Friday, February 28, 2020

Justice Thomas Uncharitably Characterizes His Own Opinion in Brand X

by Michael C. Dorf

On Wednesday I explained why Justice Thomas is wrong in arguing, as he did in his dissent from denial of certiorari in Baldwin v. United States on Monday, that Chevron deference to administrative agencies is unconstitutional. His argument, I explained, relies on an unnecessarily maximalist understanding of Chevron, seeing that case as mandating judicial abdication of the authority to construe the law in favor of administrative interpretation rather than as simply a presumption of statutory interpretation according to which congressional use of vague or ambiguous language in agency-empowering statutes acts as a delegation of policy-making discretion to agencies.

Today I want to focus on Justice Thomas's further argument (in part II of his Baldwin dissent) that even accepting Chevron, his own majority opinion in the Brand X case should be overruled. He writes: "By requiring courts to overrule their own precedent simply because an agency later adopts a different interpretation of a statute, Brand X likely conflicts with Article III of the Constitution." (The "likely" in that sentence apparently reflects the fact that Justice Thomas is nominally calling only for the re-examination of Brand X, deferring the decision whether to overrule until after argument, but his druthers are nonetheless clear.) With due respect, Justice Thomas is uncharitably characterizing his own opinion in Brand X.

Thursday, February 27, 2020

How to Spin a Plausible, Silly Political Theory -- and How That Distorts Commentary on Trump

Note to readers: My new Verdict column today takes a break from pessimism and looks (with a small amount of success) for reasons to be optimistic about the U.S. constitutional system.  My column here does not build on the Verdict piece, but I encourage you all to read -- and possibly enjoy -- both.

by Neil H. Buchanan

Did you know that the Change Candidate always (at least since 1960) beats the No-Change Candidate in U.S. presidential elections?  Other than when formerly Change Candidates run for reelection, this is true -- every time.  And even when a president is running for a second term, the basic logic still works -- every time.

Although what I wrote above is mostly true (which I will demonstrate momentarily), the whole exercise is absolutely pointless and nonsensical.  Let us put aside for today thoughts of the doom of our constitutional system and work through a demonstration of armchair analysis that would be on the high end of U.S. political punditry, if only I could say it with a straight face.

Moreover, this inanity is not innocuous.  Even pundits who do not support Donald Trump end up using this framing in a way that inaccurately and harmfully builds him up into something that he is not.

Wednesday, February 26, 2020

Justice Thomas Was Right Before and Wrong Now: Brand X and Chevron Should Not Be Overruled

by Michael C. Dorf

Dissenting from the denial of certiorari on Monday in Baldwin v. United States, Justice Thomas urged his colleagues to reconsider and overrule its 2005 decision in National Cable & Telecommunications Assn. v. Brand X Internet Services. Justice Thomas himself wrote the opinion for  the Court in Brand X. While he deserves praise for showing a willingness to change his mind, his dissent is wrongheaded. Justice Thomas was right in 2005 and wrong now.

Although the Baldwin cert petition targeted Brand X, the real quarry for Justice Thomas is the doctrine on which it relies: Chevron deference to agencies. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., permitted the Reagan administration EPA to apply a more lenient interpretation of the term "stationary source" in the Clean Air Act than had the Carter EPA on the ground that an agency's reasonable construction of an unclear statutory term is entitled to deference by reviewing courts. Brand X applied Chevron even in a context in which the prior contrary construction was given by a court rather than by the same agency under a different administration. Part II of Justice Thomas's dissent argues that even if Chevron is right, Brand X is wrong. In a follow-up column, I'll explain why he's mistaken about that. Today I want to focus on what he says about Chevron itself.

In his Baldwin dissent, Justice Thomas says that "Chevron is in serious tension with the Constitution, the APA, and over 100 years of judicial decisions." Here I'll address his extremely dubious constitutional arguments, because if he's wrong about them, then he offers only sub-constitutional grounds for overruling Chevron. I think those arguments are also weak, but even if the sub-constitutional grounds were more substantial, that would not warrant overruling. Chevron is ultimately a default rule of statutory interpretation, which Congress can change if it so chooses. There is no need for action by the Court that would unsettle decades of administrative law jurisprudence on which Congress and the agencies have relied. That's a step Congress can take, but if it doesn't, the Court shouldn't.

Tuesday, February 25, 2020

How Democrats Treat Sanders Now Will Define Them -- Perhaps Not Well

by Neil H. Buchanan

It is hardly news that the liberal establishment is absolutely freaking out about Bernie Sanders, just as it previously freaked out in an (apparently successful) effort to tear down Elizabeth Warren's candidacy last summer and fall.  Now that Sanders seems on the verge of locking up the Democratic Party's presidential nomination, things are truly getting weird at the top.

It is not as though things have been sane in the suites of Democratic influencers up until now.  Last April, I wrote two columns describing the group panic that had Democratic insiders making all kinds of scurrilous attacks on Sanders.  And even on a less panicked level, the so-called moderates (whose moderation nearly always manages to lean right on economic and foreign policy) have been deliberately maligning the progressive candidates' positions.

Thus, just a couple of weeks ago, the editors of The Washington Post wrote that "Sens. Bernie Sanders (I-Vt.) and Elizabeth Warren (Mass.) not only want to make sure that all Americans have access to health care, as do all the Democrats, but they want maximum government control in achieving that goal."  Even as jaded as I have become when reading self-identified centrist liberals' smug attacks on progressives, after reading that particular passage I found myself saying out loud (thankfully in an empty room): "Oh, f_ck you!!"

But that kind of casual red-baiting is not the worst of it, by any means.  And now that the party's guardians of the status quo are in the midst of a collective breakdown, it is useful to ask just how far they will go in attacking Sanders -- and where that will leave them if (most likely when) Sanders overcomes their opposition and wins the nomination.

The short version of this is that the anti-Sanders people have a choice of defining themselves as being either guardians of the rule of law or protectors of the "malefactors of great wealth" (in Theodore Roosevelt's immortal words).  Thus far, it is not looking good for the rule of law.

Monday, February 24, 2020

A Corrected Harvard Law Review Note Now Accurately Reflects the View of the Dorf/Koppelman/Volokh Brief in the Arkansas Anti-BDS-Law Case

by Michael C. Dorf

A recent Note in the Harvard Law Review (also available here as a pdf) argues that state laws banning boycotts of Israel (so-called anti-BDS laws) cannot fairly be justified by claiming that such boycotts involve illicit discrimination or antisemitism and that therefore they should not be characterized as anti-discrimination laws. I think I might agree with that core claim. After all, although some people who support the BDS movement are motivated by antisemitism, many simply oppose various policies of the Israeli government.

To be sure, some proponents of anti-BDS laws argue that participants in the BDS movement unfairly single out Israel. Why don't the proponents of BDS boycott Russia (which illegally occupies Ukrainian territory), China (which occupies Tibet and has sent over a million Muslims to reeducation camps), or other countries that violate human rights? The singleminded focus on Israel, BDS opponents say, bespeaks a bias.

How widespread is such a bias? Absent solid empirical evidence on that question, I think it is difficult to say whether anti-BDS legislation can be fairly characterized as a species of anti-discrimination law.

Nonetheless, as a policy matter, I oppose anti-BDS legislation and have previously stated that opposition in a blog post just under a year ago and another one that was posted both here and on the Volokh Conspiracy blog last June. Accordingly, I was surprised when I found that the original version of the Note described me and my co-signers of a brief in the Arkansas Anti-BDS Law Case--Professors Andrew Koppelman of Northwestern and Eugene Volokh of UCLA--as "supporters of anti-BDS laws," even though we acknowledged that such laws might well be "unwise, especially when applied to small service providers." Ours was a brief arguing for the constitutionality of anti-BDS laws, not for their enactment.

Thus, I am pleased to report that after we called the error to the attention of the HLR, the editors amended the Note in the online version. They also generously appended the following statement:
A prior version of this Note incorrectly suggested that the authors of the Dorf Brief -- Professors Michael C. Dorf, Andrew M. Koppelman, and Eugene Volokh -- are supporters of anti-BDS laws in the text accompanying note 77 and opponents of BDS in note 137.  Dorf, Koppelman, and Volokh do not advocate for or against the laws in their brief, but only evaluate the laws' constitutionality.  The Review regrets the error. 
It's too late to amend the printed versions of the HLR, but I am nonetheless very grateful to the HLR for acknowledging the error and doing what was possible to correct it. I also take some comfort in the fact that these days the electronic versions of journal articles probably attract more readers than the printed versions.

I'll use the balance of this post to say a few words about the substance of our position and how it differs from the way in which it was described before the correction.

Sunday, February 23, 2020

Statement of Former Reinhardt Law Clerks

by Michael C. Dorf

After a former law clerk to Judge Reinhardt testified before a House subcommittee about how he sexually harassed her, other former law clerks reacted with supportive comments. For example, I posted a personal statement saying that I believe her account and echoing her call for better systems for training, deterring, reporting, and responding to such conduct in the judiciary. Late last week over 70 former Reinhardt clerks (including me) signed a statement expressing those sentiments and more. Our statement, which has received some media attention, appears here.

Friday, February 21, 2020

Why Is That Rich, Oblivious, Red-Baiting Guy on the Debate Stage?

by Neil H. Buchanan

How far should candidates go in attacking each other during primaries?  How unfair is too unfair?  How awful is too awful?  Former Mayor Michael Bloomberg decided to cross the line two nights ago, and he went so far past it that I was temporarily at a loss for words.  But the red-baiting plutocrat actually did us an inadvertent favor, because in crossing that line, he actually exposed a deep similarity between communism and (Bloomberg's version of) capitalism.

I have been very hard on Pete Buttigieg and Amy Klobuchar for their unfair treatment of Elizabeth Warren, especially when they have falsely accused her of being vague and unrealistic.  Even so, those attacks might arguably not be the kind of thing that can readily translate into attack ads for the Republicans.  The difficult balancing act for candidates is in saying, "I'm better than her/him," without saying "She/He should never be president."  So let me be clear here.  If Bloomberg is the nominee, he should be president.  Trump is the alternative.  But Bloomberg came closer than I ever thought possible to making me think that the Democrats could end up with a candidate who should never be president.  And I am not talking about Bernie Sanders.

Bloomberg's gall is shocking, but understanding the root of his smarmy self-confidence can be educational for the rest of us.  We begin, however, by looking at what Bloomberg did that earned such excoriation.

Thursday, February 20, 2020

Someone Should Tell Trump About Prosecutors' Absolute Immunity

by Michael C. Dorf

I believe myself to be, overall, a pretty good parent, but like most parents, I've said or done things I regret. A low point for me came when my then-five-year-old daughter was resisting being dropped off for the first day of a half-day summer day camp at the local Y. I had a work meeting for which I was late and she was grabbing onto my leg and refusing to go with the "nice lady" (a teenage counselor) to play with the other five-year-olds. After my various efforts at coaxing and cajoling had failed, I resorted to a threat. "I guess I'll have to call the police," I said sternly.

My daughter looked at me and said with disdain and anger: "This is not the kind of thing you call the police for." She was right, of course. Needless to say, I did not call the police, and eventually she calmed down.

Knowing who can be held accountable for what by whom and in what way is much of what knowing about the law entails. Accordingly, I was proud of my daughter for intuitively understanding the scope of the criminal law and how it differs from the mechanisms available for resolving other sorts of disputes. I would like to say she was precocious in that regard, but upon reflection, I would acknowledge that even an average five-year-old would probably be surprised by a parent actually calling the police in response to a minor temper tantrum.

Which brings me to our President, who, one would think, ought to have at least as good an understanding of the legal system as an average five-year-old, because: (a) he's 73 years old; (b) he or one of the companies he runs have been parties in literally thousands of lawsuits; and (c) he's, uhm, the President. One would think that, but one would be wrong.

Wednesday, February 19, 2020

Transparency Without Accountability is Worse than Opacity (Stone/Barr/Trump edition)

by Michael C. Dorf

The call by over two thousand Justice Department alumni for Attorney General William Barr to resign over his handling of the Roger Stone sentencing recommendation provides an occasion for reflecting on a side issue that has emerged in this and other scandals of the Trump administration. One former DOJ official who has not joined the call for Barr's resignation is his former deputy, George Terwilliger, who was interviewed last week on NPR. In addition to defending Barr, Terwilliger expressed some mild criticism of the president's tweeting, but then pivoted to offer a silver lining. He said:
I would agree that it would perhaps be better if the president didn't tweet about matters of this nature that are before the Justice Department. But on the other hand, there is a level of transparency as to his position that might not otherwise be seen.
In response to a follow-up question, Terwilliger repeated the claim, stating that "there's a certain level of transparency to the public that's there. This isn't some Nixonian, behind-the-scenes improper influence."

Is that right? If the president is improperly influencing DOJ prosecutions for political ends and otherwise befouling our national discourse, does the resulting transparency provide some offsetting compensation? The short answer is no.

Tuesday, February 18, 2020

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

by Neil H. Buchanan

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

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

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

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

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

Monday, February 17, 2020

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

by Michael C. Dorf

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

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

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

Friday, February 14, 2020

Reassessing Judge Reinhardt

by Michael C. Dorf

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

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

Thursday, February 13, 2020

Why Are Trump and the Republicans Showing Even Minimal Restraint?

by Neil H. Buchanan

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

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

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

Wednesday, February 12, 2020

Maybe It Actually Is A Suicide Pact?

by Neil H. Buchanan

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

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

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

Tuesday, February 11, 2020

The Truly Subversive Message of Parasite

by Michael C. Dorf

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

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

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

Monday, February 10, 2020

The Enablers of American Evil: The Rush Limbaugh Story

By Eric Segall

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

Friday, February 07, 2020

Even Atheists Should Be Upset With Trump for Ruining Religion

by Neil H. Buchanan

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

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

Thursday, February 06, 2020

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

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

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

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

by Neil H. Buchanan

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

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

Wednesday, February 05, 2020

Legislative Purpose for Discerning Meaning Versus for Invalidation

by Michael C. Dorf

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

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

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

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

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

Tuesday, February 04, 2020

The Case for Sanders (or Warren)

by Michael C. Dorf

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

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

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

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

Monday, February 03, 2020

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

by Michael C. Dorf

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

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

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

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