Congress took the first steps— which would launch a tradition—of distinguishing financial regulators from diplomatic and military officers. The latter mainly helped the President carry out his own constitutional duties in foreign relations and war. The former chiefly carried out statutory duties, fulfilling functions Congress had assigned to their offices. In addressing the new Nation’s finances, Congress had begun to use its powers under the Necessary and Proper Clause to design effective administrative institutions. And that included taking steps to insulate certain officers from political influence.
Tuesday, June 30, 2020
SCOTUS Erred In Seila Law But Congress Should Require A Heightened Self-Dealing Risk Before Creating Independent Agencies
Monday, June 29, 2020
Friday, June 26, 2020
Last Wednesday I had the great privilege of recording my first Supreme Myths Podcast/Video with Yale Law Professor Jack Balkin. Also last week, Professor Charles Barzun completed a three-part series on Balkinization on living constitutionalism and originalism. Both Balkin and Barzun share some common views about constitutional interpretation, judicial review, and the relationship between originalism and living constitutionalism that I will address in this post.
Thursday, June 25, 2020
Justice Alito's Opinion in Dep't of Homeland Security v. Thuraissigiam Reveals Why "Custody" in the Narrow Sense Should Not Be a Requirement for Habeas
Every month, week, and day of the Trump Administration has been shocking and disorienting. It has become a cliche to say that "this is a new low" and that maybe there is no bottom at all. Even in that context, I believe that June 2020 is one of the most consequential months in American history, for better and for worse -- but mostly for better.
My new two-part series of columns on Verdict reflects upon the better-and-worse aspect of this month. Part 1 was published yesterday: "Trump’s Upcoming Refusal to Leave Office: The Good News." Part 2 landed on the virtual newsstands today: "Trump’s Upcoming Refusal to Leave Office: The Very Bad News." Even though I note that the bad news is "very bad" but leave the good news unmodified, this has still been a good month overall, because until now there was almost no good news at all. Relatively speaking, things are a lot better.
The reason that I am suddenly less pessimistic -- and in less guarded moments actually somewhat optimistic -- is that there has been a sudden willingness on the part of the political and media classes to stop minimizing Donald Trump's danger to the republic and the rule of law. Even though Trump has been appropriately criticized and reviled throughout his presidency, people still acted as if the foundations of the country, including fair elections and the presumption that a losing incumbent would leave office peacefully, were not under sustained assault.
That has now changed. And even though it is frightening to look at the world clearly, at least people are now looking and increasingly being willing to admit what they are seeing.
What is frightening? Almost everything. Here, I discuss one of the most extreme dangers facing the country, which is the possibility that Trump will use military and paramilitary violence to stay in office. Yes, people are finally conceding that this is worth worrying about. Finally.
Wednesday, June 24, 2020
I served on the law faculty of The George Washington University from 2007-19, and although I am delighted to have moved to my current position at the University of Florida Levin College of Law, my years at GW continue to exert some emotional pull. I was thus delighted to see that 80 percent of my former colleagues signed a letter condemning GW Law alumnus William Barr for having "undermined the rule of law." GW Law alum Kellyanne Conway is also a walking, talking repudiation of what law schools attempt to teach.
More than 20 percent of the GW law faculty is, based on my years of observation, unlikely to be big fans of the Democratic Party, which means that some of those who signed the letter were doing something that did not line up with their political priors. I hasten to add that those signers who happen to be Democrats are hardly to be disregarded merely because they have other reasons to be repulsed by Donald Trump and to oppose Republican policies. No matter what else one thinks about any related matters, Trump's existential threats to the rule of law should be strongly condemned by everyone. Bravo, GW!
And this raises a broader issue, one that I have attacked from various angles over the past few years: Why do we continually see people acting as if supporting or not supporting Trump is a standard-issue political calculation? Sure, they might say, there are some things about Trump that I dislike, but there are no perfect candidates. I'm still deciding whether Hillary Clinton (in 2016) or Candidate's-name-here (in this year's primaries) or Joe Biden (now) has done what I require to earn my vote.
Enough! I will use John Bolton's interview from last night's episode of "The Late Show with Stephen Colbert" to analyze the utter insanity of those who coyly claim that there is some principled basis on which they might not support Biden later this year.
Tuesday, June 23, 2020
Monday, June 22, 2020
Friday, June 19, 2020
Along with the lovely derisive terms that right-wingers hurl at their opponents -- snowflakes and libtards being only the tip of that iceberg -- is the idea that non-conservatives are merely pretending to be morally superior to conservatives. A relatively recent snide term along these lines is "virtue signaling," by which aggrieved conservatives say that other people are not truly committed to the ideals that they tout but are merely gaining social status by showing other liberals how upright they are.
The problem is that so-called virtue signaling is rampant on the right, making them rank hypocrites. It is worth taking a moment to see how this works, because it is a technique of distraction that non-conservatives have failed to confront with any effectiveness.
Thursday, June 18, 2020
It is a testament to the depth of the wounds of systemic racism in America that the protests sparked by the police murder of George Floyd have continued with such intensity for so long. Especially during a public health disaster, it takes a lot to get people to sustain this kind of action and passion. But with literally centuries of injustice unaddressed, it apparently took that final spark to start a conflagration.
That is both tragic and hopeful. The centuries of tragedy, of murder upon murder upon oppression upon oppression, are shameful to contemplate, especially because so many people knew about it but could not get everyone else to focus on such chronic injustice. The hope now is that this is, at long last, the moment when things start to change in fundamental ways.
In a column last week, I argued that this change should involve "leveling up," meaning that giving people equal protection means moving currently disadvantaged people up to the best levels of treatment that society already offers its most fortunate citizens. We could level down by creating a terroristic police state that trains its guns and violence against everyone regardless of race or class, but although that would be equal treatment, it would not be justice.
Here, I want to continue my discussion of what it means already to be at the top level of social status in the sense of how the system treats people. That is, if we succeed in leveling up, what will the currently disadvantaged people be able to enjoy?
As it turns out, however, even that would not be enough -- as important and essential as it is. Even the people like me at the top level know that random police violence could possibly be visited upon us under certain circumstances. After, or while, we level up, we need to raise the bar and change the way the law enforcement system treats everyone. What would that look like?
Wednesday, June 17, 2020
The last few weeks have placed a spotlight on American racism in a way that holds some promise for real reforms and movement towards greater equality among and between whites and people of color. But true progress will never be made unless Americans fully accept that institutional racism is not some distant memory or remnant of a bygone era but is still very much with us today. We are a still a racist country, full stop. We must own our past and our present in order to move towards a less racist future.
The United States of America was built in large part on the foundation of institutional racism. Our Constitution continued the practice of slavery for three quarters of a century after ratification. It took a civil war to formally end our original sin of white people treating black people as their personal property.
From the mid-19th century to approximately 1964, much of our country engaged in racial apartheid, providing people of color grossly unequal access to government facilities such as public schools, hospitals, and parks, and allowing private businesses such as hotels, restaurants, and theaters to exclude people based on the color of their skin. When I was six years old, a hotel located two blocks from my current law school went all the way to the Supreme Court of the United States to argue that it had the right to exclude black guests.
Tuesday, June 16, 2020
Does Justice Gorsuch's Magnificent Opinion in the Title VII Sexual Orientation and Gender Identity Cases Redeem Textualism?
Monday, June 15, 2020
Friday, June 12, 2020
What is Constitutional Theory About and For? (My Contribution to a Conference on the Unraveling New Deal Settlement)
Thursday, June 11, 2020
Given that the coronavirus pandemic has in no way ended -- indeed, cases are rising in many U.S. states, even during the time when they should be falling -- some people are understandably worried that the ongoing mass protests against racist police violence have possibly contributed to the spread of the virus. I have the advantage of being able to cross the street when the rare pedestrian comes into view during my sanity-preserving walks, but I still want to return to something like normal. I am concerned any time I see lack of social distancing.
That does not, however, in any way mean that protests against public health measures by right-wing groups carrying assault weapons are the same as protests by millions of citizens calling for racial justice. Yet that equivalence is now being promoted by conservatives as an indirect way of criticizing progressive protesters. When I first saw a column making this slippery argument a few days ago in The Washington Post by op-ed columnist Megan McArdle, I was annoyed but not surprised, considering the source.
McArdle's business model amounts to trivializing important issues, so it was hardly a shock to see her claiming that "I’m quite positive that courts won’t let governments distinguish between assembling to protest police brutality and assembling to protest public health policy. One can, of course, argue that there’s a moral difference. But moral distinctions have no force outside the community that makes them" (emphasis in original).
If one thinks about it, this is actually a pretty clever move. One need not say anything about the content of the protests, meaning that a conservative does not have to defend systemic racism. Instead, she merely says that different people have different priorities, and because moral differences are a matter of mere opinion, it is bad bad bad to try to suggest that one kind of protest is more defensible than another.
This is nonsense, but unlike McArdle's usual work, this one actually requires a bit of unpacking. Again, however, I would not have thought it worth the time to do so until yesterday, when Post columnist Max Boot echoed the false equivalence even more bluntly. This is now worth thinking about.
Wednesday, June 10, 2020
The Umpire-in-Chief and the Religion Clauses: Will he Make the Right Call in Espinoza v. Montana Dep't of Revenue
From 1988-1991, while at the Department of Justice, I litigated on behalf of the United States Department of Education a church/state case in San Francisco in which a public interest group challenged federal aid to private religious schools. I worked closely with experienced lawyers representing the United States Catholic Conference and the Archdiocese of San Francisco. Their position, and ours, was that the federal program was constitutional under relevant Court cases involving what the government could and could not provide to parochial schools. No one, and I mean no one, thought for one second that, by giving aid to not-for-profit private secular schools, the federal government would be constitutionally obligated under the free exercise clause to provide the same aid to religious schools. Quite simply, no one thought that.
Sometime in the next month, the Court is going to decide Espinoza v. Montana Dep't of Revenue. This case should be a one-day blip with no lasting significance, but it could end up invalidating the laws of 38 states and the local education financing schemes of almost 20 states. That result would be a disaster for federalism, education, the separation of church and state, and the country.
Tuesday, June 09, 2020
It is difficult even to begin writing columns these days, because there is so much going wrong in the world. When the issue of systemic racism came to dominate our lives, however, it became even more of a challenge to try to engage in a helpful way. As a white Anglo-Saxon protestant man with a titled academic position, I have to ask myself what this aging liberal can say that does not run the danger of being presumptuous or possibly tone-deaf.
It then occurred to me that I can come at this by acknowledging my privilege. I am committed to engaging with others and to trying to understand and help (if I can) those who have reason to fear the police, but maybe it is also useful at least to try to describe what it is like not to fear the police.
That is, I can attempt to explain how the privileges of race, class, and gender play out in ways that are often all too easy to take for granted. Stopping to think about what I have almost never had to think about is enlightening, not only in terms of my own self-awareness but as a means of asking what a much better world would look like.
The short version is simple: Privilege is great. I am fortunate. Everyone should be able to enjoy the same privilege and take it for granted. Is that possible?
Monday, June 08, 2020
If you are a principled conservative who opposed Trump's candidacy for any of the many excellent reasons there were to oppose it, PLEASE consider seeking and accepting a job in the Trump administration. We have a unitary executive in principle, but in practice it takes a great many people to run the government. If principled conservatives decline to serve in a Trump administration, it will be filled with servile hacks. Working in the government, you can better advance the rule of law and other values you hold dear than by standing outside and criticizing. In any event, we liberals will be doing plenty of that.
Friday, June 05, 2020
Will Donald Trump ever leave office, either because he loses this Fall or because his second term ends in January 2025 (and the Constitution has not been amended in the meantime to allow a third term)? I am among those who have been frantically warning that the answer is no, that Trump will simply refuse to leave office.
My most recent Verdict column explains that there might be nothing that we can do about this. Wednesday's parade of silence from Republican U.S. Senators, who were asked about Trump's order for security forces to violently push peaceful protesters out of Trump's path to a photo op, certainly supports my assertion on Verdict that these senators would piously refuse even to entertain questions about a Trump coup in advance. "I will not dignify such an outrageous question with an answer!"
The two plausible non-outrageous and non-dangerous scenarios in which Trump stays in office next year are: (1) Trump is declared the winner of the election, and Democrats decide not to force any possible claims of voter suppression or election fraud; (2) Trump is declared the winner and the Democrats aggressively challenge that declaration, but they lose in the courts and then accept that result.
If Trump is declared the loser of the election, or if the courts rule that he should have been declared the loser, then my prediction that Trump will refuse to leave and that Republicans will abet him would be wrong under two further scenarios: (1) Trump tries to stay in office, but Republicans -- finally facing a non-hypothetical constitutional crisis -- stop him; or (2) Trump decides not to try to stay in office, choosing to forgo false claims of voter fraud and all that, instead quietly packing up and going to Mar-a-Lago.
Clearly, I think that that last possibility is now hilariously, horrifyingly impossible to imagine. Republicans finally stopping him also has become impossible to imagine. The only way that we will not have a crisis later this year, then, is if Trump wins and Democrats give up; and even then, we would merely be back here four years from now, wondering if the 78-year-old Trump will leave office (assuming that there is anything at all left of the rule of law by then).
But wait, maybe I am wrong! A reader pointed me to a very recent Slate column, "Trump Can’t Just Refuse to Leave Office: We have a lot of things to worry about in the next eight months. This isn’t one of them," by someone named Fred Kaplan. That sounds wonderful. Maybe there is something that I have not thought of before now, and if Kaplan has some great insights, I am all ears.
As I will explain below, however, the case that Kaplan makes does nothing to allay any reasonable fears. His claims are slightly better than other don't-worry-be-happy arguments, but he simply does not prove that Trump and the Republicans would be unable to keep him in office.
Thursday, June 04, 2020
Are Churches Like Restaurants? Like Political Rallies? If So, Why Isn't Peyote Like Wine?: The Comparator Problem In Religious Discrimination Cases
Wednesday, June 03, 2020
This is horrifying. Last week on Dorf on Law, we took a partial break from the news cycle by devoting three of our five columns to an academic discussion about an issue that we care about greatly, but such luxuries are for the time being denied to us, because the man who has claimed over and over again to be "the most militaristic person there is" now has actually threatened to turn American cities into battle zones and has had troops fire tear gas, flash grenades, and rubber bullets at peaceful protesters.
It is amazing, in fact, that I did not know about Trump's "most militaristic" claims until I watched Seth Meyers's segment last night (from the 7:59 mark through 8:26 of the video, showing six times when Trump so labeled himself); but it makes sense not only that Trump would say such an idiotic thing but that we never even noticed, given how many other things he has said that are equally deranged.
That Trump (or maybe it was Bill Barr) ordered this police-on-public violence to clear the way for a weird walkabout to a church makes it that much creepier, but the point is that Trump has noticed that "the protests" have not all been peaceful, so it is now apparently acceptable to treat all protesters as thugs and criminals, even when the actual protesters are not being thuggish or committing crimes.
In situations like this, conspiracy theories inevitably run rampant, and there are all kinds of theories about who is instigating the violence. But some theories are better than others, and especially when there is a president who thrives on chaos, one can expect those who support him to seize opportunities to give him excuses to overreact. How does this work?
Tuesday, June 02, 2020
Dear Cornell Law School community,
Cornell Law School’s Black Law Students Association (BLSA) stands with the families of George Floyd, Breonna Taylor, Tony McDade, and Ahmaud Arbery. We give honor to their memories and to the memories of countless others who have been unjustly taken from this world, whether we know their names or not. We extend our heartfelt condolences to their loved ones and acknowledge that the people they have lost are more than a hashtag.
Black people are in a unique position today, facing both the brunt of the COVID-19 pandemic and the unrelenting violence against our brothers and sisters all across the country. In the last month, we have seen videos of Ahmaud Arbery’s and George Floyd’s murders. We have seen reports of Breonna Taylor’s and Tony McDade’s murders. This trauma is incessant in the age of social media and more than any community should have to bear.
While we continue to grieve Mr. Floyd and others, we are reminded that murders like his are the result of centuries of injustice and oppression – of this country’s refusal to address and change its longstanding practice of anti-Blackness. More often than not, senseless killings by police result only in superficial reprimand that falls short of addressing the underlying problems that support a racist system. To be sure, true justice does not stop at an arrest – true justice requires that we reexamine the structural inequities that continuously exclude and actively oppress Black and brown people.
Many of us applied to law school hoping to make a difference, to be an ally. As lawyers in the majority, many of you will have access to spaces and tables that your Black counterparts will not. When the time comes, it will be important for you to remember this moment – remember your responsibility as movers and shakers in our justice system. Remember that your Black friends will continue to mourn long after this country has forgotten why we were protesting to begin with. We bear the burden of constantly burying our brothers and sisters and ask that you stand next to us as we endeavor to dismantle the system of oppression.
Do not be complicit in the deaths of Black people. Have those tough conversations with your family, friends, co-workers, and fellow students. Do not shy away from the fact that both police officers and civilians are continuously allowed to use lethal force and violence against Black people. To remain silent – to remain neutral – is to side with our oppressors. Your silence is violence. Publicly demand equality, justice, and safety for us.
For Four SCOTUS Conservatives, Insufficient Discrimination In Favor Of Religion Is Discrimination Against Religion
Monday, June 01, 2020
Forty-three years ago I was walking around Cambridge University on a breezy summer day. My buddy and I were working in a mail room in Brighton between freshman and sophomore years of college and decided to hitchhike, yes hitchhike, to Cambridge for an annual music festival. The groups were mostly British except for the headliner, a new American folk/pop star named Don McLean.
As we strolled around the campus, we came upon a student dormitory that was built in the 13th century. I don't remember the date with 100% certainty but I think it was 1268. Bill and I looked at each other. We were shocked and amused by this. Students were learning and teachers were teaching on this spot more than 500 years before the United States of America was born. Five-hundred years. In 1977, our own country was just a tad over 200 years old, and England had been around much more than twice as long as that.
Skip ahead to last Friday. I was taking my morning walk and listening, as I always do, to the Dan Le Batard show on ESPN. For those who don't know, this radio show is part sports, part sports satire, and part social commentary, with its serious moments. On this day, Dan Le Batard began his show as follows: "A CNN was reporter was arrested at what is feeling less and less like America. Boy I miss my country." I think many people, definitely myself included, feel this way too, but what exactly does it mean?