent the documents from becoming public until long after the November election.

So far as the political stakes are concerned, therefore, the real action was in the first oral argument, in the two cases involving House committee subpoenas. And there, with the possible exception of Justice Breyer (who worried about a future Joe McCarthy harassing a future FDR or Harry Truman) the tea leaves point to a potential partisan divide with Trump winning 5-4 (or 6-3 if Breyer defects). To be clear, I don't favor that outcome. And as I'll now explain, I don't think that the actual substance of the oral argument justifies it either.