Thursday, April 30, 2020

Trump's New Immigration Ban Is Potentially More Dangerous, and More Legally Vulnerable, Than You Might Think


by Anil Kalhan

When faced with criticism for his responses to the coronavirus pandemic, President Trump has reacted almost reflexively by touting his administration’s immigration restrictions as the centerpiece of its efforts. But long before the pandemic, Trump had amassed a considerable record of manufacturing “bogus emergencies” to pursue longer-term immigration policy goals. His latest immigration order might be his most brazenly disingenuous, using a pretextual response to a genuine crisis to hack away at basic features of the immigration system that Congress established decades ago and to impose his own policy preferences in their place by executive decree.

Last week, after officials scrambled to finalize the details, Trump signed a sweeping proclamation making good on his pledge on Twitter two days earlier to “temporarily suspend immigration into the United States” because of the pandemic. The order bans most noncitizens from entering the United States to become permanent residents—initially for sixty days, but potentially for longer.

In its stated rationale, its potential consequences, and its probable longevity, the new directive is different in kind from Trump’s other immigration-related measures during the outbreak. Those differences make it particularly dangerous—but also make it vulnerable to legal challenges.

Wednesday, April 29, 2020

Hypocrisy Charges Aren't Always a Double-Edged Sword: 2nd Amendment Mootness & Wisconsin Election Edition

by Michael C. Dorf

On Monday, the SCOTUS issued a 2-page per curiam order dismissing as moot a 2nd Amendment challenge to a NYC ordinance that had forbade the transport of licensed firearms from an owner's home to a shooting range outside the city. As the terse order in New York State Rifle & Pistol Assoc. Inc. v. City of New York explained, the city amended the ordinance and New York State amended its statutes in a way that provided the plaintiffs all they sought in their lawsuit. Thus, the request for declaratory and injunctive relief is moot. Citing prior practice, the per curiam left open the possibility that, on remand to the lower courts, the plaintiffs might be able to argue that the revised ordinance is also unconstitutional insofar as it forbids licensed gun owners from stopping for gas, food, coffee, or to use the restroom en route from home to a shooting range outside the city. The defendants deny that the new rule would apply so woodenly, but the SCOTUS order leaves the matter for development in the lower courts. The order also leaves to the lower courts the determination whether it is too late for the plaintiffs to amend their complaint to include a claim for damages; such a claim would not be mooted by the prospective repeal of the rule, insofar as its past application imposed compensable harm.

In a dissent joined by Justices Thomas and Gorsuch, Justice Alito argued that the case was not moot. He first contended that the new rule and law do not give the plaintiffs everything they sought, endorsing the plaintiffs' gas/food/coffee/restroom theory without even acknowledging, much less refuting, the majority's citation of the precedent for leaving such a question for remand. Justice Alito also gave a second rationale for his assertion that the case was not moot: the plaintiffs already asked for damages, he said. How so? Justice Alito wrote that "while the amended complaint does not expressly seek damages, it is enough that it requests '[a]ny other such further relief as the [c]ourt deems just and proper.' " The dissent goes on to contend that such a generic statement--which one finds in every civil complaint filed by a competent lawyer--suffices to avoid mootness, given the possibility of nominal damages (and a speculative claim of actual damages), notwithstanding the Court's admonition in a 1997 case that "a claim for nominal damages, extracted late in the day from [a] general prayer for relief and asserted solely to avoid otherwise certain mootness, [bears] close inspection."

Who's right about the relevance to mootness of a civil complaint's generic any-further-relief clause? If I were deciding the question on my own and writing on a clean slate, I would say the SCOTUS should rarely if ever dismiss a case as moot, because I generally dislike the application of strict rules of standing, ripeness, and mootness in the Supreme Court--which, as a practical matter, functions much like a European-style constitutional court and therefore ought, in my view, to suspend the fiction that it sits simply to resolve particular concrete cases and controversies. However, the Court isn't writing on a clean slate, and the majority appears to have applied the relevant mootness precedents more faithfully than Justice Alito's dissent.

Moreover, it is hard to take seriously the dissenters' solicitude for plaintiffs who include generic any-further-relief language in their complaints, given recent history, by which I mean the per curiam opinion that all of the NYS Rifle & Pistol dissenters joined in the Wisconsin election case just 3 weeks earlier. Thus, after reading the NYS Rifle & Pistol dissent, on Monday I tweeted: "Alito, Thomas & Gorsuch dissent from today's 2d Am mootness ruling because the complaint had 'any further relief' request but 3 weeks ago voted to kill WI voters for failure to ask specifically for relief from nonexistent law, despite same language in complaint. Seems backwards."

But wait. If Justices Alito, Thomas, and Gorsuch are hypocrites for thinking that a complaint's generic any-further-relief clause avoids mootness for gun rights plaintiffs but doesn't permit relief for voting-rights plaintiffs, does that imply that Justices Ginsburg, Breyer, Sotomayor, and Kagan--who voted with majority in NYS Rifle & Pistol but dissented in the Wisconsin election case--are also hypocrites? The answer is no, for three principal reasons.

Tuesday, April 28, 2020

No, Progressives Are Not Exploiting the Pandemic to Push Their Policy Agenda

by Neil H. Buchanan

Today's topic is political opportunism. Are politicians merely using the coronavirus pandemic to mount their hobbyhorses, no matter their relevance (or not) to the real problems we face?

In short, is everyone emulating the indicted-and-then-resigned Texas Republican Tom Delay, who infamously said in 2003: "Nothing is more important in the face of a war than cutting taxes"? -- a claim that would have been less laughable if: (a) cutting taxes were not Delay's top priority in the face of everything under the sun, and (b) we had not increased taxes to pay for winning two world wars.

OK, but all politicians are opportunists and hypocrites, right?  The editors of The Washington Post sure think so, as they preceded their (quite appropriate) excoriation of Republicans' recent actions by offering this: "Republicans in Congress have cautioned Democrats not to use emergency legislation intended to rescue the economy as a vehicle to achieve long-sought progressive goals. We think the warnings are, for the most part, fair."  Given that The Post is solidly on the record as opposing Democrats' long-sought progressive goals, that is not exactly the kind of self-restraint that the editors pretend it to be, but they clearly feel comfortable making us think that Democrats are on the prowl to misuse the crisis.

So is this another case of false equivalence?  Of course it is.  Even so, it is interesting to think through why progressives' policy goals became even more important during this unprecedented crisis.  Sometimes (but not always), the right policy is even more essential when conditions change.

Monday, April 27, 2020

Oyez Oyez: Supreme Umpires and the Roberts Court

By Eric Segall

“Judges are like umpires. Umpires don't make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”

These famous words, spoken by then judge John Roberts at his confirmation hearing to become a Supreme Court Justice, came to my mind this weekend as I was lamenting the absence of the siren song of Spring: “Play Ball!” Supreme Court watchers, like baseball fans, know that once temperatures rise, and the grey skies of winter fade, the action really begins. But alas not this year, and it is quite uncertain if or when baseball umpires will return. 

But no fear, the Supreme Umpires are hard at work (from their homes if not their marble palace), and with cases on abortion, guns, religion, and the separation of powers teed up (to mix metaphors), we can expect a lot of excitement between now and the end of the term. Ruminating about all of this made me reflect on how Chief Justice Roberts has done as an umpire who doesn’t “make the rules,” but only applies them in “a limited role.” So I thought a small representative retrospective was in order.

Friday, April 24, 2020

The Worst Invocation of "Future Generations" Yet Comes From (No Surprise) Mitch McConnell

by Neil H. Buchanan

As a Baby Boomer, I am one of the tens of millions of direct beneficiaries of our parents' and grandparents' herculean efforts to defeat Nazi Germany and the other Axis powers.  Never once have I thought to myself: "You know, that was too expensive; and I wish they hadn't done that by borrowing so much money."  Maybe I am not in the loop, but I have never heard anyone else even hint that fighting WWII was an unfair burden on the generations that followed.

And let us be clear: Fighting rather than surrendering was expensive.  Public debt as a percentage of GDP increased from about 40 percent before the war to more than 100 percent at the end.  In an economy with nominal GDP of about $230 billion immediately after the war, we had borrowed about $200 billion to win.  To be clear, our parents and grandparents also sacrificed enormously at the time, not just the hundreds of thousands of Americans who died (to say nothing of the tens of millions who died in other countries) but in the daily privations amid shortages and rationing.  But it is true that they did borrow far beyond what had been thought possible.

Again, however, I cannot imagine anyone saying that such borrowing was a bad idea.  More to the point, it would be absolutely insane to say that the debt was "unfairly piled on the backs of future generations" by irresponsible politicians.  Those politicians made the right call, and no one from the Baby Boomers onward should think for a moment that we were treated unfairly.

This is all true, moreover, even though there was a large amount of war profiteering going on everywhere during those years.  Yes, some scumbags actually did steal large amounts of money and should have been found out and forced to pay it back -- with penalties and interest (and jail time).  While the fighting was going on, we simply had to tolerate a certain amount of such theft; and afterward, it was only possible to bring justice to a small number of cases.

Today, in the midst of the biggest global crisis since WWII, we have conservative politicians and mindless journalists obsessing about recent increases in the public debt.  At least one, Senate Republican Majority Leader Mitch McConnell, has even defaulted to the "What about future generations?" trope.  This is both illogical and offensive.

Thursday, April 23, 2020

What's Jury Unanimity Got to do with it? Race, Aid to Religion, and Abortion in the Ramos Case

by Michael C. Dorf

As a formal matter, Monday's SCOTUS ruling in Ramos v. Louisiana decided one and only one legal question: whether Article III and the Sixth Amendment, as made applicable to the States via the Fourteenth Amendment, requires a unanimous jury in serious state felony cases? Although Louisiana no longer permits non-unanimous juries in such cases, Ramos and other cases like it arose before the state law changed. Oregon also permits conviction by an 11-1 or 10-2 jury vote. In Ramos the Court held non-unanimous verdicts in such cases unconstitutional, thus overruling the 1972 decision in Apodaca v. Oregon.

Interestingly, Ramos split the Court on non-ideological grounds. Justice Gorsuch wrote the lead opinion, which was joined in full by Justices Ginsburg and Breyer, and in most parts by Justices Sotomayor and Kavanaugh, each of whom also wrote a concurrence. Justice Thomas wrote a concurrence in the judgment only. And Justice Alito wrote a dissent that was joined in full by Chief Justice Roberts and nearly in full by Justice Kagan.

Non-ideological splits are not that unusual on the Supreme Court, including in criminal procedure cases, where some of the Republican appointees have a libertarian streak or vote for criminal defendants based on what they imagine to be originalist grounds. Nonetheless, the non-ideological breakdown in the case was remarkable because so much of what the Justices were arguing about seems ideologically laden. Although one needs a Supreme Court secret decoder ring to understand how and why, the disagreements appear to be about race, aid to religion, and abortion.

In my latest Verdict column, I discuss what I regard as the core substantive issue in Ramos: How much weight to give to the practical consideration that as a result of the Court's ruling, hundreds of prisoners in Louisiana and Oregon will likely be entitled to new trials? I explain how the Court's limits on non-retroactivity, ostensibly derived from the case-or-controversy requirement, led the three dissenters to vote to retain a rule they do not support. Here I want to discuss the other issues swirling around the various opinions in Ramos.

Wednesday, April 22, 2020

Wishful Thinking Masquerading as Serious Economic Warnings

by Neil H. Buchanan

If anyone had asked me earlier during this crisis, maybe a month ago, when I would predict that the mainstream press would begin to push anti-debt-and-deficit scare stories, my answer certainly would not have gone like this: "Never.  This changes everything, and my long-hoped-for world in which people finally understand that the fiscal scolds were wrong is the major silver lining to our current dark clouds."  Not a chance.

Even so, I also would not have said: "It'll start happening even before we've seriously begun borrowing and spending the money that we'll need."  Sadly, I need to remind myself never to underestimate just how hardwired austerity madness is in the minds of the mainstream press, and never to forget that those supposedly liberal journalists simply cannot pass up an opportunity to tell everyone how horrible federal borrowing is.

This would be crazy under any circumstances, but that it is already happening boggles the mind.  It shows, however, just how stubbornly the Very Serious People hold to their neoliberal views about deficits and debt, no matter how spectacularly wrong they have been, over and over again.  This impenetrable obtuseness is especially dangerous now.

Tuesday, April 21, 2020

Abortion, Judicial Review, and Playing a Terrible Hand

By Eric Segall

On Monday, I suggested that pro-choice progressives should root for Chief Justice Roberts to encourage (I don't think it would be hard) the other four conservatives on the Court to reverse Roe and Casey this term. Today, Mike responded thoughtfully with his reasons why he disagrees. Here is a reply to Mike's excellent post.

What's Wrong with Prof Segall's "Win by Losing" Approach to Abortion?

by Michael C. Dorf

Yesterday my friend and co-blogger Prof Eric Segall provocatively suggested that the Supreme Court ought to overrule Roe v. Wade and Planned Parenthood v. Casey in the pending Louisiana abortion case, June Medical Services LLC v. Russo. Prof Segall did not argue that those cases are wrongly decided. Rather, his core argument goes like this: the Supreme Court is very likely to overrule its abortion precedents in the next few years anyway; doing so before rather than after the 2020 presidential election will reduce the incentive of religious conservatives to vote for Donald Trump; and therefore an earlier overruling will not further endanger abortion rights but will have the added benefit of eliminating our execrable president.

I noted in a postscript to Prof Segall's post that I disagree with his analysis. Today I explain why.

Monday, April 20, 2020

The Pro-Choice, Progressive Argument for the Court Overturning Roe and Casey

By Eric Segall

The Chief Justice of the United States Supreme Court can quite possibly save our Union from the disaster of re-electing Donald Trump by voting to overrule the Court’s prior cases on abortion and return that controversial issue to the states and the voters. I say that as someone who is adamantly pro-choice and would support a constitutional amendment enshrining a woman’s right to choose or any legislation to that effect, local or national. But because the Court will someday soon return the issue of abortion to the states and the people anyway, Roberts could do the world a huge favor by taking that step now.

Thursday, April 16, 2020

Why Are Some Economists Being So Awful Right Now? Part 1

by Neil H. Buchanan

Economists are not epidemiologists, but some economists are acting as if they know more about epidemiology than epidemiologists do.  What explains this misplaced arrogance -- an arrogance with deadly consequences?

Too Few Ventilators, Too Many Cabbages: Just in Time Versus Just in Case Inventory--Pandemic Edition

by Michael C. Dorf

Thanks to shelter-in-place orders or their equivalent in most of the US, most hospitals now appear likely to avoid being catastrophically overwhelmed by a flood of patients in the way that it appeared they were about to be in New York City less than two weeks ago. That's the good news. The really bad news is that the success of these measures is being used perversely as an argument by Donald Trump and his followers as a reason to abandon them prematurely. 

But even if public health sanity prevails, there will be continued bad news. The floods of patients that did materialize and are likely to continue to materialize in places where the COVID-19 pandemic has yet to peak are severely straining hospital personnel and supplies. Every heartbreaking story of patients, doctors, nurses, and others falling sick and in some instances dying due to a lack of sufficient medical or protective equipment is a terrible tragedy. Worse, each such story appears to be an avoidable tragedy that, through bad planning, we failed to avoid.

How might some of these tragedies have been avoided? Part of the answer has to do with the difference between so-called "just in time" and "just in case" production and inventory systems.

Wednesday, April 15, 2020

Pandemic or No, SCOTUS Remains Camera-phobic

by Michael C. Dorf

On Monday, the Supreme Court announced that it would hear ten "oral arguments by telephone conference" during a one-week period in early May. The order further states that the Court will "provid[e] a live audio feed of these arguments to news media," which, in turn, will make them available to the public more or less in real time. Although the Court has previously released same-day audio recordings, real-time transmissions are new. Thus, with this announcement, the Supreme Court boldly adopts the equivalent of a revolutionary new technology of the 1890s: live radio. Who knows what will come next? When the public health emergency ends, will the justices ride about town in horseless carriages? Will their robes be cleaned by electric-powered washing machines? Will they drink hot beverages steeped from teabags? One can scarcely imagine the futuristic experiments these visionary jurists will conduct when they reconvene in their marble palace.

One technology the justices are unlikely to embrace is live or even recorded video. Why not? The short answer is camera-phobia.

Tuesday, April 14, 2020

Is Democracy More Important Than Life Itself?

by Neil H. Buchanan

A little more than a year ago, I published "Is the Rule of Law More Important Than Breathing?"  (We also republished it as a "Dorf on Law Classic" in December.)  In that column, I posed and considered an excruciatingly difficult conundrum: If we could solve only one big problem, would we spend the immediate future fighting climate change or saving constitutional democracy?

I conceded that this was possibly a false choice, because some win-win possibilities always present themselves, but it is always important to ask what one's priorities should be.  I surprised myself by concluding that, because the threat of climate change is pressing but not literally a matter of being able to continue breathing in the immediate moment, the threats that Donald Trump (as well as the political toxicities that led to Brexit and the emergence of Viktor Orban in Hungary and other dictators) present to the world should be our top concern.

We now terrifyingly find ourselves with a new contender for the primary concern facing the world.  The coronavirus pandemic has already killed over 120,000 people worldwide in only a few short months, with many more deaths already unavoidable.  Now that we are no longer looking at worst-case climate scenarios that give us little more than a decade to make large changes, with "breathing" being the literal issue in a very immediate sense, where does the rule of law enter into the calculus?

Monday, April 13, 2020

Is my Description of the SCOTUS Conservatives as "Rule Fetishists" and "Petty Sticklers" Unfair? Nope. Maybe it's too Generous.

by Michael C. Dorf

My new Verdict column strongly criticizes last week's Supreme Court decision in the Wisconsin primary case, Republican National Committee (RNC) v. Democratic National Committee (DNC). I give two answers to the question that titles the column, Why Did the U.S. Supreme Court Endanger the Lives of Wisconsin Voters? First, I say that "it would take a particularly na├»ve observer to deny that politics in the crass sense plays a substantial role." After all, five Republican-appointed justices sided with the RNC, while four Democratic-appointed justices sided with the DNC. But second, I acknowledge that "the Court’s breakdown . . . may also reflect a general difference in judicial philosophy." I go on to explain that the judicial philosophy that appeared to drive the conservative majority is one we see in other contexts as well, especially in habeas corpus cases: a fetishistic attachment to the strict application of rules or what I call "petty sticklerism."

Is that characterization of the Court's conservatives unfair? In this companion essay, I'll consider that possibility in light of the familiar debate over the proper roles of rules and standards in the law in general and in the work of courts. I'll conclude  the current SCOTUS conservatives are indeed rule fetishists and petty sticklers--or worse, that they are ideologically selective rule formalists and petty sticklers.

Saturday, April 11, 2020

A Day in the Life of a Pandemic: Law Prof Style

By Eric Segall

[Disclaimer: So far my family has not been hit with the Virus nor do my wife and I have jobs where we have been hurt economically. I don't mean to make light of all the catastrophe around us. This post in no way is intended to be insensitive to the desperate plight of others.]

Friday, April 10, 2020

Pandemic Productivity: Newton, Shakespeare, and the Rest of Us

by Michael C. Dorf

William Shakespeare grew up in a world frequently beset by pestilence and may well have written King Lear while quarantined due to the plague. A little over a half century later, Isaac Newton, then a student at Trinity College, Cambridge, was sent home to avoid the plague. He invented calculus and made substantial progress on the laws of motion.

It is easy to think of these giants of literature and science and feel shame--or, as humorously suggested by a recent New Yorker satire, to console oneself by remembering that Shakespeare and Newton could not distract themselves with Netflix. Yet the examples of Shakespeare and Newton raise real questions for those of us who live the life of the mind--albeit with nothing like the ability, power, or influence of such greats. How should the so-called thinking class be spending our time in quarantine?

Thursday, April 09, 2020

How Today's Short-Term Crisis Response Might Inadvertently Cause Us to Improve Social Security

by Neil H. Buchanan

As most people are aware, Congress managed to pass an economic disaster relief bill, the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which Donald Trump signed on March 27.  I supported that bill, even though it provides far too much opportunity for corruption.  Actually, it was perversely because of the inherent corruption in the bill that it could be passed, because without the opportunity for the already comfortable to wet their beaks, Republicans would not have allowed anything to move forward.

Barely two weeks later, we now know -- predictably but still unfortunately -- that the positive provisions in the CARES Act are being administered very badly (if at all).  Trump, meanwhile, has openly flouted the oversight provisions to guard against corruption that Democrats had managed to include in the bill.

Indeed, we already need another relief bill, especially for state governments, which the party that claims to believe in federalism and states' rights might not have been expected to resist.  Oh well.  What matters now is that states quickly be given an infusion of federal funds, to prevent cuts in Medicaid and other essential state programs.

Those are the headline issues.  There is, however, an issue that flew below the radar that could end up having a very big impact in a few years as the country recovers from this crisis.  That issue is retirement, because an obscure CARES Act provision allows people to empty their 401(k) accounts.  That will be bad, but there is an odd upside, which is that the now-all-but-inevitable depletion of retirement savings will increase pressure on a future Congress to strengthen Social Security.

Stick with me, please, as I walk through the logic that could end up doing what people like Senator Elizabeth Warren have not been able to do so far.

Wednesday, April 08, 2020

The Petty Prudery of the Vice Exceptions to CARES Act SBA Relief Loans

by Diane Klein

On Sunday, April 5, 2020, President Trump claimed that 28,000 loans had already been processed by the Small Business Administration on Friday, April 3, 2020. "It's worked out incredibly well," he lied.  I will leave to others with far more expertise than I have an evaluation of whether the "Paycheck Protection Program" and other components of the Coronavirus Aid, Relief and Economic Security (CARES) Act for small businesses are adequate, administrable, or likely to provide sufficient support to America's 30.2 million small businesses in time to save any significant number of them from going under.

But however well or poorly this phase of relief works out, we already know that hundreds of thousands, perhaps a million or more, Americans work for employers who are not eligible for any sort of relief: those employed in the "vice" businesses of sex, gambling, and cannabis.

Where Have You Gone Joe Biden? Our Nation Turns Its Lonely Eyes To You

by Michael C. Dorf

To preserve what's left of my sanity, I have been heeding the advice of mental health experts and trying to limit my consumption of news to reading the latest updates (mostly NY Times, WaPo, and the New Yorker) a couple of times per day. In normal times, I'm a bit of a news junkie, so this regimen has been difficult to follow, but there's no doubt that I read less and listen (via NPR) much less these days than in the time that I believe we will all eventually come to regard as "before." I occasionally watch NY Governor Andrew Cuomo and make it a point never to watch President Trump's daily COVID-19-related media shows.

Even so, I find myself flooded with coverage of Trump's boasts, misstatements, and head-spinning messaging changes. Meanwhile, following months of wall-to-wall presidential campaign coverage during the "before" time, I scarcely ever hear or see the words "Joe Biden"--not even yesterday, when one of the day's lead stories was how Republicans in the Wisconsin legislature, on the Wisconsin Supreme Court, and at the US Supreme Court thought it a fine idea to require citizens of the Badger state to risk their own and others' lives to vote during the pandemic.  I believe that Biden's low visibility is a potential problem for the presumptive Democratic nominee's prospects for the presidency. Here I'll take a stab at explaining the bind in which Biden finds himself and propose a course of action.

Tuesday, April 07, 2020

The Dangerous Dishonesty of the Both-Sides-Do-It Reflex

by Neil H. Buchanan

Despite everything that we have seen in the past generation, journalists and others (most especially trolls) continue to treat the statement of a fact- and logic-based conclusion as some kind of mortal sin.  A person who notes, for example, that the theory of evolution is not "merely a theory" will be denounced -- even by people who should know better -- as somehow taking sides rather than simply describing reality.

One of the more respectable of the never-say-anything-that-anyone-might-denounce-as-ideological crowd is the writer Jon Meacham, who is usually referred to as a "presidential biographer" for having written books about Thomas Jefferson, Andrew Jackson, and George H.W. Bush.  Based on his appearances on talk shows flogging his books and other projects, Meacham is a bit of a hagiographer (especially about Bush) and very much a happy-talk kind of guy, often crossing the line into smarminess.

The other day (April 3), as I spent time trying to find YouTube clips to fill the endless hours, I watched Meacham being interviewed on PBS's Amanpour & Company by Walter Isaacson.  (Video and full transcript here.)  Meacham did one very surprising thing -- announcing that he will vote for Joe Biden -- but then defaulted back to bothsidesism as if returning to the comfort of the womb.  Both aspects of that performance offer some larger lessons about our current dysfunction.

The GOP's Decade-Long Efforts to Kill Voting Rights

By Eric Segall

There is going to be an election in Wisconsin today despite the fact that millions of people likely won't go to the polls because of the reasonable concern that doing so might get them exposed to the potentially deadly Covid-19 virus. The Democratic Governor of the state wanted to postpone the election but he was overturned by the GOP-controlled legislature. Making matters worse, late yesterday the United States Supreme Court made absentee voting in Wisconsin much harder in an opinion, wait for it, joined by five Republicans with four Democrats dissenting. Essentially this Wisconsin debacle is the logical result of a decade-long national strategy by the Republican Party to stop as many people as possible from voting, especially if they happen to be people of color.

Monday, April 06, 2020

"Logarithmic" Is Dr. Birx's Safe Word

by Jamie Hamilton

During the White House COVID-19 press conferences, the word "logarithmic" has been coming up a lot lately.  The way Dr. Debra Birx and President Trump talk past each other around this word is very revealing about what's going on right now in the U.S.

Forced Closing of Houses of Worship During the Corona Virus: Both Legal and Right

By Sanford V. Levinson & Eric Segall  (cross-posted @ Expert Forum of the American Constitution Society)

The spread of the Corona virus, a world-wide emergency, “presents itself,” as doctors might say, in particular national forms. Countries differ in cultures, so that Sweden apparently is taking a significantly different approach from its Scandinavian partners Norway and Denmark. But, of course, they also differ with regard to formal constitutional structures or arguably protected constitutional rights. At the present times, most, though not all, Americans are  quarantined—one might even use the word “detained”--in their homes, permitted to leave only for the most important reasons such as to buy food and medicine or to provide essential services. As of last Thursday, just under three-hundred million people in 41 states, the District of Columbia, and Puerto Rico have been urged by their governments to remain inside, and if they go outside for exercise, to keep their distance from one another.  Note, though, the unique importance of American federalism, inasmuch as the governors of nine states apparently think it continues to be party time and refuse to mandate compulsory lockdowns.  
But consider the states that have in fact vigorously acted.  Of those 41 states, 12 have made full or partial exemptions for religious services or houses of worship. We believe, however, that exempting churches, synagogues, and mosques from the generally applicable quarantine laws is a terrible mistake, a misreading of the Constitution as well as awful public policy.

Friday, April 03, 2020

Pandemic Politics, Equal Protection, and Equal State Sovereignty

by Michael C. Dorf

Earlier this week the Washington Post reported that the Trump administration appears to be favoring Republican-led states--especially Florida, which is critical to Trump's re-election strategy--over Democratic-led ones in the distribution of desperately needed respirators, personal protective equipment, and other medical supplies, rather than distributing in accordance with population or need. The report is not definitive, as the administration has not officially announced criteria for distribution. Moreover, although Florida trails New York in total cases, its large retiree population makes its need critical, so it is possible to imagine a fair rationing scheme that allocated at least some extra supplies to Florida (or some other states). And with some federal stockpiles nearly depleted anyway, it might not make much difference.

All that said, however, the story, if true, is extremely disturbing. Although I don't see a successful case going to court, the putative policy nonetheless raises three sorts of constitutional issues, involving: free speech; equal protection; and the much-maligned principle of "equal sovereignty of the states." In a December 2017 Verdict column, I considered more or less the same objections to the elimination of deductibility of state and local taxes (SALT), which overwhelmingly burdened blue states. Although the stakes now are higher, the core issue is more or less the same. In the 2017 column, I pretty much assumed that it would be unconstitutional for the federal government to disadvantage a state as punishment for its politics, arguing that the real sticking point would be proving intent. I continue to think that proof would be difficult, but in today's column I also want to question my underlying assumption that there would be a constitutional violation even if political intent were clearly proven. I'll consider each of the potential claims in turn.

Thursday, April 02, 2020

What if Trump Had Flipped the Script?

by Neil H. Buchanan

On March 18, Republican anti-Trump activist George Conway wrote: "There Is No New Trump."  Here is the first paragraph:
"If you think you’ve been hearing a different President Trump this week — more accepting of the reality of the coronavirus pandemic — don’t be fooled. The new Trump is the same as the old Trump. He can’t help it. He’s incapable of taking responsibility for his role in this crisis — and thus incapable of leading us out of it."
Much of what we have seen in the past three-plus years has a "Groundhog Day" feel about it, which makes it not actually surprising that we need to be reminded of Conway's warning barely two weeks later.  Still, gullible media types quickly took to praising Trump's latest attempt this week to sound serious, commenting on how different he sounded and suggesting that there is indeed now a new Trump.

Meanwhile, Trump's Republican enablers are already falsely claiming that the impeachment trial (and thus the Democrats) are at fault, so claims to seriousness in Trump World are pretty hard to take ... er ... seriously.

Moreover, the new faux-serious Trump is still trying to downplay the situation.  True, he now is talking about a possible U.S. death toll of at least 100,000 people, but even when he spoke at a press conference about the range of that forecast -- 100,000 to 240,000 -- he rounded down the upper end to 200,000.  Forty thousand extra dead Americans?  Rounding error.

Here, I want to discuss two genuinely serious questions.  First, why is Trump even now downplaying the seriousness of the situation, simply from a strategic, political point of view?  And much more interestingly, what if Trump had actually jumped ahead of this crisis from the very beginning?  Would he have gotten any credit if he -- for the first time -- had done the most responsible and self-sacrificing things possible?

Wednesday, April 01, 2020

In a Pandemic, as Always, Federalism is a Double-Edged Sword

by Michael C. Dorf

Note to Readers:  I am aware that today is April 1. In past years, I have written April Fool's posts on this date. I realize that many people want--indeed, desperately need--a humorous distraction, and I don't begrudge them that. I just don't have it in me right now to provide one. In the event that the crisis has largely passed in a year, I'll do my best to provide an especially funny piece then. For now, here's a serious column on federalism.
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My most recent Verdict column, which was published on Monday, discusses last week's Supreme Court ruling in Allen v. Cooper. In an opinion by Justice Kagan, the Court held unconstitutional a federal statute that abrogates state sovereign immunity against private lawsuits seeking compensation for copyright infringement. The case applies prior precedent--especially Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, which held the same thing with respect to patent infringement.

But Florida Prepaid and the Court's state sovereign immunity jurisprudence more broadly are a mess.  I conclude the column by characterizing the doctrine this way: It "rests on a highly dubious construction of the constitutional text, serves a largely symbolic interest in the 'dignity' of the states, and includes an extremely complex and mutually contradictory set of rules, exceptions, and exceptions to the exceptions."

In the column I suggest that, given liberals' prior disdain for the entire state sovereign immunity project, the best way to understand their decision to adhere to the precedents is a kind of tactical bargain: Perhaps Justice Kagan accepts this conservative line of cases in the hope that CJ Roberts will reciprocate in abortion cases and other areas where the existing precedents are more liberal. Here I want to pivot back to the role of federalism--judicial and otherwise--in the pandemic response. I'll identify ways in which it is helpful and ways in which it is harmful. I'll conclude with some thoughts about whether we can say anything general about the virtues and vices of federalism.