The Pandemic versus the Shiny Distraction of Trump’s Taxes

by Neil H. Buchanan

 

Every day that the news is not focused on the Covid-19 pandemic is a good day for Donald Trump.

 

Earlier this year, I wrote two columns on Dorf on Law (here and here) in which I argued that the Supreme Court's decisions in what had become known as the "Trump tax cases" were surprisingly but profoundly unimportant.  I conceded that the Court had done something good by not doing something terrible, which in this instance would have involved endorsing Trump's insane "absolute immunity" theory.  Otherwise, however, the cases were in fact not particularly important politically or practically.

Every day that the news is not focused on the Covid-19 pandemic is a good day for Donald Trump.

 

In those columns, I argued that "Democrats might even be better off in a world in which Trump insists on acting like he has a lot of bad things to hide than in one where we get to see what he is hiding (even if it is truly bad)."  Well, courtesy of some truly great journalism by reporters at The New York Times, we now have a rather clear idea of how truly bad things are, and why Trump was hiding all of it.

Every day that the news is not focused on the Covid-19 pandemic is a good day for Donald Trump.

 

Given that I am a professor of tax law, and given how often I have opined that knowing the details of Trump's taxes is unlikely to be enlightening or helpful to those who oppose him, I am not surprised that people have contacted me to ask if I am planning to write about The Times's bombshell.  What are my key reactions to all of this?

Are Trump's Justices Tainted?

by Michael C. Dorf

I am not a political strategist, but if I were, I would advise Senate Democrats not to engage at all with the merits of Judge Amy Coney Barrett as a Supreme Court nominee. Do not question her about her judicial philosophy, do not parse her record as a judge and a scholar for indications of how she would decide cases on the Supreme Court, and by all means do not ask what she believes the role of precedent in constitutional cases should be. Such inquiries have become futile in the best of circumstances, and we are currently in the worst of circumstances. Posing questions to Judge Barrett as though she were just another nominee risks normalizing her nomination.

There are also reasons to think that Judge Barrett will come across on tv as much less scary to civil rights, civil liberties, and effective government than her record indicates she will be as a Justice. She's smart, highly personable, and by all appearances has led a very admirable private life. Democrats who engage with her on the merits are unlikely to "win" their exchanges.

To be sure, I see no evidence in Judge Barrett's writings as a law professor or judge that she is the once-in-a-generation genius that Harvard Law Professor Noah Feldman thinks her to be based on their friendship when they were both in their twenties. Feldman's colleague Professor Mark Tushnet comes much closer to the mark when he implies that Barrett is "perfectly competent" and "has done some interesting scholarly work." But Professor Tushnet adds that this conclusion is hardly disparaging, which is true. If the question is professional qualifications, Judge Barrett clearly has the requisite ones. Academics like Professor Feldman who are, in Professor Tushnet's tough but fair assessment, "sucking up to power," deserve to be pilloried for their hyperbolic sycophancy, but no one should mistake the argument against Feldman for an effective strategy for combating Judge Barrett's confirmation.

Instead, Democratic Senators should simply follow the precedent set by Senate Republicans with respect to Judge Merrick Garland and ignore Judge Barrett. Ignoring Judge Barrett would not mean ignoring the nomination. Democratic Senators could use their allotted questioning time to give speeches denouncing their Republican colleagues for their hypocrisy. Doing so would be more than justified, as Justice Ginsburg's death occurred much closer to the 2020 Presidential election than Justice Scalia's occurred relative to the 2016 election--and the transparently post hoc rationalizations offered by Republican Senators trying to reconcile their current stance with the position they took in 2016 are laughably bad.

Even so, Democratic Senators should direct their complaints at Republican Senators and Trump, not at Judge Barrett. In the past few days, I have seen a suggestion on Twitter that an interview that then-Professor Barrett gave in 2016 shows her endorsing the view that Senator McConnell then took that the Senate oughn't confirm a Justice in an election year--but having watched the full interview, I must say that's not an accurate characterization. Most of the interview is about Justice Scalia. When asked about the don't-confirm-in-an-election-year view, Barrett gives an answer that is essentially descriptive and denies that there's any "rule." In ignoring Judge Barrett and going after President Trump and their Republican colleagues for hypocrisy, Democrats can make clear that they have nothing personal against Judge Barrett.

The Winner-Take-All Problem with the Supreme Court Appointments Process

By Daniel Epps

Just like everyone else interested in constitutional law (and just like many other people in America, too) I've been thinking a lot about the Supreme Court in the wake of Justice Ginsburg's death. In particular, I've been continuing to reflect on what's wrong with our current system that has led us to this crisis. I discuss some of the system's defects in this Politico interview last week.  

In the interview, I talk about two failings with our system that should be pretty well understood by readers of this blog. First, there's the democracy deficit with our electoral system, in which the Senate and the Electoral College mean that the key decisionmakers may not represent the will of the majority of American citizens. Second, life tenure means that vacancies occur at unpredictable times, meaning that some Presidents get more opportunities to appoint Justices than others. These two problems interact with each other, making the problems worse. President Trump, who lost the popular vote and (so far) has only been elected President for one term, will get to appoint three Justices; Barack Obama, who won the popular vote twice only got to appoint two Justices. 

On reflection, though, I think there's another problematic feature of our structure that makes these first two problems much more salient: that's the winner-take-all nature of (1) our political process and (2) our judicial processes. 

State Legislatures Cannot Act Alone In Assigning Electors

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

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

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

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

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

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

 By Eric Segall

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

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

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

by Neil H. Buchanan

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

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

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

 by Michael C. Dorf

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

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

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

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

by Neil H. Buchanan 

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

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

And all of those things, none of which meaningfully changed the polls or support among Republicans who slavishly back Trump, hit us before Justice Ruth Bader Ginsburg's death saddened us beyond measure -- only to be quickly followed by a Republican power play of jaw-dropping proportions.  Oh, and also a gratuitous insult from Trump, who called RBG's granddaughter a liar.

 

Although Bill Barr's latest trolling of America is no longer the greatest outrage to which one might respond, I want to use this space today to return to a discussion of what he had said last week about stay-at-home orders: "Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history."  Barr's casual distortion of our history calls for additional condemnation, because he truly does not understand what freedom is.

Confronting Originalism: Truths and Myths

 By Eric Segall

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

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

RBG From the Point of View of the Universe

 by Michael C. Dorf

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

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

----

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

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

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

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

 by Michael C. Dorf

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

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

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

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

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

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

by Neil H. Buchanan

The big story from the recent appearance by Donald Trump's personal attorney William Barr at a religious college in Michigan is that Barr supposedly likened this year's COVID-related shutdowns to slavery.  The Washington Post, for example, ran a news article under these words: "Barr under fire over comparison of virus lock-in to slavery."

 

I have absolutely no reason to bend over backward to give Barr the benefit of any doubt, but that is not what he said.  What Barr said was outrageous in other ways, as I will discuss, but what he actually said was this (per CNN): "'You know, putting a national lockdown, stay at home orders, is like house arrest. Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history,' Barr said as a round of applause came from the crowd."

 

Again, there is a lot going on there, but Barr was careful specifically to say that slavery was categorically different from what he was complaining about.  I am not saying that this makes Barr a good guy, of course, because it merely means that he is savvy enough to think in advance about how to give himself plausible deniability.  Sure, calling slavery "a different kind of restraint" is like saying that death is a "different kind of physical malady" from psoriasis, but he did at least say that there is an apples-to-oranges difference.  Still, he all but invited the outrage, and he deserves the thrashing that he is receiving; but he did not "compare" or "liken" them, for what little that is worth.

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

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

 by Michael C. Dorf

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

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

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

by Neil H. Buchanan

 

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

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

Bill Barr, Trump's personal attorney (and nominally the Attorney General), is especially practiced at this strategy of engaging in radical action while attacking his opponents for their supposed radicalism. In a speech last Fall, Barr reportedly "warned that Catholicism and other mainstream religions were the target of 'organized destruction' by 'secularists and their allies among progressives who have marshalled all the force of mass communications, popular culture, the entertainment industry and academia.'"

 

It is all culture war, all the time -- just as Republicans have long claimed that calls for income redistribution are "class warfare," which Warren Buffett rightly dismissed with this great line: "There’s class warfare, all right, but it’s my class, the rich class, that’s making war, and we’re winning."  Pickpockets screaming about being robbed have more credibility.

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

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

 by Michael C. Dorf

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

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

---------

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

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

by Neil H. Buchanan

 

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

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

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

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

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

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

 

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

 By Eric Segall

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

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

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

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

 by Michael C. Dorf

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

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

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

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

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

Political Vendettas versus Progressive Policy

by Neil H. Buchanan

 

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

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

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

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

 

Peak Presidential Vaporware

 by Michael C. Dorf

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

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

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

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

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

Prophylactic Laws

 by Michael C. Dorf

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

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

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

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

How Will Substantive Policies Change If Trump Stays in Office?

by Neil H. Buchanan

 

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

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

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

One bit of very good news is that the discussion of a Trump coup has at last moved from the pages of Dorf on Law and Verdict to all of the centers of political discussion in the various political media.  Even better, Democrats are starting to take this very seriously, with first-term congresspeople Elissa Slotkin and Mikie Sherrill directly asking the chair of the Joint Chiefs of Staff as well as the Secretary of Defense for assurances that the military will not be used during or after the election to keep Trump in office.  What was once unthinkable is now under discussion, which is sad but necessary.

 

With that discussion now having gone terrifyingly mainstream, then, I have little more to add and can move on to a different set of questions.  In particular, if Trump does stay in office (no matter the circumstances), what will happen next?  This is its own chamber of horrors, but at least it does not involve running around with one's hair on fire for years while people say, "Oh, come on, you're being an alarmist."  In any case, in a post-democratic America, how would the government's policies change?  (I insist on putting that question in the conditional tense, even though that seems naively optimistic.)

Donald Trump's Racism is America's Racism

 By Eric Segall

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

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

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

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

by Neil H. Buchanan

 

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

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

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

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