Disaster Relief to States and Cities Is Both Right and Good (a Dorf on Law classic)

by Neil H. Buchanan

For my final column of 2020, I am putting a slight twist on the Dorf on Law "classic" idea by reprinting what is actually a Verdict classic.  Specifically, I have reproduced here a two-part column that first ran on Justia's Verdict on May 14 and May 18 of this year.

 

In that column, I discuss a topic that will again become a major policy issue almost immediately in the new year, with state and local governments in desperate need of infusions of federal aid to prevent an even greater economic and humanitarian catastrophe.  Amazingly, more than seven months after I published the column, Mitch McConnell and the Republicans are sticking to their absurd "blue-state bailout" rhetoric.  Even more amazingly, I and nearly everyone else turned out to be wrong in predicting that aid to states and cities would be provided before the election, simply as a matter of political self-interest by Donald Trump and his cult.  (In my mild defense, I said only that the odds were somewhat better than 50-50.)

I offer this classic column for your consideration, therefore, not as proof of my predictive powers but because these matters will soon return to Washington's front burner.  States with very red governments, including big states like Texas and my very own Florida, need these funds every bit as much as states with blue leadership like New York and California.  And so does Georgia, where voters will decide next Tuesday whether to send people to the United States Senate who would make it possible to send aid to the sub-federal governments that Republicans so frequently -- but insincerely -- extol.

Although I am still quite pessimistic about the future of this country, I do think that 2021 will be a better year than 2020.  I will even tempt fate by asking rhetorically: How could it be worse?  In any case, I wish all of our readers good health, happiness, and the blessings of life under a functioning constitutional democracy and the rule of law.

Disaster Relief to States and Cities Is Both Right and Good: Part 1 of 2

Having witnessed decades of shocking cynicism on the part of Republicans, I sometimes think that I can no longer be shocked when they become even more cynical. Senator Mitch McConnell’s decision to label federal aid to states and cities “blue-state bailouts,” however, took cynicism to a new level.

I should state up front that I did not expect to write this column. This is not because what I say here is uninteresting or unimportant, but rather because it is so surprising that Donald Trump and the Republicans have continued to shoot themselves in their collective foot by refusing to provide disaster relief even to the states that they need for purely partisan purposes.

 

Constitutional Law Final Exam 2020: The Next Pandemic

by Michael C. Dorf

[Following my custom, below I provide the exam I recently administered to my first-year constitutional law students. It's not as funny as usual. Actually, it's not funny at all. But I do think it covers a lot. The exam consists of one question with a 2500-word limit. Write your answers in the comments if you like. I shall not grade them, however, as I have no interest in a busman's holiday.]

The year is 2023. Thanks to effective vaccines, treatments, and public health measures, COVID-19 is no longer widespread. In order to improve preparation for any new threats, Congress enacts and the President signs the Pandemic Response Authorization Act (“PRAA”). Its key provisions, include:

Notwithstanding any other provisions of law,

     1. There shall be created a Public Health Emergency Action Commission (“PHEAC”) consisting of five medical doctors to be appointed by the Secretary of Health and Human Services (Secretary)  to serve for five-year terms at staggered one-year intervals, except that the initial members of PHEAC may be appointed simultaneously for terms of five, four, three, two, and one year respectively. A PHEA Commissioner may be removed by the Secretary and only the Secretary only “for good cause.” If the Secretary removes a Commissioner, that Commissioner may, within 60 days, file suit in the Federal District Court for the District of Columbia, which shall determine whether the firing was for good cause and may order the Commissioner’s reinstatement with or without back pay. Pending such an order of reinstatement, the Commissioner may take no official actions. A quorum for purposes of conducting business shall consist of three Commissioners.

     2. By majority vote of a quorum, the PHEAC may promulgate regulations to promote the public health, provided that such regulations, if enacted by Congress, would be a valid exercise of any enumerated power of Congress or necessary and proper to the carrying out of any such enumerated power. If they conflict, PHEAC regulations shall supersede any other provisions of law, such as the Religious Freedom Restoration Act.

     3. Violation of any regulation promulgated by the PHEAC shall be punishable by a fine of up to $5,000, imprisonment for up to one year, or both, unless the PHEAC specifies a lesser penalty.

Trump's Inexplicable Politicization of Masks

This is my final new column of 2020.  Professor Dorf will, as is his custom, post his ConLaw final exam tomorrow, and I plan to run a Dorf on Law classic on the 31st.  I considered writing a column for today that was shorter than usual, but it is not as though I am in a hurry to get anywhere.  In any event, Happy New Year, everyone!

 

 

by Neil H. Buchanan 

 

What to write about at the end of this horrible, horrible year?  Although there are plenty of important topics -- two of the most prominent being the probably-temporary preservation of the rule of law in the United States and the racial justice movement that rocked the country in the middle of the year -- it seems obvious that the COVID-19 pandemic will define 2020 in all of its awfulness.

It is difficult to know how many fewer people would have died this year had the United States been run by a non-sociopath, but credible estimates range well north of 200,000 unnecessary deaths.  Much of this is a matter of Donald Trump's utter incompetence, ignorance, and lack of compassion, which interacted with his pathetically short attention span to create what amounted to a deliberate dereliction of duty.  Trying to do something is difficult and can end in failure, so why try?  Failure by passivity and buck-passing got Trump through life before now, and he chose not to change in 2020, even when it meant that his own supporters were getting sick and dying.

What especially puzzles me, however, is one of Trump's very specific failures, that is, his affirmative choice to vilify the wearing of masks.  This has had disastrous effects, but what makes it categorically different from most of the rest of Trump's active and passive decisions is that it seems not to be tied to anything that he cares about.  My theory, in fact, is that this was all caused by Trump's making what amounted to an on-the-spot coin toss about whether to support mask-wearing.  Unfortunately for the world, it came up tails.

Fish, Coal, and the Symbolic Value of Dying Industries

 by Michael C. Dorf

On Christmas Eve, the European Union and the United Kingdom reached a trade deal that prevents the latter from "crashing out" of the former, albeit by a so-called "hard" rather than "soft" Brexit. The UK will still be able to export and import goods to and from the EU without tariffs or quotas, but because the deal does not cover financial or other services, London will lose a good deal of business, which in turn will undercut economic growth for the whole of the UK.

Nonetheless, under the circumstances, the deal is about the best that the UK could have hoped for. Had EU leaders allowed the UK to exit on more attractive terms, it would have thereby encouraged other countries to do the same--to obtain the benefits of union without paying any of the costs--and that could have spelled the unraveling of the EU.

The EU may yet fail anyway. The continued membership of Hungary and Poland despite their ongoing devolution into autocracy poses a threat to the very idea of the EU as a union of liberal democratic states. While that crisis awaits, let's allow our friends across the pond and on the continent at least a modest sigh of relief. The more transmissible strain of COVID-19 might keep Chunnel traffic backed up at Dover and Calais for a while, but something like normal trade between friendly countries should resume eventually, albeit now with customs stops.

The Christmas Eve deal almost did not happen and for seemingly the most illogical of reasons. As was widely reported in the last week, the final sticking point was fishing rights of EU-flagged vessels in UK waters. Because fish exports account for about a third of a percent of UK exports, it made no economic sense to allow fishing rights to derail a deal for the remaining 99.6%. So why did that almost come to pass?

The answer is not the lobbying power of Big Fish. Rather, just as support for the dying coal industry in the US (and the UK for that matter) came to symbolize concern for the people living in what were once coal-mining communities, so aggressive assertion of UK sovereignty over fishing rights came to symbolize support for the Leave voters and the ressentiment they still feel towards the Remain voters concentrated in London.

What should we make of the prominent role of symbolism in Brexit and its American cousin, Trumpism?

The Twelve Days of Trumpism

By Eric Segall & Sara Segall

Now that Christmas is around the corner, my daughter and I thought it was time to adapt a famous Christmas carol to our times. If you'd prefer hear to hear this performed live, Sara sings it here.

On the first day of Trumpism, POTUS gave to me, a con man who starred on TV;

On the second day of Trumpism, POTUS gave to me, chants of lock her up, and a con man who starred on TV;

On the third day of Trumpism, POTUS gave to me, three Fox News Justices, chants of lock her up, and a con man who starred on TV;

On the fourth day of Trumpism, POTUS gave to me, a dumb pricey wall, three Fox News Justices, chants of lock her up, and a con man who starred on TV;

On the fifth day of Trumpism, POTUS gave to me, a bigoted Muslim ban, a dumb pricey wall, three Fox News Justices, chants of lock her up, and a con man who starred on TV;

On the sixth day of Trumpism, POTUS gave to me, white supremacists are good, a bigoted Muslim ban, a dumb pricey wall, three Fox News Justices, chants of lock her up, and a con man who starred on TV;

On the seventh day of Trumpism, POTUS gave to me, rollbacks of climate regs, white supremacists are good, a bigoted Muslim ban, a dumb pricey wall, three Fox News Justices, chants of lock her up, and a con man who starred on TV;

On the eighth day of Trumpism, POTUS gave to me, pardons for no reasons, rollbacks of climate regs, white supremacists are good, a bigoted Muslim ban, a dumb pricey wall, three Fox News Justices, chants of lock her up, and a con man who starred on TV;

On the ninth day of Trumpism, POTUS gave to me, slurs for US Senators, pardons for no reasons, rollbacks of climate regs, white supremacists are good, a bigoted Muslim ban, a dumb pricey wall, three Fox News Justices, chants of lock her up, and a con man who starred on TV;

On the tenth day of Trumpism, POTUS gave to me, lies about missing taxes, slurs for US Senators, pardons for no reasons, rollbacks of climate regs, white supremacists are good, a bigoted Muslim ban, a dumb pricey wall, three Fox News Justices, chants of lock her up, and a con man who starred on TV;

On the eleventh day of Trumpism, POTUS gave to me, pay off to a porn star, lies about missing taxes, slurs for US Senators, pardons for no reasons, rollbacks of climate regs, white supremacists are good, a bigoted Muslim ban, a dumb pricey wall, three Fox News Justices, chants of lock her up, and a con man who starred on TV;

On the twelfth day of Trumpism, POTUS gave to me, Joe Biden in our Presidency!

Happy holidays and stay safe everyone!

The President's Pardon Power Is Not Absolute (a Dorf on Law classic)

Note to readers: The Dorf on Law classic column below was published on August 29, 2017.  It seems particularly pertinent in light of recent events.

 

For those of you who celebrate Christmas, may your holidays be much happier than the rest of 2020 was.  For all others, may your Thursday be much happier than the rest of 2020 was!

by Neil H. Buchanan

In what might be his most terrifying move yet (although there is plenty of competition for that dubious distinction), Donald Trump further burnished his racist credentials last week by issuing a presidential pardon to the former Maricopa County (Arizona) sheriff Joe Arpaio.

For those who have only the vaguest sense of how bad Arpaio's 24-year reign of terror was, Harper's provides a sobering list of outrages, including (but sadly not limited to) these offenses against human decency:

"[Arpaio] shot footage of female inmates that could be viewed online; forced hundreds of inmates not yet convicted of any crime to march from one jail to another in pink underwear; oversaw guards who referred to Latino inmates as 'wetbacks' and 'Mexican bitches,' strapped to a chair a paraplegic inmate and then tightened the restraints until his neck broke, and forced a female inmate to give birth in shackles." (italics added)

That is the person whom Trump has deemed a personal friend and an American hero.  Talk about being able to judge someone by the company he keeps!

As bad as the Arpaio pardon was, however, the greater worry among people who care about the rule of law -- honest conservatives every bit as much as liberals and centrists -- is that Trump might have discovered a shortcut to autocracy.

From now on, the worry goes, Trump might simply pardon people whenever it suits his purpose, directly negating the judicial branch and indirectly negating the legislative branch of government.  This might be the biggest leap yet toward a truly imperial presidency (and maybe outright fascism).

I certainly share those concerns, but I am also worried that those who oppose Trump are unilaterally disarming after the first shot has been fired.  Too many people are saying that there is nothing short of impeachment that can be done to stop Trump from turning the pardon power into a weapon of dictatorship.

Fortunately, they are wrong.  The pardon power is not absolute, and impeachment -- as merited as it already is in Trump's case -- is not the only way to respond to Trump's potential abuses of the pardon power.

Trump's Frivolous Election Litigation Was A Parting Gift To Conservative Judges And Justices: Unearned Credibility Regarding Law's Determinacy

 by Michael C. Dorf

My latest Verdict column considers a complaint that has sometimes been voiced by lawyers representing Donald Trump in post-election litigation: It's not fair, they say, that the Pennsylvania and Wisconsin Supreme Courts dismissed various of their claims on grounds of laches--that is, for coming too late--when earlier assertion of those claims would have been dismissed as unripe--that is, for coming too early. I explain that while Trump and his lawyers are shameless hypocrites, the complaint could fairly be voiced by others in different circumstances. The window for litigation really can be too tight--like an avocado that goes from hard to rotten with only the briefest period when it is edible.

Here I shall take my commentary on Trump's post-election litigation in a somewhat different direction. I offer what might at first appear to be a counterintuitive suggestion: that it was a gift to conservative jurists. By giving conservative jurists the opportunity to reject his baseless claims, Trump and his lawyers allowed those jurists and their defenders to claim vindication for the view of judges as umpires who simply call balls and strikes that John Roberts famously espoused during his 2005 confirmation hearing to become Chief Justice. 

Before fully explaining that idea, however, I want to be clear that I am sincerely grateful to all of the judges and justices who resisted the nonsense offered by Trump and his terrible lawyers. Trump has been encouraging his followers to threaten violence against all manner of federal, state, and local government officials, including judges. Under such circumstances, it takes genuine courage to follow the law and do one's job. In pointing out that Trump has inadvertently provided conservative jurists with a gift, I do not in any way mean to deny that those same jurists displayed real backbone and patriotism by not succumbing to his threats.

Maybe Getting 74 Million Votes Is Not Particularly Impressive

Note to readers: Before turning to my column for today, I want to provide a link to Professor Dorf's new Verdict column, which was published this morning: "Odysseus, Avocados, and Election Litigation Timing."  The column discusses yet another after-the-fact Supreme Court filing by the losing Trump campaign, with Professor Dorf focusing in particular on the doctrine of laches, which denies relief when a case was filed unreasonably late.  He also argues that the opposite doctrine, ripeness, should be loosened, for reasons that I encourage readers to discover by reading the piece.

I cannot resist adding a comment that is consistent with Professor Dorf's analysis.  The Trump team's current claim is that they are not too late because Biden has not yet been inaugurated.  Only then, they say, will it be too late.  But why should we take them seriously?  They spent the first five weeks after Election Day saying that they had plenty of time before the Electoral College's vote on December 14, at which point it would be too late.  Then they moved on to January 6, the day that both houses of Congress will formally accept the electoral votes.  Not even waiting until that failed, they now say that January 20 is the day.

 

I fully expect them to argue after January 20, however, that their inevitable further challenges are even more timely, because the country will at that point have a president who is -- in their fevered minds -- not legitimately elected.  No laches apply, they seem sure to argue, because every day under Not-President Biden is another day in which Americans must suffer the consequences of a China/Venezuela-inspired stolen election.  No day will be a drop-dead date for these people, and they will want to re-litigate this forever.

By Neil H. Buchanan

If it is healthy to stop and ask whether one's most sincerely held beliefs need to be reassessed, it must also be healthy to ask whether one's reassessment should itself be reassessed.  That is where I find myself today with regard to my response to the number of people who voted for Donald Trump in the 2020 election.  In 2016, his vote total was 62,984,828, just a hair under 63 million.  In 2020, his total was 74,216,747, or almost eleven-and-a-quarter million more than last time.  That is, to put it mildly, disheartening.

Many have noted that Trump seems obsessed with how big his number was this time around.  When Senator Mitch McConnell at long last recognized President-Elect Joe Biden's win, Trump frantically tweeted that McConnell should remember Trump's "75 million votes."  Not only is that a generous round-up of the total (consistent with adding imaginary floors to Trump Tower and imaginary people to Trump's 2017 inauguration non-crowd), but it is among the weirdest one-sided invocations of data that I have ever heard.

Late-night comedian Seth Meyers captured it best, saying that this would be like Trump hearing a word problem in high school algebra but not waiting for the whole question.  Q: "Suppose a train leaves the station at 120 miles per hour, ..."  Trump interrupts: "Oh, wow, that's a fast train.  There are no other trains that are that fast."  Q: "... and a second train leaves the station at 130 miles per hour."  Trump: "Oh, forget about that other train.  My train is fast!"

That is both hilarious and accurate in lampooning Trump, of course.  Joe Biden received 81,268,867 votes, 7+ million more than Trump.  But Trump is impressed with his 74.2 million, and he is convinced that this is what McConnell should care about.  My question today, however, focuses on the question of whether Trump's number -- which is the second-highest number of raw votes ever received by an American presidential candidate -- is meaningfully "big" in the way that most pundits quickly decided that it is.

 

Short answer: Probably not.  There is a statistical apples-to-oranges problem that is leading people to overstate Trump's influence in a way that could distort political discussions going forward.

 

126 Legal Novices or the New Republican Normal? What Comes After Trump?

by Sidney Tarrow

On December 11th, 126 Republican members of the House of Representatives signed an amicus brief to the United States Supreme Court in support of the State of Texas’s complaint that the votes of four states in the Presidential election should be declared invalid because of supposed electoral irregularities. Texas’ suit was quickly slapped down by the Court. Two Justices, Alito and Thomas, thought the Court should have docketed the case because, in earlier, lower-stakes cases, they had expressed the quirky view that the relevant statute confers on the Court no discretion to reject such “original jurisdiction” suits.  But even Alito and Thomas joined the other seven justices in voting to deny Texas the extraordinary intervention it sought. Although Texas cited The Heritage Foundation’s study of electoral fraud (cit., pp. 11-12) as an authority, even conservative lawyer Hans Von Spakovsky wrote shortly after Texas filed its case, “this is the legal equivalent of a Hail Mary pass.”

No serious analysis of the Texas suit gave it any chance of getting through the Supreme Court. But the case raises a different kind of issue: who were the 126 members of the House who went on record in support of Texas’s case? Were they legal nonentities who were willing to become mouthpieces for one of the most outrageous legal/electoral theories since the 1876 Hayes/Tilden standoff, or were they the heart of a new and more frightening post-Trumpian right?

There Will Be (More) Blood (a Dorf on Law classic)

Note to readers: This is the first of this year's "classic" columns, allowing Dorf on Law's pixel-stained wretches to take some scattered days off during the holidays while giving interested readers an opportunity to read or re-read some of our favorite columns.  We do not entirely go on vacation for the holiday season, however, so you can expect to see many new columns as well as a few classics over the next two weeks.

Although we typically choose somewhat older columns for our classics series, the column below is rather recent, published on October 20, two weeks before Election Day.  Since then, as the column predicts, there has been even more pro-Trump violence and threats of violence.  Some states were forced to deploy extraordinarily high levels of security simply to allow their electors to vote on December 14.  Trump's dead-enders will lose their challenges on January 6.  What will his most bellicose supporters do after that gambit fails?

by Neil H. Buchanan 

 

Weirdly, Donald Trump has recently altered his stream-of-consciousness speeches at his rallies to include musings about the possibility of losing the 2020 election.  He has even talked about leaving the country, which has provided no end of delight to late-night comedians and pundits.  But does this mean that he is actually preparing for the possibility of losing and -- gasp! -- admitting that he has lost, followed by a peaceful exit from the White House?

 

Would that it were so, but we need to remember that we are talking about a person with an incredibly short attention span who leaves not even the most fleeting thought unspoken.  That he has apparently occasionally considered that he might lose the election tells the world nothing about what he will do if (when?) the time comes.  He has put in all kinds of spadework to allow his claims of voter fraud to take root and ultimately blossom, and his legal team has already spent ungodly amounts of time trying to suppress votes in Texas, Pennsylvania, and elsewhere.  Trump's tossed off musings about losing mean nothing.

Most importantly, the biggest story continues to be that Trump simply cannot stop encouraging his most extreme supporters to be ready to support him with violence.  Blood has already been shed because of Trump this year.  Shockingly but not at all shockingly, he seems to want more blood to flow.

Standing Outside the Law: Of Incoherence and How Legal Sausages are Made

 By Eric Segall

The doctrine of standing has been in the news recently because the Supreme Court dismissed the lawsuit by the State of Texas against the four swing states due to lack of standing, and because Donald J. Trump tweeted about how unfair it was that the case was dismissed because of the doctrine. Of course, there is no reason to think Trump understands anything about standing law, but then again few people do, and for good reason.

Of all the constitutional issues I have studied over my 30 years as a law professor, the Court's standing doctrine is the most incoherent. I have yet to meet a federal jurisdiction scholar, liberal, moderate, or conservative, who defends the various aspects of standing doctrine as currently articulated by the Supreme Court. This post discusses one corner of that doctrine because it illuminates well its utter incoherence and provides a behind-the-scenes account of how one landmark standing case was decided. We can see how at least one standing sausage was made, and it is not a pretty picture.

The Serious Side of Silly Political Theater: Republicans' Challenges to Biden's Electors on January 6

by Neil H. Buchanan

Mitch McConnell made news yesterday by acknowledging on the floor of the United States Senate what every sane person has known for weeks: "Today, I want to congratulate President-elect Joe Biden."  This is a big deal only because McConnell had insisted on silently abetting Donald Trump's attempted coup over the past six weeks.  Even so, it is important because McConnell could have chosen to continue to be silent -- or even suddenly to adopt a vocal stance in favor of Trump's madness.  So this is good.

Of course, McConnell used some strategic wording.  I was particularly annoyed that he described the election in this way: "The Electoral College has spoken."  I am not saying that this is false.  Indeed, the Electoral College's vote was the precipitating event for McConnell's long-delayed acknowledgement of reality.  Even so, he could instead have said: "The people have spoken."  Or at least something like this: "The Electoral College has reflected the will of the people under the law."

 

But given that McConnell is the leader of a party that has lost the popular vote in seven of the last eight elections, winning two of those only because of the anti-democratic design of the Electoral College, he apparently thinks it important to say that what matters is that the Electoral College has spoken, not the people.  If, as I have recently predicted, Republicans at the state level now try to make it easier than it was in 2020 to overturn the will of the voters to appoint non-majority-backed Republican electors in 2024 and beyond, McConnell cannot afford to be heard to say that the people's will matters.

This means that even McConnell's grudging acceptance of reality references the basis for future minoritarian rule.  He also is surely going to do everything possible to block Biden's nominees for the judiciary and executive branches, to strangle the economy, and so on.  Mitch gonna Mitch.

Even so, McConnell did reportedly make another surprisingly positive decision yesterday, which was to tell/beg his fellow Senate Republicans not to go along with Trump's attempt to use the January 6 ceremonial congressional counting of votes as a last stand.  What is that all about, and what if McConnell fails to keep everyone in line?

Stephen Miller's Soviets: From Alternative Facts to Alternate Electors

 by Michael C. Dorf

Yesterday, Stephen Miller crammed himself into the clown-car of sycophants making absurd claims on behalf of the would-be Clown-Tyrant-King Donald I. With a claim as deranged and dangerous as any to have oozed out of the skull of Rudy Giuliani or to have emerged from the depths where Sidney Powell's Kraken lurks, the immigrant-hating Goebbels look-alike announced on FoxNews that in multiple states that Trump lost, "alternate slates" of electors were getting together to vote for Trump anyway.

Students of history will recall that such alternative assemblies have played a key role in revolutionary challenges to the established order, usually stating some pretext of a claim to lawful authority. For example, the 576 French citizens who took what came to be known as the "Tennis Court Oath" lacked the power to declare themselves the National Assembly under the rules of the ancien régime; they claimed authority in virtue of the fact that together they comprised all but one member of the Third Estate, barred from their ordinary meeting chamber by soldiers loyal to Louis XVI. Despite the self-described National Assembly's weak claim to existing authority, its actions were followed in less than a month's time by the storming of the Bastille. Louis XVI went to the guillotine three and a half years later.

Unlike the National Assembly circa 1789, Trump's bogus electors are not even the rump of a lawful body. The Trump electors are more like the "soviets"--workers' councils that played a role in the 1905 and 1917 Russian Revolutions despite initially having no legal claim to political power. If one were to rank these unlawful assemblies in order of most to least legitimate authority, the French National Assembly would outrank both the early soviets and the Trumpian alternate electors. But that ranking hardly matters. There is no threshold of legitimacy under the old regime that one must cross in order to establish a new one. The most dubious legal claims to power backed by unlawful force can generate regime change because, during a revolution, might makes right.

Repairing Our Damaged Constitutional Guardrails

 by Ronald J. Krotoszynski, Jr.

As the Trump Administration goes noisily into its death throes, it would be comforting to think that things quickly will return to normal after Joe Biden takes the oath of office at noon on January 20, 2021.  Such a happy assumption might prove to be unduly optimistic.

It’s awfully hard to put Humpty Dumpty back together again after he tumbles from his wall-side perch.  In this instance, “Humpty Dumpty” represents the numerous constitutional norms, conventions, and traditions that Trump and his enablers, both within the Executive Branch and the Congress, have systematically shredded over the past four years.

Norms, conventions, and traditions are the tendons that keep our skeletal constitution functioning – and if you lose the tendons, the bones no longer function properly.  Accordingly, as we approach the post-Trump era, one of the structural problems that legal scholars, government officials, and lawyers all need to think about carefully is whether it's prudent for the United States to continue to rely on soft rules (norms, conventions, traditions) as our primary brakes against the gross abuse of political power.  Since taking office in 2017, Donald Trump and Mitch McConnell have taught us a very important lesson:  Non-binding norms and conventions do not actually constrain power very well if those holding office harbor few, if any, compunctions about ignoring them.  The problem is seriously compounded when the government officials ignoring these soft law rules pay no electoral price whatsoever because the base of voters of one of the two major parties simply does not care whether the President plays by the rules that prior Presidents and Congresses have observed.

Kamala Harris's Senate Presidency as Merely One Example of Constitutional Audacity

by Neil H. Buchanan

 

Today's question is: How should we respond to seemingly outrageous legal assertions that would be helpful to our side?  The Democrats' answer has almost unerringly been: "Oh, we dare not.  The voters will punish us, the pundits will shame us, and our friends across the aisle will refuse to work with us."  The Republicans' answer, more and more, has been: "Let's do it!  We can brazen this out, and we'll get what we want.  It worked before, and it will work again.  We've proved it over and over."

 

With that as the broad framework, my column earlier this week discussed one such seemingly outrageous legal assertion.  There is only one constitutional statement regarding the leadership of the Senate, which is that the Vice President is the presiding officer of that house of Congress.  Moreover, the leadership norms that have governed the Senate in our lifetimes are not even set by statute, much less in the Constitution itself.  They are truly norms.  Thus, I argued, the Democrats could (but probably will not) employ a Republican-style breaking of norms by having Vice President Kamala Harris refuse to recognize Mitch McConnell as the person who actually dictates the business of the Senate, including most importantly the determination of which items of business receive floor votes.

 

[Aside: None of this will be relevant, of course, if both Democrats in Georgia win their runoff elections on January 5, 2021.]

The very nature of seemingly outrageous ideas is that they seem so outrageous.  Thus, pretty much any B+ or better law student can explain why -- based on current understandings of the law -- an outrageous idea cannot possibly fly.  A good example of this was provided on the comments board of my column three days ago, where some readers offered analyses with which I would normally completely agree and which are, in fact, most likely the best and most obvious readings of the law.  I do not mean to disparage those comments by calling them obvious, but the whole point of this exercise is to think about when obviously wrong legal arguments are somehow not quite so sure to fail as we might think.

This is going to become an ever more pressing question, because McConnell and the Republicans are already making clear that they will try to get away with anything that they can to stymie Biden and the Democrats.  In such circumstances, even arguments that seem outrageous need to be on the table.  But how do we know what will actually work?  Short answer: No one knows, but that is why trying -- and even simply talking about trying -- matters.

 

New State of Dorf on Law v. Donald J. Trump

 By Eric Segall

In light of a real brief filed in the real lawsuit of Texas v. Georgia, et. al., on behalf of the States of New California and New Nevada, the New State of Dorf on Law has filed its own lawsuit in the federal district court of New York. Here is the complaint:

-----------------------------------------------------------------------------------------------------------------------------

The State of Dorf on Law (“Plaintiff”) hereby files the following lawsuit against the President of the United States Donald J. Trump in his official capacity:

Count I: Said President has used his office to abuse social media in ways causing intentional infliction of emotional distress to people residing in all fifty real states and the imaginary states of New Nevada and New California. Plaintiff hereby requests class action relief under Rule 19 of the Imaginary Rules of Federal Civil Procedure. 

Count II: Said President deliberately withheld needed medical care from over 300,000,000 Americans thereby violating Article 12 of the New Constitution prohibiting "deliberate indifference to a world-wide pandemic by the President of the United States."

Count III: Said President has attempted to coerce state election officials to disregard millions of legal votes in violation of Article 13 of the New United States Constitution which prohibits any Executive Branch Official from using his or her office to "interfere in both real and imaginary state election processes." 

Count IV: Said President held numerous secret and unrecorded conversations with his friend and ally President Putin of Russia (or perhaps of the now-imaginary-but-once-too-real Soviet Union), thereby violating Article 14 of the New Constitution prohibiting "conversations between the President and other world leaders without at least one other person present."

Count V: Said President has used his office to secure profits for his personal properties across the globe in violation of Article 15 of the New Constitution prohibiting the President of the United States from "using his position of authority to line his or his families’ pockets with ill-gotten gain."

Count VI: Said President has lied 1,276,345 times while in office, thereby violating Article 16 of the New United States Constitution prohibiting "any Executive Branch Official from continuing in office after telling 1,000,000 lies or more."

Count VII: Said President has placed his immediate family members in positions of unauthorized political responsibility in violation of Article 17 of the New United States Constitution which prohibits "any family member of the President from holding a position of trust and authority under the United States without the advice and consent of the New United States Senate comprised of Senators from both real and imaginary states."

Count VIII: Said President has used a private media corporation to place fake news in front of the American people from 6- 9 am and 8:00-11:00 pm each weekday in violation of Article 18 of the New United States Constitution prohibiting any Executive Branch Official from "seeking direct assistance from any media company without disclosing such direct connection and seeking a license from the New Federal Communications Permission Commission."

Count IX: Said President allowed the Federalist Society to choose all his federal judges thereby violating Article 19 of the New Constitution prohibiting the "off ramping of Executive Branch responsibilities to non-Executive Branch personnel."

Count X: Said President has made the United States of America the laughing stock of the entire planet by simply opening his mouth on a daily basis in violation of Article 1/2 of the New Constitution prohibiting "any Executive Branch Official from holding office if said official is living in an alternate reality."

Plaintiff seeks no damages, compensatory or punitive, but simply an injunction exiling said President to Shawshank Prison for the rest of his natural and imaginary lives.

Texas SCOTUS Original Jurisdiction Lawsuit Would Undercut Marbury v. Madison

 by Michael C. Dorf

On Tuesday, the State of Texas filed a lawsuit ostensibly within the Supreme Court's original jurisdiction, naming the states of Georgia, Pennsylvania, Michigan, and Wisconsin as defendants. Texas argues that executive and judicial officials in these states violated Article II, Section 1 of the Constitution when they construed their respective state laws in a way that, according to Texas, departed from the supposed constitutional rule that when that provision assigns to state legislatures the power to decide the manner of selecting Presidential electors, it excludes a role for other organs of state government. As I have noted before and as U Illinois Law School Dean Vikram Amar argues extremely persuasively in a new article, although various Justices have expressed support for this "legislatures only" theory, which builds on a three-Justice concurrence in Bush v. Gore, it is very ill-conceived and should be rejected in some future case.

But not in this case. Even if one accepts the legislatures-only theory arguendo, the Texas lawsuit is meritless. Every judge to consider similar claims in state and lower federal courts has concluded that, absent very credible evidence of widespread fraud (and there isn't anything resembling such evidence), remedying allegedly ultra vires election rules set by state executive or judicial officers should not entail "disenfranchising millions" of voters who cast their votes in good-faith reliance on those rules. That's a quote from the thorough and persuasive Third Circuit opinion by Judge Bibas, a Trump appointee. That  opinion also offers multiple additional reasons why the Trump campaign was not entitled to relief, many of which apply with even greater force to the Texas original jurisdiction case now at the Supreme Court.

Accordingly, I have no doubt that the Texas lawsuit will fail. Here I want to offer some thoughts about how it should fail.

Justice Scalia's Legacy as Irony: Reviewing Ed Purcell's Antonin Scalia and American Constitutionalism

 By Eric Segall

"The most fundamental significance of Scalia's career and jurisprudence lies in the way and extent to which they illustrated the changing, dynamic, and inherently goal-and value based nature of American constitutionalism itself, its truly living nature."

Justice Scalia used to tour the United States arguing that the "Constitution is Dead, Dead, Dead." He detested what he saw as the judicial lawlessness of the Warren/Burger Court's eras and he claimed to follow a different path devoted to the study of text and history, not the imposition of value judgments by a "committee of nine lawyers." 

Yet, when Scalia's thirty years of jurisprudence are examined carefully without the trappings of the late Justices' barbs, quips, and talking points, it turns out, as Professor Ed Purcell shows in his new book, "Antonin Scalia and American Constitutionalism," that Scalia's legacy demonstrates that he could no more avoid living constitutionalism than any other Justice. For all his unyielding rhetoric about originalism as the only true method of constitutional interpretation, Scalia's career shows that pluralistic decision-making was the true hallmark of his judicial method.

This is not news to most academics who have studied Scalia, but Purcell's book is a wonderfully comprehensive and devastating critique of Scalia the Justice. In time, I hope this book play a major role in dispelling the myths surrounding Justice Scalia so that we can stop pretending this man was a principled or even honest Supreme Court Justice.

Harris Will Be McConnell’s Boss: Hardball Is Hard

by Neil H. Buchanan

More than anything else, Mitch McConnell's actions as Senate Majority Leader have demonstrated that he will do everything that the law allows him to do.  Everything.

 

It does not matter whether there is a standard, norm, or tradition that he is breaking.  It does not matter whether he loses a few news cycles to hostile coverage of his shamelessness.  It does not matter whether he completely contradicts something that he said or did in the past.  The only thing that matters is that he will maximize his side's advantage under the most extreme reading of the law's bare limitations.

 

Now, McConnell faces the prospect of serving under a President and Vice President who are Democrats.  McConnell and the Republicans are already making it clear that they will be as obstructionist as possible, gumming up appointments to Biden's cabinet and possibly blocking all of his judicial picks.  Democrats are understandably eager to win the two Georgia runoffs for U.S. Senate seats, which would give control over the Senate to the Democrats under new Majority Leader Chuck Schumer.  Without a Democratic Georgia sweep, McConnell would hold all the cards.

Actually, that is only true if the Democrats let it happen.  Under the McConnell Theory of the Political Universe, where only the most rock-solid legal principles are binding, Democrats could control the Senate even when they are in the minority.  How would that work?  More importantly, would Democrats do what is needed, and how would Republicans react?

 

Trump's Brand of Tough-Guy Victim Is A Toxic Mix of Confederate Lost Cause Revanchism and Bernhard Goetz Vigilantism

 by Michael C. Dorf

For years, conservatives have criticized those on the left who ground claims for money, status, and other goods in victimhood. The criticism has two strands. First, focusing on victimhood is said to be counterproductive. If you think of yourself as a victim, you will undercut your ability to achieve. Second, claiming victimhood is said to be unfair to the non-victims who are asked to pay the price of repair even if they were not among the perpetrators. Conservative complaints about race-based affirmative action unite these two objections, but so do other complaints, including the mocking of liberal "snowflakes" on college campuses and elsewhere.

Given the right's disdain for victimhood-as-moral-high-ground, how do we explain the continued embrace of Donald Trump's self-pitying sore-loserism? We can see the beginning of an answer in a statement Trump made during his Georgia rally on Saturday night: "We're all victims. Everybody here--all these thousands of people here tonight. They're all victims, every one of you." As a malignant narcissist, Trump lacks empathy for others, but as a practiced con-man, he is skilled at inducing his followers to identify with him. Thus, for Trump's loyalists, if Trump is a victim, so are they.

Yet that is only the beginning of an answer, because we still don't have an account of why people who regard claims to victim status as worthy of disdain want to think of themselves as victims. Human psychology supplies most of the rest of the answer. We are all hypocrites and projectionists, hating in others the very flaws we allow but refuse to acknowledge in ourselves.

Beyond general psychological traits common to all, Trump offers a particularly attractive--highly toxic and racist--account of victimology that unites the Southern "Lost Cause" mythology of the Civil War with more recent experience as personified by Trump, who entered the public eye in New York City in the 1980s and thrust himself into the center of every race-fueled episode of the time.

Were You Lying Then Or Are You Lying Now? A Thought Experiment Based On A Possible Prosecution Of Donald Trump

 by Michael C. Dorf

What fate awaits Donald Trump after he vacates or is forcibly removed from the White House at noon on January 20, 2021? Federal prosecution is a possibility, although Professor Eric Posner raises questions in a NY Times op-ed yesterday about whether Trump has committed federal crimes and even if so, whether prosecuting him would be politically unwise. There is also a chance that Trump would attempt to pardon himself--which, as Professor Buchanan argued here on the blog yesterday, shouldn't work but we can't say for sure because no prior President has had the audacity to try). Or, as Prof Buchanan also explained, Trump might purport to pardon himself, resign the presidency on January 19, and then receive a pardon from Mike Pence after he's sworn in for his one-day presidency. In this scenario Trump would want to pardon himself first as an insurance policy in the event that Pence double-crosses him by failing to issue the pardon--an admittedly low-probability event, given Pence's eager self-abasement over the last four-plus years and need not to anger the Trump base in the event that Pence makes his own presidential run at some point in the future.

Even assuming a legally effective pardon, the lack of evidence of a federal crime, or a political calculation prevents federal prosecution, none of those factors is an obstacle to state prosecution for alleged financial crimes unrelated to Trump's official conduct as President. A presidential pardon does not affect potential state law criminal prosecution; the evidence of state financial crimes would not be vulnerable to whatever weaknesses exist in a potential federal case; and neither New York Attorney General Letitia James nor Manhattan District Attorney Cyrus Vance, Jr. need worry about national political fallout.

Meanwhile, recent reportage suggests that Trump might be prosecuted in NY state court for financial crimes. I obviously have not reviewed the evidence, so I don't know how likely that is. Accordingly, for the balance of today's post, I'm going to discuss a hypothetical case involving a defendant I'll call Ronald. It's based on allegations against Trump, but my interest in it is broader. I'm going to use Ronald's hypothetical case to discuss what I regard as an oddity in the criminal law--how defendants might invoke the individuation of crimes in the criminal code to evade criminal liability in a certain class of cases in which their criminal conduct is proven to a 100 percent certainty.

Self-Pardons, Risk Aversion, and Prosecutorial Discretion

by Neil H. Buchanan

It is completely sensible, even urgent, for responsible actors to treat the ongoing Trump-didn't-lose circus not only with contempt but with condescension.  It is essential to reinforce the fact that Joe Biden won the election, that the election in every state was fairly administered, and that all of Trump's remaining legal options are somewhere between frivolous and treasonous.  "Donald Trump, whether he likes it or not, will stop being president on January 20, 2021," is the right thing to say.

That is not the same thing, however, as ignoring the very real dangers that Trump and his supporters are creating and inflaming.  A Trump lawyer says that the former cybersecurity chief "should be drawn and quartered. Taken out at dawn and shot."  Another says that the Republican governor of Georgia should be harassed until he agrees to violate the law and negate Georgia's election results, at which point the governor is supposed to resign, followed by having Trump "lock him up."  Now-pardoned former Army General Michael Flynn calls for "limited martial law to hold new election."  And Trump performs a direct-to-Facebook rant about every grievance under the sun.

Everyone who says, as we must, that these tactics will not work knows that we are deliberately engaging in an exercise in wish fulfillment.  It is admittedly a high-probability wish, but it is even now still not certain that the pressure being applied on a wide range of people will not pay off for Trump.  It is not over until it is over; and because so much of what must happen takes place in steps over the space of many weeks, it is never quite as over as it might appear.  And at best, we are now reduced to hoping that no one will die from Trump-inspired fury and that the seething rage "only" results in scorched-earth political opposition to the Biden/Harris Administration.

Even so, I will allow myself here to be optimistic and imagine that the ongoing attempted coup will fail, that Trump will be out of office soon, and that there are mere constitutional and legal issues that need to be worked through.  (I say "mere" to distinguish those issues from literal life-and-death questions that currently loom over us.)  The most consequential of those questions is what will happen to Trump and his associates regarding their potential criminal liability.  We can start with the issue of presidential pardons.

Under-reacting to SCOTUS Theocracy

 by Michael C. Dorf

In a recent op-ed in USA Today, Professor Laurence Tribe and I argued that last week's SCOTUS ruling in Roman Catholic Diocese of Brooklyn v. Cuomo, and especially Justice Neil Gorsuch's concurrence in the case, should raise alarm bells for those who care about imposing very high costs on the American public in order to accommodate or even write into law the views of traditional religious conservatives. We were especially concerned by the juxtaposition of how Justice Gorsuch bent over backwards to find illicit discrimination against traditional religion while essentially mocking a line of cases that provides the bedrock for reproductive rights. We concluded our essay with a literary allusion: "A court that affords no protection to unenumerated rights to bodily integrity and privacy, while simultaneously eroding the separation of church and state would look less like our familiar institution and more like the highest judicial authority of a place like Gilead — the theocratic and misogynist country in Margaret Atwood’s dystopian 'The Handmaid’s Tale.'"

The overwhelming majority of responses I saw to our op-ed were supportive, but some were not. For example, UVA Law Professor Julia Mahoney on Twitter said that Professor Tribe and I needed "to get a grip and calm down" because there's no "sympathy for a 'Gilead' style theocracy among any of the Justices." Yet that response mostly takes issue with our metaphor about the end point of the Court's current path. We did not mean that the result in Roman Catholic Diocese was reminiscent of Gilead.

But enough about the suggestion that Professor Tribe and I overreacted to Roman Catholic Diocese. Here I argue that the bigger problem is under-reaction. People who should know better--like Professor Cass Sunstein--as well as people who don't know any better but nonetheless have a large platform--like NY Times columnist Bret Stephens--have written oddly laudatory accounts of the case. I'll consider the defenses of Roman Catholic Diocese from weakest to strongest, beginning with Stephens, moving to Sunstein, and then concluding by discussing a thoughtful (but still wrong) NY Times op-ed by Professors Michael McConnell and Max Raskin.

The Somewhat Slower Unraveling of Constitutional Democracy

by Neil H. Buchanan

 

Just over four years ago, I warned that Donald Trump's 2016 Electoral College victory could represent an "extinction event" for constitutional democracy.   The purpose of a warning, of course, is to offer people the opportunity either to prevent or at least prepare for the consequences of something bad.

 

In the ensuing years, I have at times (e.g., here and here) suggested that the United States is in fact a "dead democracy walking," which would mean that it is too late to prevent disaster.  Sadly, this is still true, even if Joe Biden takes the oath of office next month.  The death throes will most likely take a few more years to play out, for which we should all be grateful, but there is no reason to be hopeful that we have restored America and ended Republicans' authoritarian threats going forward.

 

If we are too far gone to prevent the worst from happening -- if the end is only a matter of time -- then the best we can do is to prepare for what is inevitable.  The beginning of such preparation is a clear-eyed assessment of where things stand, understanding why it seems certain that things will still turn out badly.

 

Richard Epstein's Laffer Curve of Death

by Michael C. Dorf

With COVID-19 cases and deaths in the United States setting daily records, this seems like an appropriate time to check in on NYU Law Professor and libertarian public intellectual Richard Epstein. Recall that back in March, Epstein wrote a column for the Hoover Institution website condemning what he thought was shaping up to be a governmental overreaction to the pandemic. In that column, Epstein predicted that even without substantial government interventions, the total number of COVID-19 deaths in the United States would be around 500. Shortly thereafter, Epstein acknowledged what he called a "stupid gaffe." He should have said 5,000 U.S. deaths and 50,000 deaths worldwide. The original column was thus corrected (at least twice).

Yet, as I explained in an essay shortly after Epstein published his analysis, even his "revised estimate [wa]s still probably at least two orders of magnitude too low." I wish I could say that I was wrong, but it is now clear that I was right. Each power of ten is an order of magnitude. Epstein predicted US deaths in the four figures and global deaths in the five figures. We have already experienced US deaths in the six figures and global deaths in the seven figures. As I predicted, even after correcting for his self-diagnosed stupidity, Epstein remained two orders of magnitude off.

We know from Bob Woodward that as early as February, Donald Trump chose to downplay the COVID-19 risk. But we also know that Trump is mercurial and thus might have been led by advisors to take more aggressive steps if they had persuaded him that controlling the pandemic would actually boost the economy over a several-month period and thus benefit him politically. That didn't happen, however, in part because, as the Washington Post reported, "[c]onservatives close to Trump and numerous administration officials [were] circulating" Epstein's article playing "down the extent of the spread and the threat."

Epstein cannot be blamed for all of the deaths and long-term illnesses that the U.S. has experienced in the last eight months. Even countries like Germany that took more aggressive measures in the spring were hit by a second wave this fall. However, Germany has experienced a per capita death rate of less than a fifth of the rate in the U.S. And some other developed countries--like Taiwan, South Korea, and Japan--have done even better. The Trump administration's insufficiently aggressive policies and Trump's active undermining of state and local public health measures are surely responsible for countless thousands of excess death and suffering in the U.S. One would think, therefore, that Epstein would regret whatever role his erroneous analysis played in contributing to all that death and suffering.

Yet so far as I have been able to determine, Epstein has made no public expression of remorse, despite continuing to maintain a public profile. Perusing Epstein's written and audio output over the last several months, one finds him stating views on all manner of questions. He can be seen denying that institutional racism is a problem in the U.S., pronouncing Trump the better choice than Biden, and then, following the election, lamenting the incoming Biden administration's plans to take climate change seriously. It's possible that buried within one of Epstein's columns or podcasts there is a mea culpa for the role he played in killing thousands of his fellow citizens, but if so, I missed it. Epstein certainly has not made any priority of a public expression of remorse.

Giving Thanks when Thanks are Hard

 By Eric Segall

Thanksgiving has always been a special time for my family. My mother's birthday was November 22, and my parent's anniversary was November 25. My mother passed away a few years ago but my dad is still going strong at 91. Thanksgiving was our one sacred time time together when my brother and sister's families as well as mine would all get together with our parents. This is the first Thanksgiving I won't spend with my siblings and at least one of my parents in decades. Like millions of Americans we will zoom, but it will not be close to the same. Giving thanks can be hard.

Nothing in 2020 has been the same. Trump, the pandemic, George Floyd, and numerous other sad events have changed our lives dramatically. There has been a twitter saying since shortly after Trump was elected that "there is no bottom." That is true of Trump and his enablers, but not for America, and eventually the pandemic will pass and racial injustice will slowly get better. 

So even though is is hard, I'd like to say in this post what I am thankful for in addition to of course my family, friends, and colleagues. Without them, there really would be no bottom, especially my family. Lynne and my three daughters make me smile every day, and they have been amazing during these arduous 8 months or four years depending on how you count.

Doing One's Job Is Not A Low Bar In Times Of Crisis

by Michael C. Dorf

As Thanksgiving approaches, I want to express sincere gratitude to Republican public office holders who carried out their legal duties despite enormous pressure to participate or acquiesce in Donald Trump's scheme to end American constitutional democracy. The list is long and includes a great many people whose names are not widely known (a fact for which they are no doubt grateful). Most prominent among those whose names we do know are: Georgia Secretary of State Brad Raffensperger; Philadelphia City Commissioner Al Schmidt; Michigan Vice-Chair of the Board of State Canvassers Aaron Van Langevelde; the four Republicans on the five-member Maricopa Board of Supervisors; Federal District Judge Matthew Brann; and US Senators Susan Collins, Lisa Murkowski, Mitt Romney, and Ben Sasse. Thank you to all of them and to everyone else who put duty first.

In recent days I have seen it said that one should not be praised simply for doing one's job--that this is too low a bar. I strongly disagree. When a mob led by the US President threatens your livelihood, your life, your home, and your family, it takes enormous courage to do one's job with honesty and integrity. We rightly deem soldiers who do not flee in the face of the enemy brave, even though desertion under fire would be unlawful. Likewise here.

Trump Has Damaged His Followers' Ability to Make and Understand Reasoned Arguments

by Neil H. Buchanan

 

Back in June of 2016, I pointed out that Donald Trump had created an entirely argument-free version of political campaigning.  I compared and contrasted Trump's type of logical error to the standard Republican type of logical error.  Although I did not at that point use these labels, it makes sense to contrast Republican illogic with Trumpian non-logic.

The difference is that Republicans typically have at least a story to tell that connects premises to conclusions.  Referring to the example of the infamous Laffer Curve, I noted that the Republican argument goes like this: "Tax cuts cause people to want to work more and businesses to expand, so the economy grows, and indeed it grows so much that total tax revenues rise despite the lower tax rates on each dollar in that expanded tax base."  Could be true.  Not true, at all, as proved again and again and again; but could be true.  They are being illogical because they insist on repeating the story notwithstanding its having been debunked.  It is, in Paul Krugman's memorable description, a zombie idea.

 

In contrast, Trump says things like this: "We're going to have a tremendous new health care plan that will cover everyone and be much cheaper."

That non-logic is not testable or subject to logical investigation, because there is nothing to test and verify -- except to note that the magical plan never materializes, as a matter of empirical observation.  And speaking of reality, Trump also became famous for saying things that are demonstrably untrue even in the moment, refusing to retract or correct even when called on his detachment from reality.

 

From claiming to have signed laws that were passed before he took office to falsely claiming that the Dominion voting machines company is owned or influenced by the Radical Left (which is who, exactly?), Trump simply says that up is down and night is day.  Those infamous alternative facts, after all, were not limited to crowd size but even included lies about the weather.

Now, we are seeing how Trump's huckster-inspired strategy of skipping past logic and evidence, and simply choosing to live in a reality-resistant "It's true because I say so" universe, has affected his followers.  Every day it becomes more and more ridiculous, and more and more dangerous.

A Good-Faith Exception for Unlawful Voting

by Matthew Tokson

On Saturday, eight Republican electors in Pennsylvania sued in state court, asking a judge to throw out all 2.5 million Pennsylvania mail-in votes. The plaintiffs claim that Pennsylvania’s 2019 mail-in voting law is unconstitutional because the Pennsylvania Constitution implicitly limits absentee voting to specific circumstances. Similar suits have been filed in several other jurisdictions. Rudy Giuliani’s federal suit currently on appeal seeks to invalidate all 6.8 million Pennsylvania votes based on an alleged Equal Protection Clause violation. And a rejected Texas lawsuit sought to throw out 100,000 votes cast at drive-thru polling stations, claiming that such voting violated Texas law. 

Set aside laches and the profound weaknesses of the merits claims in these suits. Assume that the challenged elections provisions—and the votes cast under them—were unlawful. How should a court think about voter reliance on existing law and the appropriate remedy for when unlawful votes are cast?

The exclusion of evidence in the Fourth Amendment context may provide an analogy. 

Another Way The State Legislature Scheme To Steal The Presidential Election Would Be Illegal

 by Michael C. Dorf

After meeting with President Trump on Friday, the Republican leaders of the Michigan legislature--Mike Shirkey, the State Senate majority leader, and Lee Chatfield, the speaker of the Michigan House--reaffirmed their commitment to following the law, under which the state's Presidential electors will be certified for the winner of the state's popular election. I hope that their statement spells the beginning of the end for Trump's grotesque gambit to enlist Republican-led state legislatures in facilitating a bloodless coup.

However, there are reasons to remain gravely concerned, especially if, later today, the two Republicans on the Michigan State Board of Canvassers accede to their party's outrageous request for a two-week delay in certification of the state's election results based on minor and routine discrepancies fronting for racist conspiracy theories. To be clear, that move would not by itself deprive Joe Biden of Michigan's electors, much less the Presidency, but it would embolden Trump and his enablers. If you give a mouse a cookie, he's going to ask for a glass of milk. If you give a malignant narcissist a two-week delay, he and his brownshirts are going to try to extort (at least) four more years of his destructive reign.

Accordingly, I think it is premature to judge Trump's scheme to steal the election through GOP-controlled state legislatures dead. It therefore warrants continued legal analysis, even as I fervently hope that what I write here ultimately proves to be of merely theoretical interest.

Women, Animals, and Victim-Blaming

 by Sherry F. Colb

(The following is the text of a talk I gave on Monday on a panel sponsored by the New York City Bar.)

When I was in law school, a brave classmate spoke openly of a marriage in which her husband regularly abused her. I realized as I listened that I had stereotypes of battered women in my mind. I was surprised to hear what she said because she did not seem like the sort of woman who would find herself in an abusive relationship. She was eloquent and strong and extremely intelligent. I looked up to her and admired her as a leader. What could have possessed her to absorb abuse? And what exactly did her husband do to her?

We can recognize this kind of thinking as victim blaming. We find out that a person is enduring cruelty and abuse, and we ask, “Why haven’t you left?” or “Is it really that bad?” instead of assuming that she has her reasons and that it is her abuser rather than she who has some explaining to do. As a good friend of mine said recently, if we blame the victim, then we can pretend that we are safe. It is an understandable human impulse. A colleague of mine died of lung cancer a few years ago. Almost everyone wanted to know whether she smoked. (She did not). But what if she did smoke? Then we could tell ourselves we would be fine because she brought it on herself by smoking. We don’t really believe that she deserved to die because she smoked, but we place distance between her and ourselves by identifying things that she did to increase the odds of her illness.

In the case of my classmate, the reason I think it was “brave” for her to talk about the abuse she suffered is that she was surely conscious of the stereotypes. And I imagine she had internalized the shame that goes along with victim blaming. She probably told herself at times, “I chose to marry him, so maybe it’s my fault. I must deserve it because I haven’t left.” It is risky to reveal something about yourself that people tend to judge. If you doubt that women feel shame after abuse, just watch the makeup tutorials online that let victims know how to conceal their injuries. When a woman says “I just walked into a wall,” it is not only to protect her partner; it may be to protect herself from judgment. How people react will depend a lot on how committed they are to the stereotype, and it is hard to know that in advance.

Trump's Remaining Coup Options are Daunting — but Scary

by Neil H. Buchanan

 

While he was frantically running around the country at the end of his losing reelection campaign, Donald Trump continually told his audiences that the media were pushing the coronavirus story simply to hurt him.  He predicted that, come November 4, we would stop hearing anything about COVID-19.  It is worth noting, then, that Trump's paranoid sense of victimization was wrong again.  The pandemic is raging, and the press is covering it aggressively, even after he lost.

 

The problem is that Trump and the Republicans are doing their best to push that story aside by making news of the worst sort: attempting to destroy constitutional democracy.  (Trump also is now claiming credit for progress on vaccines, and Donald Trump Jr. has claimed that Pfizer withheld its positive announcement until after the election to hurt his father.  A chip off the old paranoid, self-pitying block.)

 

But is the Trump coup attempt dead in the water, as much of the media discussion assumes?  Of course not.  As I will explain here, his remaining options are long shots, but in some ways that makes them even more worrisome.  At best, the outcome will be a Biden presidency that must constantly fend off attacks on its legitimacy.  At worst, we will have a constitutional crisis over the next two months that could shake (and perhaps demolish) the nation's foundations.  How might that all play out?

 

Efficiency? I Do Not Think That Word Means What You Think It Means

by Neil H. Buchanan

I need to take a short break from following Donald Trump's ongoing attempted coup.  This is turning out to be every bit the existential crisis about which I and others have long warned; and even though people are currently (understandably) expressing confidence that Trump will ultimately fail, I still have serious doubts.  But that is for another day (probably tomorrow).  How about a palate cleanser?

As it happens, I have again been thinking about the incoherence of the concept of economic efficiency.  As Professor Dorf announced back in May, a new Buchanan-Dorf article is forthcoming in Cornell Law Review under the title: A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism.  Because of the long time frames involved in law review publishing, we are only now being asked to respond to the final round of editorial queries for the article.  (Our submitted draft can still be found on SSRN).

 

As Professor Dorf explained, and as I explored in two followup columns (here and here), our article describes the state of play in "originalism and textualism" (O&T) and "law and economics" (L&E), with the real oomph of the piece being our observation that conservative academics in those two fields make opportunistic and arbitrary choices that just so happen to lead to right-wing outcomes nearly every time, even though O&T and L&E should not on their own terms be so predictably parallel.  Worse, adherents of both categories of conservative theory loudly purport to be objective and non-ideological, even as they rely on plainly biased assumptions.  (I would say that the theories are "rigged," but Trump and the Republicans have taken that word away from us, at least for now.)

O&T (as the scandalously dishonest recent Supreme Court confirmation hearings in the Senate reminded us) claims that courts can be constrained in their interpretive efforts by being forced to adhere to the words of documents and their objectively determinable meanings, which supposedly means that judges cannot play fast and loose with statutes and constitutional provisions.  Meanwhile, L&E is based on an economic theory that says that the best approach to all legal and policy questions is to determine what the "efficient" choice would be.

Here, I want to return to the economic efficiency concept and explain why the L&E move (which is simply an adaptation of the framework invented by the group of economists known as neoclassicals) is truly an empty exercise within which anyone can embed their policy preferences.  I do so both to respond to an interesting objection that we have heard and because it turns out that even people like Chief Justice John Roberts understand (perhaps without realizing it) that the efficiency concept is incoherent and manipulable.

Religious Liberty as Religious Supremacy: Why Justice Alito's Federalist Society Speech was Paranoid and Inaccurate

 By Eric Segall

Justice Samuel Alito’s partisan speech to the Federalist Society last week caused quite a stir among both the left and the right, with both sides lining up to criticize or applaud the presentation based on their political views. He said many things that perhaps Supreme Court Justices should keep to themselves. But the part of Alito’s remarks that focused on the alleged persecution being heaped on people who object to same-sex marriage on religious grounds, and his overall argument that "religious liberty is in danger of becoming a second class right," raise important issues concerning the separation of church and state (or-non-separation) and suggest Justice Alito has a perverse and counter-factual perspective on the state of religious liberty in America.

People of faith, according to many, have a right to be exempt from laws applicable to the rest of us, if complying with those laws substantially burdens their religious exercise, but secular objectors attending official government meetings (often coercively) are expected to respectfully put up with their discomfort with official prayers or leave the room, chamber, or capitol building. Non-believers have also been told by the Supreme Court to accept religious symbols (usually Christian) on government property. This hypocrisy is unnecessary, triggers culture wars, and shows that religious supremacy, not religious liberty, is Justice Alito's, and the Court's, preferred constitutional value.

Takings and Time

 by Michael C. Dorf

On Friday the Supreme Court granted certiorari in Cedar Point Nursery v. Hasid, a case that pits labor rights against property rights. Given the Court's current personnel, the odds seem pretty clearly stacked in favor of the latter. Here, I'll briefly describe the case but mostly set aside the ideological stakes. Instead, I'll focus on a mathematical issue that the case presents and that arises in other contexts as well.

Justice Alito's Sense of Grievance Distorts His Views of Free Speech

 by Michael C. Dorf

In remarks at the Federalist Society national convention yesterday, Justice Samuel Alito proved that even if the clown-tyrant currently occupying the White House fails in his attempted putsch, right-wing grievance politics will remain with us for quite some time. As Justice Alito made clear during last week's oral argument in Fulton v. Philadelphia, he has not gotten over Obergefell v. Hodges, the 2015 case recognizing a constitutional right to same-sex marriage. Justice Alito repeated his complaint again for his FedSoc audience.

Much of the coverage of Justice Alito's remarks has focused on whether they were inappropriately political or partisan. I want to put that issue aside to focus instead on how Justice Alito's sense of aggrieved entitlement has distorted his legal analysis on the issue of free speech.

What I Misunderstood About People Who Might Vote for Trump

by Neil H. Buchanan

 

This past Saturday and Sunday, when it briefly appeared that President-Elect Biden and Vice President-Elect Harris were going to be widely and quickly accepted as the legitimate victors in the election, I considered writing a column this week in which I would eat a considerable amount of crow -- and because I am a vegan, that would have been an especially repellent prospect.

 

I have, after all, been loudly and consistently saying for years that Donald Trump would bring the end of the rule of law in America, that he would never leave office, and that we might even be a "dead democracy walking."  Saturday's celebrations seemed to have proven me wrong.  Delightfully, deliciously, deliriously wrong, but wrong.  Would that it were so.

My new Verdict column (to be published tomorrow) instead suggests that the Republicans are very likely now in the process of going through the mental gymnastics needed to support Trump's outlandish claim to being the rightful winner of the election.  Just as Republicans have been horrified, then resigned, then willing to ignore things like the "Access Hollywood" tape, the Charlottesville equivalence, the Ukraine extortion attempt, and on and on, I argue that the current cover story about Trump needing time to accept reality is instead time being spent getting Republicans to adjust to his alternative reality.

I do admit that there are still plenty of barriers to preventing the coup, but I continue to have much less confidence than others that those barriers will hold.  And even if the legal barriers are not breached, Trump still has the military (which he is in the process of corrupting) and his "Second Amendment people" on speed dial.

All of that is plenty scary, but I will use this column to discuss the election from a much more mundane perspective.  That is, I want to discuss votes as if they actually matter.  Yes, it is prosaic of me to continue to think of elections as the core of democracy, but bear with me.  I want to discuss why Trump received so many more votes than I thought he would.  It is an important question, and the logical mistake that I have been making until now is especially fascinating.

The Deadest of Zombie Ideas: Americans Prefer Conservative Policies

by Neil H. Buchanan

The transition to the Biden Administration is already looking less than certain, with Republicans once again enabling Donald Trump's autocratic instincts by refusing to acknowledge the clear victory by Joe Biden and Kamala Harris in this year's election.  That is quite worrying, as I will discuss in my Verdict column on Friday.  For now, however, let us imagine that Donald Trump will actually be evicted from the White House and that a new political reality will begin on January 20, 2021.

As appealing as that idea is, the fact is that Republicans and weak-kneed Democrats will continue to work in lockstep -- not conspiratorially, but simply by following their respective political instincts in the same direction -- to prevent progress on the actual policy issues facing the country and the world.

Yes, it will matter a lot whether the Democrats can somehow win both Georgia runoff elections for U.S. Senators, which would give them the bare minimum to control the Senate agenda and keep Mitch McConnell's hands off of the appointment process for cabinet members and federal judges.  But even if the Democrats had ended up with 51 or 52 seats, the Senate was going to be a very difficult place, because too many of their members -- not only West Virginia's conservative Democrat Joe Manchin, but others as well -- buy into the wholly mistaken idea that America's is fundamentally a conservative polity.

Where does the myth of America's DNA-level conservatism come from, especially given that it seems so easy to kill with overwhelming evidence?  Why do so many people continue to reanimate this zombie?