Friday, September 25, 2020

State Legislatures Cannot Act Alone In Assigning Electors

by Grace Brosofsky, Michael C. Dorf, and Laurence H. Tribe

The Constitution’s Presidential Electors Clause of Article II, Section I empowers each state, through its legislature, to direct the “Manner” by which its representatives in the Electoral College are appointed. Since relatively early in the nineteenth century, the near-universal practice of states has been to enact legislation designating popular election as the appropriate manner. With the exception of Maine and Nebraska, which apportion their Electors to the winners of the Presidential election in each Congressional district, every state assigns its Electors to the winner of the statewide Presidential election.

Given President Trump’s unprecedented suggestions that he would not accept the result of an election that he loses, the question has arisen whether he might attempt to subvert that result by exploiting an apparent loophole. Suppose that more ballots in a state are cast for Democratic nominee Joseph Biden’s slate of electors than for President Trump’s slate but that Trump, perhaps making unsubstantiated claims of fraud, prevails upon the state’s legislature to change the rules and directly appoint his Electors to the Electoral College. Such a course of action would raise two questions: First, can a state legislature change its method for selecting Electors after it has conducted a popular Presidential election? Second, if so, can it disregard the state constitutional requirements for legislation, including presentment for and the possibility of a veto by the governor where state constitutional law so requires?

There may be reason to think that the answer to the first question is no—that a state legislature cannot change the rules of the game after the final out—but we shall assume, purely for the sake of argument, that such a change would be permissible prior to the convening of the Electoral College. Nonetheless, the answer to the second question is clearly no. Even if a state legislature has the power to assign its Electors to the loser of the state’s Presidential election, it can only do so by complying with the state’s constitutional procedure for lawmaking, including gubernatorial participation.

Why? In short, because the Presidential Electors Clause does not delegate any authority to state legislative majorities to circumvent their established state constitutional procedures for enacting legislation. On the contrary, as the Supreme Court held in the 1932 case of Smiley v. Holm, when the Constitution assigns a lawmaking function to a state legislature—as the Presidential Electors Clause does—the state’s own constitutional requirements for lawmaking guide and constrain how the state legislature performs that function.

Thursday, September 24, 2020

Justice Ruth Bader Ginsburg’s Legacy as a Justice and What That Reveals About our Broken Supreme Court

 By Eric Segall

Justice Ruth Bader Ginsburg was a remarkable woman both personally and professionally. Way ahead of her time, she championed women’s rights and changed American history for the better. Warm, caring, and funny in her private life while also fearlessly fighting for a better and more just society as a lawyer, judge, and justice. She will be sorely missed.

At this moment in America’s history, however, we should also pause to recognize that as a justice, Ginsburg was a partisan who for more than a quarter of a century voted her politics, beliefs, and values regardless of prior law. In that regard, the only difference between Justice Ginsburg and Justices Thomas and Alito, when it comes to their Supreme Court careers, is that Ginsburg did not hide her politics behind the false veneer of originalism, and that difference matters. But what matters more is recognizing that this remarkable woman, when handed largely unreviewable power for life, did what just about everyone would do as a Supreme Court Justice--vote her preferences.

The Long Con versus the Smash-and-Grab: Why Do Republicans Have So Little Finesse?

by Neil H. Buchanan

I have long been predicting that Donald Trump will stay in the White House, fully supported by the Republican Party, no matter what happens in this year's election.  Recent events have made me ever more grimly confident in that prediction.  So unless something wonderful happens -- or more accurately, unless American democracy draws the ultimate inside straight -- the Republicans will get what they have always wanted: permanent and unchallenged power, notwithstanding their extreme unpopularity.

At some point soon, I will likely go back to writing columns about what to expect under a completely unbound Trump dictatorship.  Today, however, I want to ponder why the Republicans were willing to carry out this heist of the American experiment in such a blundering and obvious way.  As I will demonstrate, they could have done it much more smoothly and left themselves with a healthier country to run into the ground.  Why the lack of even a tiny bit of finesse?

Wednesday, September 23, 2020

Why Do Republicans Bother To Lie About Their Judicial Appointments Strategy?

 by Michael C. Dorf

In an insightful essay Monday on Balkinization, Columbia Law Professor David Pozen dissects the terrible reasons that Republican Senators have given for why it was okay for them to hold open the seat that became vacant when Justice Scalia died in February of an election year but it's somehow imperative to fill the vacancy occasioned by Justice Ginsburg's death in September of an election year. As Professor Pozen shows, the real, operative "McConnell Rule" is revealed by the Senate Majority leader's actions: "block as many Democratic nominees and confirm as many Republican nominees as is politically feasible."

I completely agree with Professor Pozen's analysis, but it raises a question: Why do McConnell and other Republican Senators even bother to lie about what they're doing, especially given how transparently unpersuasive their lies are? To be sure, we might ask the same question about Donald Trump, who often lies for no apparent benefit or reason, but Trump is a pathological liar. McConnell and the other GOP Senators--Professor Pozen discusses Lindsey Graham, Ted Cruz, and Tom Cotton--are not. They're hardly pillars of truth, to be sure, but one would expect them to derive some benefit from lying. And presumably they do.

Here I'll try to figure out what benefits the lying Republican Senators derive from their lies and therefore what motivate them to lie. I'll offer various hypotheses, none of which I intend to be exclusive of the others.

Tuesday, September 22, 2020

Freedom of Movement and Freedom of Commerce: Barr Is Still Wrong

by Neil H. Buchanan 

For the last several years, it has become a grim, oft-repeated joke that it is impossible to keep up with the blur of awful news that rushes by us, dreary day after depressing week after soul-crushing month.  This last week seems to be both proof that it can always get worse and a demonstration that even hitting bottom would not be in any way a relief.  If this truly is as low as we go (and I doubt that it is), then that merely means that life might have fewer big shocks ahead -- but that we are stuck with the consequences of what we have already endured.

We very recently were wondering whether Donald Trump's insulting of people who join the military -- and especially those who are captured or die -- would erode even a tiny bit of his political support.  We heard him admitting on tape that he has been very consciously lying about the coronavirus pandemic.  We had heard Trump's Roy Cohn projecting every Trumpian evil onto Trump's opponents, claiming that it is everyone else who is abusing the rule of law and dishonoring the Constitution.

And all of those things, none of which meaningfully changed the polls or support among Republicans who slavishly back Trump, hit us before Justice Ruth Bader Ginsburg's death saddened us beyond measure -- only to be quickly followed by a Republican power play of jaw-dropping proportions.  Oh, and also a gratuitous insult from Trump, who called RBG's granddaughter a liar.
 
Although Bill Barr's latest trolling of America is no longer the greatest outrage to which one might respond, I want to use this space today to return to a discussion of what he had said last week about stay-at-home orders: "Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history."  Barr's casual distortion of our history calls for additional condemnation, because he truly does not understand what freedom is.

Monday, September 21, 2020

Confronting Originalism: Truths and Myths

 By Eric Segall

This post was mostly written before the death of Ruth Bader Ginsburg. The country has lost a true hero who in both her personal and professional life lived up to our highest ideals. Her litigation crusades to achieve equal rights for women changed this country forever. She will be sorely missed. I can't add anything to Mike's beautiful Saturday morning tribute.

Last Friday I gave a presentation (virtually of course) at the University of Nebraska on "Confronting Originalism." I outlined a series of truths about originalism that also dispelled numerous myths about originalism. Here are some of the arguments I made.

Saturday, September 19, 2020

RBG From the Point of View of the Universe

 by Michael C. Dorf

"President Trump’s nominee will receive a vote on the floor of the United States Senate." -- Majority Leader Mitch McConnell in a statement released yesterday that pivoted from gracious praise of Justice Ruth Bader Ginsburg to doublespeak about how 2020 is supposedly qualitatively different from 2016.

"[T]he funeral baked meats [d]id coldly furnish forth the marriage tables." -- Hamlet (in Act I, Scene II), chafing at how soon after the death of his father the king, his mother, Queen Gertrude, remarried the new king, Hamlet's uncle Claudius.

----

It was inevitable that the news cycle would not pause to reflect on the extraordinary career and life of Justice Ruth Bader Ginsburg before turning immediately to a discussion of whether there exist at least four Republican Senators who are not utter hypocrites. Still, I might have thought that savvy-if-evil politicians like Senator McConnell would have waited at least 24 hours before announcing their schemes for how they intend to reshape the post-RBG Court, if not out of common decency then perhaps because appearing to take time to grieve would be good politics. Call me naive.

I shall no doubt have much to say about whatever comes next, but for today I want to take a moment to celebrate Justice Ginsburg in broader perspective. I shall do so using a trope that my father, who also died in this annus horribilis, often invoked. My dad was a couple of years older than Justice Ginsburg and, although they did not know each other, moved in some of the same circles. That included overlapping for a couple of years at Cornell when she was an undergrad and he was a graduate student here.

My dad studied philosophy and liked to use an image from the English philosopher Henry Sidgwick: the point of view of the Universe. Sidgwick was a utilitarian who embedded that turn of phrase in a claim that one oughtn't to favor one's own interests over those of others (except to the extent that one knows one's own interests and is better able to advance them than to advance those of others). My dad and Justice Ginsburg were both notable for putting the interests of others -- both those close to them and strangers -- ahead of their own interests in many ways, but my dad, who knew what Sidgwick meant, liked to use the term in a different way. When dealing with one of life's minor or not-so-minor setbacks, he would say that it helps to see it from the point of view of the universe. He used the phrase less as a utilitarian and more as a stoic (in the original sense, not in the colloquial sense of joyless).

Friday, September 18, 2020

William Barr Has the Gall to Say He's Accountable to the People

 by Michael C. Dorf

The written version of the remarks Attorney General William Barr delivered this week at Hillsdale College was not as incendiary as what he said orally but, as I shall elaborate, infuriating nonetheless. The most outrageous oral statement came in Barr's response to a question about public health measures. He said that "putting a national lockdown, stay at home orders, is like house arrest. Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history."

Prof Buchanan explained in his insightful post yesterday that much of what Barr said was absurd anti-government cant. He prefaced that explanation by noting that the outrageousness of Barr's condemnation of lockdowns was not the comparison to slavery, which Barr acknowledged was worse than and categorically different from lockdowns. No, the outrageousness was thinking that U.S. lockdowns (which, as I explained on Wednesday, were not actually lockdowns in the Chinese or even European sense) come in second place.

Perhaps the Attorney General forgot the "Indian removal" policy of Andrew Jackson (whose portrait Barr's boss chose to put in a place of honor in his Presidential office). No doubt the fact that the United States locked up over 100,000 Japanese Americans during World War II for no reason other than their ancestry also slipped Barr's mind. Also Jim Crow; McCarthyism; patriarchy; etc. Perhaps Barr is using a secret and idiosyncratic metric to measure "greatest intrusion."

Whatever the explanation, Barr's comparison overlooks the obvious: slavery and various other gross intrusions on civil liberties were unjustified evils. Stay-at-home orders during the pandemic undoubtedly did and do infringe on the liberty of movement, but they do so for a very large benefit: saving tens of thousands of lives. Judged by that standard, the U.S. has not restricted the liberty of movement (and freedom to go about in public maskless) too much but too little. To be sure, some other technologically advanced countries have fared no better than the U.S., but looking over the per capita death toll by country, patterns emerge. Four technologically advanced countries have done about as badly as the U.S.: the two European countries that were hit hardest earliest--Italy and Spain; and the two that have been roughly as unserious in their efforts as the U.S.: Sweden and the U.K. By contrast, Canada has suffered fewer than half as many per capita deaths as the U.S., while countries with much better public health responses--including South Korea, Japan, New Zealand, and Taiwan--have done better by orders of magnitude. 

However, my point now is not that the U.S. ought to have been doing and should continue to do more to combat COVID-19, although I think that. My point is that any discussion of the civil-liberties cost of the response to the pandemic is grossly incomplete without an accompanying discussion of the benefits. I doubt that Barr would describe the imprisonment of convicted violent felons as an "intrusion on civil liberties," because, although imprisonment in fact deprives the people imprisoned of their liberty, it does so for the compensating benefits the criminal justice system brings about. We ordinarily perform cost-benefit analysis. Barr's condemnation of public health stay-at-home orders is simply cost analysis.

Thursday, September 17, 2020

Barr, Slavery, and Lockdowns: Completely Wrong, But Not for the Reasons You Might Think

by Neil H. Buchanan

The big story from the recent appearance by Donald Trump's personal attorney William Barr at a religious college in Michigan is that Barr supposedly likened this year's COVID-related shutdowns to slavery.  The Washington Post, for example, ran a news article under these words: "Barr under fire over comparison of virus lock-in to slavery."
 
I have absolutely no reason to bend over backward to give Barr the benefit of any doubt, but that is not what he said.  What Barr said was outrageous in other ways, as I will discuss, but what he actually said was this (per CNN): "'You know, putting a national lockdown, stay at home orders, is like house arrest. Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history,' Barr said as a round of applause came from the crowd."
 
Again, there is a lot going on there, but Barr was careful specifically to say that slavery was categorically different from what he was complaining about.  I am not saying that this makes Barr a good guy, of course, because it merely means that he is savvy enough to think in advance about how to give himself plausible deniability.  Sure, calling slavery "a different kind of restraint" is like saying that death is a "different kind of physical malady" from psoriasis, but he did at least say that there is an apples-to-oranges difference.  Still, he all but invited the outrage, and he deserves the thrashing that he is receiving; but he did not "compare" or "liken" them, for what little that is worth.

In any event, Barr has surprised everyone by reinventing himself as the embodiment of political evil -- a dishonest, sneering, calculating monster who has disgraced the office of the Attorney General and so much more.  On my naive/stupid/evil scale (or, with synonyms, the ignorant/illogical/malevolent scale), there is no doubt that Barr is neither uninformed nor incapable of if/then reasoning.  He simply chooses not to use his knowledge and his thinking skills to preserve the rule of law or the Constitution.  But what is he doing?

Wednesday, September 16, 2020

What's Wrong, But Also What's Right, About the District Court Ruling Invalidating Pennsylvania's Public Health Measures

 by Michael C. Dorf

On Monday, Federal District Judge William Stickman IV ruled that public health actions by Pennsylvania Governor Thomas Wolf--most centrally a stay-at-home order and business closures during the most acute phase of the COVID-19 pandemic--were unconstitutional infringements on liberty and, in one instance, a denial of equal protection. The ruling in County of Butler v. Wolf generated considerable news coverage, much of it in a partisan frame: a Trump-appointed judge who was confirmed on a close-to-party-line vote seemed to say that the arch-conservative 1905 decision in Lochner v. NY remains good law, and in so doing vindicated GOP resistance to coronavirus-fighting measures by a Democratic governor.

I have good news and bad news. The good news is that the opinion is more thoughtful and well-reasoned than it has been portrayed. The bad news is that it is nonetheless wrong on a number of key points. In this essay, I'll first describe what Judge Stickman gets right before turning to what I regard as his errors.

Tuesday, September 15, 2020

For the Zillionth Time, Being Fair Does Not Mean Treating All Views as Legitimate (Election Rigging Edition)

by Neil H. Buchanan
 
Donald Trump and his enablers are remarkably consistent in accusing others of Trump's own sins.  This reaches absurd new levels when Trump's campaign tries to say that any bad things happening today are "Joe Biden's America," but there has long been a consistent drumbeat of projection coming from TrumpWorld.

Trump constantly calls for companies to be boycotted and disfavored people to be shunned, but it is the "radical left" that is supposedly canceling everything in sight.  Trump pushes for big new military toys, but somehow it is the generals who have forced him to ignore the enlisted women and men.  Trump does everything in his power (and then some) to put an internal coup in motion, but he and his minions claim that the Democrats' efforts to hold Trump responsible under the Constitution and statutes (including oversight and impeachment) are somehow evidence of efforts to negate an election.

Bill Barr, Trump's personal attorney (and nominally the Attorney General), is especially practiced at this strategy of engaging in radical action while attacking his opponents for their supposed radicalism. In a speech last Fall, Barr reportedly "warned that Catholicism and other mainstream religions were the target of 'organized destruction' by 'secularists and their allies among progressives who have marshalled all the force of mass communications, popular culture, the entertainment industry and academia.'"
 
It is all culture war, all the time -- just as Republicans have long claimed that calls for income redistribution are "class warfare," which Warren Buffett rightly dismissed with this great line: "There’s class warfare, all right, but it’s my class, the rich class, that’s making war, and we’re winning."  Pickpockets screaming about being robbed have more credibility.

As Election Day and its sure-to-be-ugly aftermath approach, the new Alice in Wonderland claim is that Democrats are the ones who will be unwilling to accept the election's results if Trump wins.  That, unlike Trump, is rich.  Even so, this claim is now being reported as a serious concern.  What is going on?

Monday, September 14, 2020

Robert Jackson, Stan Van Gundy, Patriotic Rituals, and the Endowment Effect

 by Michael C. Dorf

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." -- Justice Robert Jackson, speaking for the majority in West Virginia State Board of Education v. Barnette (1943), which, in the midst of a world war, held that children in public schools may not be compelled to recite the Pledge of Allegiance.

"All the talk about national anthem protests begs the question — Why do we even play the anthem before games? Why do we have to honor our country before we play a game? We don’t play the anthem before movies, plays etc. It makes no sense. Let’s end the practice and just play."  -- Stan Van Gundy, former NBA head coach and front office executive, on Twitter on Friday.

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Justice Jackson's opinion is rightly celebrated as a brave and eloquent defense of freedom of speech and conscience. Yet note what it permits. Suppose some students object to saying the Pledge of Allegiance--perhaps because they and/or their family believe, as the plaintiffs in Barnette believed, that it is a form of idol worship, or perhaps because they believe its words ring hollow in light of American policy at home and/or abroad. The Barnette case gives them a right to opt out--to sit or stand respectfully and quietly. However, the case permits school authorities to put students to a difficult choice: recite the Pledge and violate your conscience or risk ridicule, ostracism, and perhaps even violence from outraged self-styled patriots.

Friday, September 11, 2020

Actions versus Inactions: Trump Is Better Off When He Does Nothing (and so are we)

by Neil H. Buchanan
 
The latest avalanche of news includes the release of excerpts from Bob Woodward's new book, supported by tapes of a series of his interviews with Donald Trump.  The most grimly amusing aspect of the fallout from the book's bombshells is Trump's attempt (parroted, of course, by the White House disinformation office and the right-wing mediaverse) to say that he was wise to decide to "play down" (his words) the coronavirus, even though he knew that it was a uniquely dangerous threat.

On that tape, and in his own followup comments since the release of the audio, Trump says that he did not want to create a "panic," and he and others are now saying that the public would have been in a "frenzy" if he had not been so rock solid in making calm decisions.  By contrast, many non-Trump sources have noted that stoking fear and panic is in fact what Trump is more than happy to do all the time -- Antifa thugs are moving into your neighborhood!  Cities have become anarchies!  Mexico is sending rapists and murderers to the U.S.!! -- which is absolutely true.  I am, however, interested in a different aspect of Trump's defense.

The best case that one can make that a person should not stoke panic is the classic "shouting 'FIRE!' in a crowded theater" scenario.  There, it of course makes sense to maintain calm, because people’s panicked reactions can themselves make matters much, much worse.  So far, so good.  But it is what one does next, after saying "better not to stoke panic," that truly counts.  A responsible person -- but especially a responsible leader -- would: (a) immediately try to get people to leave the theater in a safe, rapid fashion, and just as importantly (b) try to put out the damned fire.

Trump, by contrast, is saying in essence, "So rather than doing anything, I just walked away.  Wasn't I great for not stoking panic?  Vote for me!"

This is especially odd, because Trump's default in a lot of situations is to do something when he should have done nothing.  As suggested by the title of this column, I think that Trump generally makes things worse when he decides to do something.  And indeed, even in this case, he might be right that his version of taking action in January and February would have resulted in even more death and devastation than the country currently faces.  After all, in the ensuing months he did actively undermine Anthony Fauci and made it harder for states to respond to the pandemic, and he actively discouraged mask-wearing in public.

Saying that it would have been better if Trump had done the right thing (or even a small fraction of the options that might have had positive marginal outcomes), therefore, is different from saying that anything that he might do is worse than nothing.  When he acts, he makes things worse, which we can see in almost every aspect of his time in office.
 

Thursday, September 10, 2020

Originalism Without Slavery and Sexism is a Dangerous Fiction and Other Absurdities: A Response to Professor McGinnis

 By Eric Segall

Noted Originalist John McGinnis of Northwestern University recently wrote a blog post with a title that, when I read it to my non-lawyer wife, made her incredulous. The title was "Can Modern Originalism Save American Constitutionalism?" Isn't "modern originalism" an oxymoron, my wife asked me. It was a good question but I was too busy being mad at the rest of the piece to answer her directly. Much that is wrong with "modern originalism" is reflected in McGinnis's piece.

McGinnis begins by quoting Sir Roger Scruton, who compared the French and American Revolutions. The former was intended to "transcribe into political ideas that had previously no overt presence there and which owed much to the abstract arguments of philosophers," while the latter "was designed to guarantee to the people what they had once enjoyed. It was a recipe for an already established practice rather than a recipe for a new order of things."

So right off the bat, anyone defending the American Constitution as "a recipe for an already established practice" needs to address the evils of slavery, complete subjugation of women, and the limited franchise at the time our Constitution was ratified. As usual, however, and like most originalists, new, old, and in-between, there is no mention of those pernicious practices in McGinnis's post. More on that failing later.

Wednesday, September 09, 2020

Doc Rivers, the Garrison-Douglass Debate, Thurgood Marshall, and the Nature of the Constitution

 by Michael C. Dorf

In an eloquent impromptu speech that quite appropriately received a great deal of attention, Los Angeles Clippers Coach Doc Rivers responded with a mix of outrage and sorrow to the theme of the Republican National Convention: fear. How grotesque, Rivers said, that the RNC brazenly tried to frighten its overwhelmingly white base and try to appeal to white suburban swing voters by grossly exaggerating the threat to civil order posed by the small minority of agitators who have used the occasion of generally peaceful protests demanding racial justice as an opportunity to loot, damage property, and provoke or commit acts of violence.

"We’re the ones getting killed," Rivers said. "We’re the ones getting shot. We’re the ones that were denied to live in certain communities. We’ve been hung. We’ve been shot. And all you do is keep hearing about fear."

The Rivers speech was extremely powerful and quotable. Here I want to focus on what he said at the end. Rivers observed that the movement for racial justice is hardly a movement for anarchy by noting, among other things, that his own father was a police officer and he believes "in good cops." He professed the patriotism of the African American community: “It’s amazing to me why we keep loving this country, and this country does not love us back." And he concluded this way: "All we’re asking is you live up to the Constitution. That’s all we’re asking, for everybody, for everyone."

It's the part about the Constitution that raises questions for me, because the Constitution has exacerbated many of our current problems. Were it not for the Constitution's essentially unamendable Senate ("no State, without its Consent, shall be deprived of its equal Suffrage in the Senate"), we might have a national legislature that better reflected the popular will, in which, among other things, the desperately needed $3 trillion COVID-19 package that the more democratic House proposed would have been enacted already, disproportionately benefiting the Black and Brown communities that have been disproportionately suffering the medical and economic impacts of the pandemic. Were it not for the combination of a very high bar even for ordinary constitutional amendments and life tenure for Supreme Court justices, we might have already reversed (through amendment or appointment) the judicial decisions that reinforce the disenfranchisement campaign that the Republican Party has waged against voters of color since Nixon flipped the parties' valences on race in the 1960s. Were it not for the Electoral College, Republicans would not have captured the White House in three of the last five Presidential elections despite losing the popular vote in all but one of those elections, and thus we would have been spared the catastrophic presidency of Donald J. Trump.

Given all of those terrible contributions that the US Constitution makes to our public life, why did Rivers ask that we "live up to," rather than abandon, it?

Tuesday, September 08, 2020

Political Vendettas versus Progressive Policy

by Neil H. Buchanan
 
I honestly did not expect the op-ed page of The New York Times to give space this week to an argument about an obscure tax provision -- not with so many threats to the future of the republic under intense discussion -- but apparently the relevant editors are still suckers for counter-intuitive nonsense.  In particular, liberals criticizing other liberals is like catnip for these people, it seems.

The clickbait headline of the piece in question is: "The Tax Cut for the Rich That Democrats Love," supported by the sub-headline: "Why are party leaders fighting to get rid of one surprisingly progressive element of the 2017 tax bill?"  Juicy!  The authors (Richard V. Reeves and are affiliated with the Brookings Institution, which has a reputation for being friendly to Democrats in the very non-progressive sense that that party's establishment still embodies.

But whether or not these guys are progressive avatars (they are not), surely the Democratic Party's leaders are not pushing a "tax cut for the rich," are they?  Well, yes, in a very narrow and incomplete sense, they are.  Yet RP completely fail to understand the bigger issues at play (including constitutional questions), and even when they purport to address one (but only one) argument on the other side, they brush it off with barely an effort to engage with it honestly.

I admit that this setup of my topic today is quite vague, but I wanted to be clear that this is not merely an argument about taxes.  This is a great example of how smart people can become enamored with a technical/mathematical curiosum and then run with it, ignoring the larger picture.  In any case, what are RP talking about?
 

Monday, September 07, 2020

Peak Presidential Vaporware

 by Michael C. Dorf

The term "vaporware" refers to software or occasionally hardware that a company advertises before it exists, often long before it exists, if ever. Here I want to borrow the concept. Many of Donald Trump's policies are Presidential vaporware. The most obvious example is The Wall at the southern border, which Trump boasts about but virtually none of which he has actually built. Many of Trump's tweets threatening or promising some action end up being empty rhetoric and thus another kind of vaporware.

As a lawyer, the instances of Presidential vaporware I find most interesting are those that take the official form of executive orders or directives but, upon inspection, do virtually nothing, typically instructing various agencies and officials to study options and report back. For example, on Wednesday of last week, Trump issued a document to the Attorney General and the Director of the Office of Management and Budget with the preposterous title "Memorandum on Reviewing Funding to State and Local Government Recipients That Are Permitting Anarchy, Violence, and Destruction in American Cities."

In addition to reciting various false statements of fact (e.g., that the authorities in some US cities have "allowed" or even "endorsed" anarchy), the Memo suggests that the President has the power to deny federal funds to cities or even whole states with law enforcement policies he dislikes. That is not, of course, how the federal power of the purse works. Congress allocates funding. It can and sometimes does vest discretion in the President to spend or not spend or even to provide incentives, but Congress itself cannot use the spending power coercively and thus has no coercive spending power to delegate.

Trump wouldn't know any of that, because he hasn't ever read the Constitution, cases construing it, or anything else that isn't mostly pictures. However, the lawyers who turn Trump's vindictive Twitter rants into policy do have some knowledge of the law, and thus when one digs into the Memo, one finds that it is indeed simply vaporware. It sets deadlines for various reports, but all it really does is ask various federal officials to figure out whether they have the legal authority to withhold funds from anarchist jurisdictions. Because they don't, and because, in any event, there are no anarchist jurisdictions, the Memo is essentially meaningless.

Why write a meaningless memo? Doing so allows the lackeys who wrote it to tell Trump that they are implementing his plan to defund anarchist cities. He believes them because he doesn't read the memo, but even if an adviser or a FoxNews talking head explains to him that the memo doesn't actually defund anything, Trump can still boast to his base by pointing to the memo as what in Trumpworld counts as evidence that he is following through on his absurd threat. He'll either believe that because he's too ignorant to know otherwise or lie about it because he's a pathological liar. Win-win!

Friday, September 04, 2020

Prophylactic Laws

 by Michael C. Dorf

Scholars and jurists debate the legitimacy of the practice by which courts create so-called prophylactic rules that go beyond what the written law strictly requires. The best-known examples of rules that some people regard as prophylactic are the Fourth Amendment exclusionary rule and the Miranda warnings designed to protect against the inherent coerciveness of custodial interrogation. Some scholars and jurists view these rules as prophylactic. In this view, the rules go beyond what the Fourth and Fifth Amendments respectively require in order to prevent violations of those amendments. Whether to classify these rules as prophylactic is controversial, as is the authority of courts to fashion prophylactic rules at all.

Were I writing today about judge-made prophylactic rules, I would now discuss the various opinions in the 2000 SCOTUS decision in Dickerson v. US (which confusingly referred to the Miranda warnings as a "constitutional rule," even as prior cases that seemingly remained good law treated it as prophylactic), and my take on that decision in an article I co-authored with Prof Barry Friedman. However, today I want to discuss a cousin of prophylactic rules--a phenomenon that is both more common and less controversial.

In my Verdict column this week, I discuss Shinzo Abe's legacy, in particular his failed effort to repeal or dramatically scale back Article 9 of the Japanese Constitution, which forbids a military. I note that one argument Abe and others offer is that Japan has been in de facto breach of Article 9 for decades, because its "self-defense forces" are a military in all but name. Thus, these reformers argue, it would be more honest to acknowledge as much rather than to continue to violate the constitution. I reply that this logic is flawed; it assumes that just because there are widespread violations of Article 9, it has no impact. Japan might be still more militaristic without Article 9. To paraphrase Michelle Obama, things can get worse.

Seen in this perspective, Article 9 has at least one important characteristic it shares with prophylactic rules in constitutional law: It goes further than the core justification in service of that justification. Some further examples will flesh out what I mean by calling Article 9 a prophylactic law.

Thursday, September 03, 2020

How Will Substantive Policies Change If Trump Stays in Office?

by Neil H. Buchanan
 
In my columns here on Dorf on Law and on Verdict over the last four years, I have insisted over and over again that people need to take seriously Trump's threat to the rule of law and especially to the peaceful transition of power.  Initially, I would say things like, "setting aside the threats of violence that are obviously present," but eventually those threats became too obvious to ignore.  Obviously, I am not happy to have been proven correct.

The one thing that has surprised me is that Trump is doing everything I thought he would do, but he is doing it before election day.  I anticipated a nasty, racist, dishonest campaign with plenty of ugliness, but even I did not imagine that Trump would do what he has done this summer.  Once he saw how badly he was losing, however, he freaked out.  I will not give him the benefit of the doubt and say that he is acting based on an actual strategy, because I continue to believe that imaginings of his political genius ascribe method to pure madness, but in any case, he is showing that he will stoke violence and hatred while abusing his powers to satisfy his boundless ego and stay in the White House.

To be clear, I do think that Trump's acting this badly this early has, if anything, decreased the likelihood that he will be able to pull off an internal coup, which means that I have gone from completely resigned to mildly hopeful over the past few months.  Even so, everything that we have seen suggests strongly that the Constitution and America's longstanding political stability are no match for a wannabe dictator and an entire political party of enablers.

One bit of very good news is that the discussion of a Trump coup has at last moved from the pages of Dorf on Law and Verdict to all of the centers of political discussion in the various political media.  Even better, Democrats are starting to take this very seriously, with first-term congresspeople Elissa Slotkin and Mikie Sherrill directly asking the chair of the Joint Chiefs of Staff as well as the Secretary of Defense for assurances that the military will not be used during or after the election to keep Trump in office.  What was once unthinkable is now under discussion, which is sad but necessary.
 
With that discussion now having gone terrifyingly mainstream, then, I have little more to add and can move on to a different set of questions.  In particular, if Trump does stay in office (no matter the circumstances), what will happen next?  This is its own chamber of horrors, but at least it does not involve running around with one's hair on fire for years while people say, "Oh, come on, you're being an alarmist."  In any case, in a post-democratic America, how would the government's policies change?  (I insist on putting that question in the conditional tense, even though that seems naively optimistic.)

Wednesday, September 02, 2020

Donald Trump's Racism is America's Racism

 By Eric Segall

According to John O'Donnell, former President of Trump Tower Hotel and Casino in Atlantic City, Donald Trump once told him that, "Black guys counting my money! I hate it. The only kind of people I want counting my money are short guys that wear yarmulkes every day. … I think that the guy is lazy. And it’s probably not his fault, because laziness is a trait in blacks. It really is, I believe that. It’s not anything they can control.” In a 1997 interview in Playboy, Trump said, "the stuff O'Donnell wrote about me is probably true." 

Writing in the Atlantic, Ibram X. Kendi recently observed that, "Americans see themselves—and their country—in the president. From the days of George Washington, the president has personified the American body. The motto of the United States is E pluribus unum—'Out of many, one.' The “one” is the president." 

Many democracies have a head of government, usually a prime minister, and a president who performs ceremonial functions like attending funerals or giving speeches after a terrible disaster. In our country, in the words of Kendi, "for better or worse," we place all of that responsibility and pressure in the hands of one person, our President. And the current office holder is not only a racist, but he is using his racism to instill fear among those most ready to believe his lies. This sad state of affairs transcends our Racist-in-Chief but is also stoked by him. The hard question, which I don't answer here, is what to do about it, but the first step of solving any problem is to accept it. And in this case, the problem is American racism as much as it is Donald Trump.

Tuesday, September 01, 2020

The Dangerous Silliness of Trump's Suspension of Social Security Taxes

by Neil H. Buchanan
 
With the Democrats neurotically worrying about whether the latest blip in one poll or another means that all is lost or that Donald Trump's incitement of violence will "work" politically -- a neurosis that is part of an infinite feedback loop satisfying the press's endless need to fill space with hot takes and over-interpretation of minutiae, all in the service of turning "urban rioting" into this year's "but her emails" -- perhaps the only sanity-preserving move is to think about matters of actual policy substance.  At least, that is what I am betting on in my efforts to be able to sleep at night.

To be clear, there is nothing more important right now than the way the supposedly anti-Trump media are conflating peaceful protests with violence and rioting, even when the problems that we are seeing are in substantial part a result of police escalation and pro-Trump provocateurs' opportunistic violence (all incited and excused by Trump himself).  And the chin-stroking columns suggesting that maybe suburban Whites really are coming around to Trump are especially harmful because they crowd out the opportunity to simply say, "White and Black people alike are less safe when the President encourages violence."  "How will this play?" replaces "What is this?"

But there is not much more to say about this topic beyond that Trump is (again) the beginning and end of the problem.  When it comes to his actual policy decisions, however, while he is still certainly a big part of the problem, at least we can say something more than, "If he cared at all about people he would stop encouraging extremists."  Indeed, we can ask how his preferred policies will affect the world.

Although Trump's presidency has been notably light on policy accomplishments, he has done a lot of damage through administrative action and executive orders.  Here, I want to talk about the order that Trump issued last month, taking effect today, that purports to be a "payroll tax cut."  That is not what Trump has actually done, and there are a multitude of perversely interesting aspects of the order.

Monday, August 31, 2020

The Cynical, Racist, Counterproductive Logic of Trump's "Fear Joe Biden's America"

 by Michael C. Dorf

When the speakers at last week's Republican National Convention were not trying to persuade America that there exists a hitherto-unseen Donald Trump who is a competent and compassionate human being, they were mostly issuing a not-at-all-veiled warning to suburbanites that Joe Biden's America will feature widespread and nonstop violence. As numerous commentators observed, the message is odd. Trump is warning that what people are seeing on the news from Portland, Chicago, Kenosha, and other "Democrat-run" cities will happen if Biden is elected, but of course, the people are seeing what's happening now, in Donald Trump's America (except for the video clip of Barcelona in 2019 that the RNC aired).

Trump came into office promising to end "American carnage" that did not exist. He's running for re-election warning that his opponent will bring about carnage even as he himself has done just that. Who would possibly buy that argument?

Here I want to suggest--worry might be a better word than suggest--that millions of Americans might buy it. Do you remember your President Nixon? He ran for office in 1968 in an extraordinarily violent time because of high-salience assassinations of Martin Luther King, Jr. and Robert Kennedy as well as an upward trend in violent crime, punctuated by civil unrest and violence sparked by institutional racism and police misconduct (as detailed in the Kerner Commission Report released that year). It is easy to see how Nixon's tough-on-crime message as part of his "Southern Strategy" resonated with white voters. It's harder to see why Trump's 2016 racist message on crime did, in light of the fact that crime rates were very low during the Obama years.

But I'm not interested now in contrasting Nixon's 1968 campaign with Trump's 2016 campaign. Instead, I want to compare their messages in, respectively, 1972 and 2020. One might well think that voters would have punished Nixon in 1972 for the failure of his get-tough approach. After all, violent crime continued its steady rise from Nixon's inauguration in 1969 through the election in November 1972 (and beyond). And yet Nixon won re-election in a landslide. Did voters stop caring about crime? That's highly doubtful. A more plausible explanation is that bad as crime was under Nixon, voters worried that it would be worse under McGovern.

Friday, August 28, 2020

The Complexity of Free Speech Doctrine

 by Michael C. Dorf

At 9 am today (that's Friday, August 28, 2020 if you're not sure when I wrote this), I'll be presenting a "Keynote" address on freedom of speech, available for free (but you need to register) through eCornell. This is a lecture for an all-day “boot camp” we provide for students taking Cornell's terrific First Amendment clinic. Most but not all of the clinic students will have taken our doctrinal class in the First Amendment (taught by my colleague Professor Nelson Tebbe). The boot camp lectures provide an overview for those who haven't and a refresher for those who have. I’ve given a version of the free speech lecture the last couple of years in person. We decided to open it up more broadly this year in light of the fact that it will be via electronic means anyway. The clinic students will be able to ask questions via Zoom, whereas the rest of the world will be able to enjoy (or detest or be bored by) my lecture as a webinar.

When I give remarks on a panel, I customarily preview them on the blog. Today I won't do that, because the webinar/boot camp is more in the nature of a class, in which I don't expect to say anything especially original or insightful. My goal in the lecture is to provide a kind of map of free speech doctrine. So, besides providing an advertisement for the course, what is my point in today's blog post? I'd like to say a few words about the complexity of free speech doctrine and what that tells us about constitutional interpretation more broadly.

Thursday, August 27, 2020

Why Does Congress Not Run the Post Office Like a Business -- i.e., With Lax and Forgiving Rules?

by Neil H. Buchanan
 
Who could have imagined that the United States Postal Service would become a flashpoint in a national election, especially in the midst of a global health crisis?  Yet here we are, with movement conservatism's longstanding loathing of the Post Office having joined in an unholy alliance with Donald Trump's efforts to convince the world of the complete lie that mail-in voting is rife with fraud.

Here, I want to focus on the non-Trumpian side of that alliance, that is, on the decades of efforts by anti-government extremists to disparage the very idea of a national postal system run as a public service by the national government.  The reasons for that bone-deep hatred of the USPS are perversely fascinating on their own (de)merits, but there is a deeper hypocrisy involved as well.

Wednesday, August 26, 2020

We are All Legal Realists Now

 By Eric Segall

"Justice Douglas, you must remember one thing. At the constitutional level where we work, ninety per cent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections."  Chief Justice Charles Evan Hughes 

Last week I had the pleasure of having Mike on my podcast/video series Supreme Myths and, among other things, we had a nice chat about legal realism. This topic is extremely important given the trope that has been circulating among scholars and even Supreme Court nominees that Elena Kagan said at her confirmation hearing, "we are all originalists." This statement was proudly repeated by Justice Kavanaugh at his confirmation hearing, and it has been thrown at me numerous times during my debates with originalists, who often add the word "now" to Kagan's quote.

This post argues that originalists employing Kagan's line to defend originalism ignore the context of her statement. I also suggest that "we are all legal realists now" presents a much more accurate understanding of constitutional interpretation as it is actually practiced by our judges than the slogan "we are all originalists now." This post is purely descriptive and leaves normative concerns for another day.

Tuesday, August 25, 2020

Taking Another Look at Biden and Harris: More Than Good Enough!

by Neil H. Buchanan

It is political convention season, and I am deliberately not watching coverage of either party's virtual events.  Getting my information second-hand, it appears that the first night of the Republicans' extended-play version of Two Minutes Hate went even worse than expected.  Democrats, meanwhile, finished their event last week to generally quite positive reviews.

My big worry about the Democrats' approach is that they seem to have aimed their message entirely at the moderation-obsessed punditocracy, betting the house on the idea that playing the centrist card and eschewing ideology of any sort will allow them to appeal to the possibly null set of swing voters.  In an election almost certain to be decided by turnout, Democrats seem to be counting on people of color and younger maybe-non-voters to show up at the polls in droves, without really giving them an affirmative reason to do so.

To be sure, the negative reasons are more than enough, and I will once again spend much of the general election season trying to exhort people to understand just how bad Donald Trump is.  Sitting it out should not be an option, and I guess Joe Biden and the leaders of the Democratic Party made the calculation that non-centrists will still be motivated even after watching the convention elevate Republicans while sidelining progressive stars.

That being a matter of prediction, all I can say is that my semipro status as a political commentator means that one should take it with a grain of salt when I worry that the Democrats miscalculated.  I can at least say that, given what they tried to do, they seem to have done an absolutely great job of it.  One hopes that it pays off.

My goal here, however, is to take a moment to reassess positions that I took on Biden and Kamala Harris over the space of the last year or so.  As I (and many, many others) have said all along, no matter who ended up on the Democratic ticket, there would be no contest when comparing them to Trump and Mike Pence.  Even so, I did take some rather harsh stances against both Biden and Harris.  Should I recant?
 

Monday, August 24, 2020

What is Nonoriginalism? A Response to Professor Ramsey’s Misunderstanding of our Analysis of the Natural Born Citizen Clause

 By Michael C. Dorf & Martin S. Lederman

Earlier this month, Chapman law professor John Eastman wrote an op-ed in Newsweek proposing that Senator Kamala Harris might not be a “natural born citizen” (NBC)—and thus not eligible to be elected Vice President—if her parents, who were foreign nationals rather than U.S. citizens, were not permanent U.S. residents at the time of her birth in California. The op-ed’s title suggested that Professor Eastman was only raising questions, but its content affirmatively argued against Senator Harris’s eligibility to be president if her parents were “merely temporary visitors.”

Professor Eastman’s op-ed was quickly weaponized by Donald Trump and his supporters, who used it to provide a patina of respectability to a repurposed “birther” attack—once again targeting the historic candidacy of a person of color. Accordingly, it was important to set the record straight by showing that Professor Eastman’s view is not merely unorthodox but well beyond the limits of reasonable disagreement among well-informed scholars. Thus, we joined 39 other constitutional scholars who signed a letter explaining what was so very wrong with Professor Eastman’s analysis.

Our letter first explained that Professor Eastman mistakenly focused almost exclusively on the citizenship clause of the Fourteenth Amendment rather than the most relevant constitutional provision—the NBC clause of Article II. That clause, we explained, is at the very least informed by the common law idea of a “natural-born subject,” and for many centuries that common law had covered people such as Senator Harris who were born within the sovereign territory, subject only to narrow exceptions not implicated by her circumstances. Meanwhile, we noted that even on its own terms—as an interpretation of the Fourteenth Amendment—Professor Eastman’s analysis badly misfired. Among other difficulties, his view, if accepted, would not merely deem Senator Harris and millions of other Americans like her ineligible for the presidency and vice presidency but would strip them of their citizenship entirely (which would mean, among other things, that Harris and many other federal legislators wouldn’t be eligible to serve in Congress).

Because it expressed the extremely conventional wisdom, the letter we signed garnered support from scholars with a wide range of views on a great many subjects. It would surely have garnered even more support if the organizers had held it open for voluntary signatures rather than soliciting signatures from particular individuals (as they did in order to publish it quickly, which is the same reason we did not solicit signatures for this sur-reply from a larger group). In a post on the Originalism Blog, University of San Diego law professor Michael Ramsey wrote that he would have signed it, too, at least if it had included “a couple of minor modifications.”  We very much appreciate his general support for our conclusion about Senator Harris. Statements like his and one by UCLA law professor Eugene Volokh underscore that Eastman’s view falls nowhere within the range of opinions held by scholars with a very wide variety of methodological and ideological commitments.

In addition to agreeing with the substance of the response to Professor Eastman, however, Professor Ramsey implicitly accused at least some of the letter’s signers (including one of us by name) of hypocrisy, although Professor Ramsey was too polite to put the charge that pointedly. Professor Ramsey observed that some of its signers “are prominent originalism critics (Erwin Chemerinsky, Michael Dorf, Pamela Karlan, etc.). Yet here they rely on originalist arguments.” With due respect, we think that Professor Ramsey misunderstood both what the letter said and the nature of the broader critique of originalism. 

Friday, August 21, 2020

Bannon, the NRA, and their Victims

 by Michael C. Dorf

After NY Attorney General Letitia James announced that she was filing a lawsuit to dissolve the NRA for defrauding its donors, various wags (including the wags at NPR's Wait Wait Don't Tell Me news quiz) joked that prosecuting the NRA for defrauding its members would be harmful to the movement for gun control. Advocates of gun control should be pleased that its leadership was using donations from members for fancy clothes and vacations rather than to promote gun rights. That was a joke, in part because the remedy of dissolving the NRA would serve the interest of gun control too.

But still, one might think that the gun control movement would be better off with the NRA leadership siphoning off funds that would go to promote gun rights if it is displaced by a more honest organization with the same ideological aims. Of course, in saying that, I do not mean to imply that the ideological aims played any role in the decision of AG James to pursue the case; it would be improper to go after the NRA on those grounds, using the corruption allegations as a pretext. I'm raising the issue as an observer.

The same issue is raised by the criminal case now being brought against Steve Bannon for his having defrauded donors to his We Build the Wall organization. Isn't it better that a large chunk of the money that Trumpy donors gave to Bannon to build a private section of Trump's border wall go to paying for the expensive lifestyle of Bannon and his partners in fraud than to actually building even a small part of the wall?

The short answer in both cases is no. Corruption should be opposed, even when it takes the form of siphoning off money from bad causes.

Thursday, August 20, 2020

Turning the Little People Against Each Other Is Conservatives' Second Most Reliable Strategy

by Neil H. Buchanan 
 
The eviction crisis in America is no longer "looming" but has already begun, thanks to Senate Republicans' refusal to extend protections against evictions and also to their cavalier opposition to renewing income supports for people who have been laid off during the roiling economic disaster of 2020.  The Trump Administration joins its Senate enablers in not caring about those millions of desperate people -- people who are not only losing their homes but are having their credit records tainted in a way that will make their lives more difficult for years or even decades to come.
 
John Oliver's "Last Week Tonight" did a typically great job discussing this then-pending crisis more than a month ago.  Earlier this week, I took a different tack and asked why the supposedly brilliant aggregation mechanism known as the Invisible Hand did not cause people on both sides of potential evictions rationally negotiating solutions that would avoid that bad outcome.  After all, the landlords and mortgage lenders are all living in the same disastrous economy that their renters and borrowers live in, and it is not as if there is a reserve army of qualified renters and buyers ready to fill the residences that evictions are currently emptying out.
 
(Side note: My use of the term "reserve army" here and in Tuesday's column is a reference to Marx's "reserve army of the unemployed," which captures the idea that employers like weak economies because unemployed would-be workers are a useful threat to current workers who might otherwise get uppity.  The analogy here is, I hope, obvious, even if the lefty nerd-reference is understandably obscure.)

My hypothesis in Tuesday's column was that the failure to renegotiate leases and mortgages was essentially a matter of tunnel vision, with the non-breaching side of housing contracts stubbornly insisting on doing during a crisis what they would be doing about "deadbeats" when times are good.  Here, I want to discuss the broader reasons why our system seems so incapable of groping its way toward a next-best solution that is both humane (preventing evictions and all that follows from them) and economically smart (reducing losses for owners/bankers as well as for their counter-parties).
 
To be clear, I refer to contract renegotiations as the "next-best solution" because the best policy would clearly involve spreading the losses more broadly through a Treasury-funded system of supports that would allow people to cover rent payments and mortgages in full each month.  My hypothesis is that the divide-and-conquer strategy that conservatives have long used to turn people against each other causes far too many regular Americans themselves to decry these solutions as immoral bailouts.  This, in turn, allows business interests and their Republican water carriers to continue to punish people for being the victims of bad luck.

Wednesday, August 19, 2020

The Justice Souter Speech Every Law Student Should Read

 By Eric Segall

School is starting again, sort of, and many law students will be taking constitutional law in one form or another. At most law schools, students will begin with Marbury v. Madison, or maybe McCulloch v. Maryland, and then work their way through over 200 years or so of Supreme Court cases involving many of our country's most difficult legal, social, and political issues. It is important that these students understand how the Supreme Court explains its decisions--usually in this form: here are the facts, here is the text relevant to the case, here is the history, here is the case law, and presto here is the conclusion. 

But it is also important that students understand that the Court rarely gives a full and accurate picture of why it rules the way it does in constitutional law cases. To truly understand constitutional law, and maybe more importantly, to develop critical thinking skills, which every lawyer needs, students need to be able to see and understand what Professor Jeremy Telman calls the "ipse dixit" moment in constitutional decisions. To oversimplify Telman's fine work, the ipse dixit moment is the crucial but non-textual, non-historical, non-precedent based value judgment that controls most constitutional decisions. 

Former Supreme Court Justice David Souter, shortly after his retirement, gave a commencement speech at Harvard that provides a much more accurate firsthand account of how the justices decide constitutional law cases than the one many law professors and Court commentators provide. Souter's speech should be required reading for all law students taking their first constitutional law course. This post summarizes the most important parts of that speech in order to demonstrate that formalist accounts of constitutional law fail to capture how the Justices actually operate or even could operate.

Tuesday, August 18, 2020

Why Would Any Landlord Evict Any Innocent Renter During a Crisis This Bad?

by Neil H. Buchanan

One of the many, many crises facing the country today is the very immediate threat that millions of Americans will soon be evicted from their homes, whether those homes are owned or rented.  With more than 16 million people currently unemployed (ten million more than in February) and millions of others suffering from declining incomes, and with various types of federal assistance having expired three weeks ago, things are looking more and more dire.

The big political story here is obviously the utter lack of concern that Republicans in the Senate and in Donald Trump's administration have shown for the plight of these people, none of whom did anything to deserve this terrible turn in their lives.  Because the sensible (and humane) policy responses to the current problem are blindingly obvious and not at all difficult to enact and implement, Trump and his enablers' indifference is all the more disgusting.

Because this human tragedy has a non-mysterious policy solution, however, there is nothing new to say about what a first-best path would entail.  That policy response is not currently in the cards, however, so I want to use this space to discuss a more interesting related question: Why are the people who are directly involved not being at least minimally creative in thinking about how to respond to the now-ongoing eviction crisis?
 
In particular, if economic markets were as magically capable of reaching socially optimal outcomes as conservatives say they are, would we not expect people to have figured out a way to "contract around" the eviction problem?  Put differently, why are landlords and banks not seeing that evicting people is most likely not even in the evicters' own self-interest?

Monday, August 17, 2020

Vertical Precedent in the Challenge to Male-Only Draft Registration (and Beyond)

by Michael C. Dorf

Last week, a panel of the US Court of Appeals for the Fifth Circuit reversed a district court judgment that had found male-only draft registration to be an unconstitutional denial of equal protection. The terse opinion in National Coalition for Men (NCM) v. Selective Service System was based on the following reasoning: (1) the Supreme Court rejected the contention that male-only draft registration was unconstitutional sex discrimination in the 1981 case of Rostker v. Goldberg; and (2) lower courts are bound to follow the holding of a precedent by a higher court "even where subsequent decisions or factual developments may appear to have ‘significantly undermined’ the rationale for [the] earlier holding."

Proposition (2) includes a quotation from a dissent by Justice O'Connor in Roper v. Simmons, but as the Fifth Circuit opinion correctly notes, the same proposition can be found in majority opinions in State Oil Co. v. Khan (1997) and Rodriguez de Quijas v. Shearson/Am. Express, Inc. (1989).

The Fifth Circuit's reasoning looks sound, which leaves us with a puzzle. Federal district courts are bound by both appeals court precedents in their circuits and SCOTUS precedents. Why, then, didn't Judge Miller likewise make short work of the plaintiffs' arguments? The answer is that the State Oil/Rodriguez rule is highly problematic.

Friday, August 14, 2020

Hoarding and School Reopenings

 by Michael C. Dorf

My father passed away last month at the age of 89. (He did not have COVID-19.) Since my mother's death in 2013, my dad had lived alone in the house in which I grew up, maintaining a very active social life chiefly consisting of getting together with friends and family as well as attending concerts, operas, lectures, ballets, and films. During the pandemic, I spoke with him by phone every day but could not see him in person for fear of exposing him to unnecessary medical risk. I initially believed that I was calling daily to check up on him and to help him avoid social isolation, but I soon discovered that I looked forward to our talks as the highlight of my day. I also came to think of his physical isolation as an accidental blessing. For several years, my sister and I had been urging our father to sell his house and move to an apartment in something like assisted living, because his balance and physical stamina had declined (though his mind remained sharp). That he had remained in his longtime home instead meant that during the pandemic he was not exposed to the risks to which many older people living in group settings have succumbed. Would his decision to remain in a large suburban house been sensible even had there been no pandemic?

I remember a conversation we had a few years ago when I raised the possibility of moving. "All my memories are here," my father objected.

"No they're not," I replied. "Your memories are in your brain. They'll move with you."

As usual on the infrequent occasions when we disagreed, dad was right and I was wrong. There is clear evidence that the brain associates memories of particular events with particular places. It also associates memories with music, smells, and objects.

Such associations are the subject of the first two episodes of Season 5 of Malcolm Gladwell's Revisionist History podcast, which examine the question why museums collect so many objects they never display and connects it to the call for the return of art stolen or sold under duress during the Holocaust and other such episodes. Gladwell diagnoses most museum curators as hoarders. Like so much of Gladwell's oeuvre, these episodes include what are surely over-generalizations, but they also include genuine insights into hoarding--many of them drawn from a book on that subject by Gail Steketee and Randy Frost. I found the insights particularly interesting because it has only lately dawned on me that maybe my father was a hoarder.

Thursday, August 13, 2020

The Discomforts of Assessing Jim Crow-Era Politicians

by Neil H. Buchanan

Brown v. Board of Education is, of course, one of the landmark Supreme Court cases in American history and a touchstone in constitutional law.  To this day, legal scholars try to make sure that their preferred interpretive theories comport with the outcome in Brown -- even when those theories seem to point in the opposite direction -- because the idea that the U.S. Constitution would allow public schools to be segregated by race is simply repugnant.  No one, it seems, wants to be on the wrong side of that history.

But many people were very much in the wrong at the time and for a long while thereafter.  Moreover, even though being anti-Brown is now a fringe position, it is difficult to look at the country's regression toward open racism in the Trump era and not think that a depressingly large number of current American politicians and citizens would be willing to reject Brown today.  Once, "massive resistance" was the order of the day among almost all Southern politicians.  Now, although I hope that I am being too pessimistic, it seems increasingly clear that a very large minority of the country is not as committed to desegregation as we might have hoped.  (Donald Trump's missives to "suburban housewives," playing on racist fears about low-income housing, are certainly premised on that likelihood.)

I have been thinking about Brown again lately, because it came up indirectly in my research as I wrote last Thursday's column, "The New Poll Tax in the Florida Felon Disenfranchisement Mess."  There, I discussed another major achievement of the Civil Rights era, when Congress and the states adopted the 24th Amendment to the United States Constitution, the pertinent part of which reads: "The right of citizens of the United States to vote ... shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax."
 
Here, I want to contrast the political reaction in the South to Brown with support by some segregationists for the 24th Amendment.  One might reasonably have expected that white supremacists would have been just as firmly opposed to both civil rights advances, but in fact one of the most prominent anti-Brown voices was key in pushing the 24th through to ratification.  Why the difference?
 
I hasten to say that I am not a historian, and I do not intend to claim any special insight regarding the deep and complicated factors at play in the Jim Crow South.  Instead, I am approaching this as part of the process of asking how we should assess historical actors who were on the right side of one issue but the wrong side of others.  In particular, what do we do about buildings named after those politicians?
 

Wednesday, August 12, 2020

A Few More Thoughts on Supreme Court Secrecy

by Daniel Epps

I'm pleased to be blogging at a venue I've been reading with pleasure for years. In my in inaugural post, I thought I'd offer a few more thoughts on the topic that has been on my mind this last week: secrecy at the Supreme Court. Mike has a thoughtful post on the topic, partly responding to my piece. I agree with much of what he says, and in any event I won't use my first post here to offer a rebuttal to the blog's founder and namesake! Instead, I'll just note that in my first-best world, we woudn't necessarily have more leaks. But we would have guaranteed disclosure, within a fixed and relatively short time period, of information that the current system treats as confidential. I'd like to see such a system adopted as a matter of formal rule or statute. 

In terms of exactly how long that short time that period should be: I could live with ten years, though I suspect the necessary time limit to prevent disclosure from causing serious harm to the deliberative process might be a good deal shorter. Indeed, I think there may even be a significant difference betweeen (1) disclosure before the decision, or within a few days of its announcement; and (2) disclosure a few weeks or months after the decision, by which point the Court and the decision will be much less salient in the public eye. But in any event, some required disclosure after some set period would be an improvement. 

The specific reforms I'd like to see would have a couple of components: (1) an expiration date for confidentiality obligations binding law clerks and other insiders and (2) mandatory retention and disclosure of internal Court papers (memos to the conference, draft opinions circulated to other Justices, and the like). Right now, what we have is a system in which informal norms and practices govern this kind of disclosure. 

Tuesday, August 11, 2020

In the Pandemic, a Little Bit of Economic Knowledge Is Even More Dangerous Than Usual

by Neil H. Buchanan

Watching Republican politicians try to talk about economics is a combination of hilarious and terrifying.  With few exceptions, they are mouthing talking points that they do not understand, hoping to sound intelligent by intoning phrases like "incentivizing people not to work," "fiscally irresponsible borrowing," or "inefficient allocation of resources."  Their only true skill is figuring out how to dodge followup questions from reporters.

Of course, there are also many Democrats who similarly know nothing but what staffers have written for them, which means that it is not in fact the politicians who are making themselves themselves look good or bad.  Ultimately, what matters is whether the talking points themselves are actually defensible.
 
And one genuine public service that Republicans have performed over the past generation is proving that -- spin or no spin -- they as a group have zero understanding of how economics works.  This unwillingness to learn is especially surprising, moreover, because they have lived through two huge real-life lessons (the Great Recession of 2009-10 and the Trump-fueled disaster of 2020-22) that amply demonstrate that Republicans' obsession with punishing people for losing their jobs (among many other articles of conservative faith) makes no sense -- and is cruel to boot.

Even though the Republicans' bad economic ideas are thus not a matter of particular individuals making analytical mistakes, however, there are occasionally some politicians who try to hold themselves out as brilliant thinkers who understand economics better than everyone else.  The thankfully-former House Speaker Paul Ryan was a particularly sad and destructive case of a B or B+ undergraduate student who thought that he should have written the textbook, but current Senator Rand Paul is in some ways even worse.

At the beginning of my Verdict column last week, "Economic Theory Shows that People Will Make Choices that Worsen the Pandemic," I discussed Republicans' insane belief that unemployment benefits cause people not to take jobs (that do not exist).  Because that was relatively familiar ground, however, I then turned to an especially silly public performance by Rand Paul, where he debuted what one might call his "My expert is better than your expert, but screw experts, anyway!" approach to the pandemic.

Here, I will briefly go back over the particulars of what Paul said, in order to center the discussion.  More importantly, however, it is important to discuss the larger disease of which Paul's outburst is merely a symptom: the belief among conservatives that "economics proves" that government is always the problem.  Paul extends that faith-based belief into epidemiology, which is dangerously absurd but also usefully exposes the logical fallacy on which he and his cult rely.
 

Monday, August 10, 2020

Deliberate Indifference

by Michael C. Dorf

There is so much that is wrong with the Supreme Court's order last week in Barnes v. Ahlman that it is hard to know where to begin. A federal district judge ordered an Orange County, CA jail to implement various measures to reduce the risk of COVID-19 spread among the inmates and pre-trial detainees who are housed there. The Ninth Circuit declined to stay that order pending appeal, but the SCOTUS took what used to be the extraordinary step--but has become an increasingly common step--of intervening to stay the injunction without opinion. The vote was 5-4, with the Republican appointees in the majority. Justices Breyer and Kagan dissented but did not write. Justice Sotomayor, joined by Justice Ginsburg, did. I commend her dissent to readers. Here I'll note a few key points before turning to my own contributions.

Friday, August 07, 2020

Arrogant Nuttiness: Constitutional Law in a Justice Thomas World

By Eric Segall

Much has been written about Justice Clarence Thomas' oft espoused view that he doesn't believe in following prior cases if they were obviously decided incorrectly. Whereas all the other Justices at least pay lip service to ideas of reliance, predictability, and other rule of law type values inherent in the nature of stare decisis, Thomas rejects those factors. In his own words (and please forgive the long but necessary quote):
In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions...over the text of the Constitution and other duly enacted federal law. It is always 'tempting for judges to confuse our own preferences with the requirements of the law,' Obergefell v. Hodges (Roberts, C. J., dissenting), and the Court’s stare decisis doctrine exacerbates that temptation by giving the venire of respectability to our continued application of demonstrably incorrect precedents. By applying demonstrably erroneous precedent instead of the relevant law’s text—as the Court is particularly prone to do when expanding federal power or crafting new individual rights—the Court exercises “force” and “will,” two attributes the People did not give it. The Federalist No. 78....We should restore our stare decisis jurisprudence to ensure that we exercise 'mer[e] judgment,' ibid., which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying. In my view, anything less invites arbitrariness into judging.
There are so many troubling aspects of this paragraph that it is hard to know where to begin, but this piece is as much about Thomas's substantive vision of the Constitution as his uniquely crazy views about prior cases and the rule of law. Therefore, before diving into the major cases Justice Thomas would overturn, it would be beyond human nature for me not to mention that virtually no constitutional cases the Justices decide to hear can be decided by the "text of the Constitution."

Thursday, August 06, 2020

The New Poll Tax in the Florida Felon Disenfranchisement Mess

[Note to readers: My new Verdict column, "Economic Theory Shows that People Will Make Choices that Worsen the Pandemic," was published this morning.  Typically, we at Dorf on Law pair a follow-on column here to expand on some aspects of our Verdict columns.  I plan to do that next Tuesday rather than today, however, because I want to discuss an important case that is pending in the 11th Circuit.  As I will describe below, I have now co-signed an amicus brief in that case.]


When is a tax not a tax?  According to a new amicus breif that twelve other tax law professors and I co-signed this week, the constitutional prohibition on imposing a "poll tax or other tax" most definitely applies to taxes that are given a different label (fees, fines, and so on).  Drafted by some excellent lawyers at Debevoise and Plimpton, the brief argues that anything that functions as a tax -- an obligation to pay the state that carries the force of law -- cannot be used to deny any American the right to vote.

That is the bottom line.  How we get there matters, of course, in particular by making it clear that intent -- even the intent to collect money for public purposes -- is not what makes a tax a tax.  Without a broad definition of taxes for constitutional purposes, motivated legislators could choose to take away voting rights even -- or, as strange as it may seem, especially -- if they did so by admitting that they were imposing financial obligations for explicitly anti-voting purposes.

There is a lot to discuss here, and to understand what is at stake, we need to go back a couple of years.