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.
------------------------------------------------------------------

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.

Tuesday, March 31, 2020

Manly Men, Macho Grades, and a Proposal to Recognize "Excellence"

by Neil H. Buchanan

Trying to keep our corner of society running as well as possible under scary circumstances, professors in colleges and universities nationwide have responded to the global pandemic by changing our grading systems for (what we hope will only need to be) the current semester.  The most cynical way to describe such changes is that grading is now "easier," which is freaking out the guardians of nerd machismo in the academy.

I cannot possibly improve on my Dorf on Law co-blogger Diane Klein's magnum opus from this past Friday, in which she systematically dismantled the arguments recently on offer from three law professors who have railed against the temporary grading changes -- although, as Professor Klein points out, it is frequently unclear whether their complaint is actually about curved grading more generally or, perhaps, simply an objection to noticing that our students are human beings who differ from each other in relevant ways.

Again, the Klein essay is masterful.  Although it is longer than the usual Dorf on Law fare, the subject demands extended analysis and she delivers.  It is well worth readers' time.

Here, I want to do two things.  First, I will add some observations in support of the obvious fact that these pro-tough-grading arguments are a bizarre form of what we might call performance masculinity.  Second, I will argue that, at their very best, those arguments actually support not a "rigorous" grading system but simply a grading lottery.

No, your eyes did not deceive you.  I am saying that the argument from the manly men, when taken to its logical conclusion in conjunction with what we know about our students' differences during the crisis, leads to the conclusion that we should simply assign letter grades via a random number generator.

I am not saying that this is a good idea, mind you.  I am saying that it would have been better than keeping grade distinctions (including "high passes" or "satisfactory-plus" grades) in the way that the protectors of manhood wanted us to do.

Monday, March 30, 2020

Optimistic Originalism by Professor Stephen Griffin: A Must Read

By Eric Segall

Law professors and other scholars write new articles about Originalism almost every day of the week. The sheer volume of this content makes it quite difficult to separate the wheat from the chaff. Every now and then, however, an article comes out that makes a seriously new and important contribution to the subject matter. Professor Stephen Griffin's "Optimistic Originalism," is one of those articles.

One of the great tensions between most forms of modern Originalism (that is any theory of Originalism without a component of strong judicial deference) and contemporary constitutional theory is how to reconcile the original public meaning of the Reconstruction Amendments with our modern society. The two most glaring examples of this disconnect are that most scholars and historians believe that the 14th Amendment's original meaning allows segregated schools (D.C. schools were segregated at the time and Congress knew it), and allow laws that overtly and harshly discriminate against women, such as Illinois' law barring women from being attorneys which the Supreme Court upheld in 1872. Yet, few Originalist scholars today are willing to live with those results (and it is unlikely any judge could be confirmed who took those positions). This problem has led to what Griffin accurately describes as "Optimistic Originalism."

Friday, March 27, 2020

Of Prisoner's Dilemmas and Straw Men: A Response to Blackman, Adler, and Krauss on Law School Grading

by Diane Klein

Dramatic (probably temporary) changes to grading policies are afoot in America's law schools, and in higher education more generally, in response to COVID-19, the all-online transition, and the seismic disruption taking place in education across the United States.  No sooner had thousands of faculty members figured out how to deliver their courses over Zoom and similar platforms, many for the first time ever, than the inevitable subject of grading had to be addressed.  Right now, when deadliest day follows deadliest day in the crisis, a subject like law school grading policy is a matter of urgent concern to only a tiny fraction of the U.S. population - consisting, in rapidly descending order, of U.S. law students themselves (about 113,000 nationwide), law faculties and administrations, and legal employers.  Most of the rest of the world probably could not care less.  But if you do care, keep reading!

Even Now, Suspending All Taxes Is Unnecessary (and Insane)

by Neil H. Buchanan

The U.S. Senate has now unanimously (!) passed the $2 trillion dollar stimulus bill that had been temporarily delayed while Democrats tried to reduce what we might as well call the "corruption premium" that Republicans had built into their initial proposal.  I continue to believe that, even though this is the "the largest fiscal stimulus package in modern American history" (as The New York Times insists on putting it, even though that claim is acontextual and means nothing), much more will soon be needed.

In my paired Verdict and Dorf on Law columns earlier this week, I argued that it would have been acceptable for the Democrats to agree to pay the bribes that the Republicans demanded, because we should simply admit that one of our major political parties is not going to treat this most serious of situations any different from any other.  They exploit every situation to push through regressive money grabs, and in this crisis the need for speed supersedes the desire to prevent distributive injustice (aka reverse-Robin Hoodism).

For the record, I am delighted that the Democrats were able to improve the bill as much as they did, in particular by creating what appears to be genuine oversight of the half-trillion-dollar slush fund over which Treasury Secretary Steve Mnuchin had been all but salivating.  The Democrats took some short-term public-relations hits by being the party that voted no, but what they extracted with only an extra couple of days of hard negotiating was impressive.

As I wrote above, however, this is the first of what will probably be multiple trips to the well.  When it quickly becomes clear that one-shot payments to no-longer-working Americans that amount to a few weeks' pay will not do the trick, what will Republicans demand in exchange for what they will surely brand as "another round of government handouts"?  And no matter what they demand, how should Democrats respond?

To pose the question more bluntly, is there any limit to my argument that the times demand that Democrats allow Republicans to grab what they can, hoping that at some point in the post-crisis future (but maybe not even then) we can revisit the injustices that Republicans insist upon extorting in exchange for their consent today?  Are things truly that desperate?

The best way to think about this is to look at the most extreme Republican crisis-based claim that I have seen to date: That we should shut down the U.S. tax system.  This is truly a WTF idea, but is it too much in the current crisis?  Yes it is.

Thursday, March 26, 2020

The Potentially Deadly Toll of a Law Professor's Libertarianism

by Michael C. Dorf

My Verdict column calling for a national lockdown and, if needed to ensure its enforcement, suspension of habeas corpus, continues to receive pushback. Some of that pushback has a through-the-looking-glass quality, like this piece in RT, which for those unfamiliar, is a Putin-backed propaganda outlet for pro-Trump and other trollish views. I shall wear being called an "authoritarian minded law professor" by an organ of a foreign authoritarian as a badge of honor.

That said, the RT article makes a valid point: people who raise doubts about lockdown policies could have a legitimate argument and thus should be given a hearing. Today I'll look at the most prominent law professor to make the case that we are overreacting: Richard Epstein. His views do not withstand even the most minimal scrutiny and may already be responsible for serious real-world effects.

Wednesday, March 25, 2020

And Now, Charybdis: The Risks of Recording (Especially Synchronous) Classes

by Diane Klein

In two recent posts, I have presented some arguments in favor of recording your classes and captioning those recordings, based primarily on accessibility issues, including economic ("digital divide") and pedagogical/legal concerns, and the costs and risks of failing to do so.  Without taking any of that back, I'd now like to present the other side: not arguments against taping per se, but some of the distinctive risks associated with recording your classes - and especially, synchronous classes in which students participate.  In the absence of clear institutional taping policies, the problems are non-trivial, the best way to negotiate through them is far from obvious, and the right choice for one class, school, or professor may not be the same as for another.

Tuesday, March 24, 2020

Hostage-Taking, Bribes, and the Republican's Stimulus/Bailout BIll

by Neil H. Buchanan

As of this moment (late Monday morning), there is still no deal on an economic stimulus/bailout bill in the U.S. Senate.  Whenever a deal goes through, the result will be deeply flawed and almost certainly inadequate to the moment.  That means that we will go through this again, probably very soon.  What should senators who mean to do good (that is, not Republicans) do in the current situation to minimize the damage and maximize the positive impact?

In my new Verdict column today, "What Should Democrats Do About Republicans’ Insistence on Lining Their Own Pockets With the Stimulus Plan?" my advice for Democrats (in the form of more than two thousands words) boils down to this: Fold.  Give up.  Feel good about trying to make the bill less of a money-grab for Republicans and their backers, but get it over with.  Something is better than nothing.

Allow me to elaborate.

Monday, March 23, 2020

Indefinite Detention? Trillion-Dollar Coins? A Framework for Thinking About Emergency Measures

by Michael C. Dorf

Just over a week ago, I urged Congress to enact legislation "locking down" the country and, if necessary, temporarily suspending the privilege of the writ of habeas corpus. As I related in a follow-up essay here on the blog, most of the critical commentary on my column focused on habeas suspension, even though I did not and do not regard that as the core of the proposal. For me, the key is lockdown. I am heartened that in the intervening period the governors of several of the hardest hit states (including NY, where I live) have issued stay-at-home policies. I think most of these policies are too lenient for this stage of the crisis and that broader federal action is needed, but something is better than nothing.

Meanwhile, on Twitter and elsewhere, various commentators questioned my willingness to give sweeping power to President Trump and his administration, whom we have good reason to distrust. I responded in my blog post that that is the reason I would want Congress to include sunset provisions, so much as practicable to specify details, and to delegate to medical professionals like Dr. Fauci, but I acknowledged that a substantial degree of discretion in the implementation of the policy would inevitably end up in Trump's hands, and that while that is a very substantial worry, I did not see a good alternative.

In the balance of today's essay, I want to elaborate a framework for thinking about emergency measures. I'll orient the discussion around two proposals: a collection of requests from the Department of Justice (DOJ) to Congress for substantial changes to how courts operate; and Representative Rashida Tlaib's proposal to give everyone in the US a $2,000 debit card plus $1,000/month so long as the coronavirus crisis persists, all funded by the Treasury minting two trillion-dollar coins to be purchased by the Fed.

Sunday, March 22, 2020

Parenting in the Age of the Coronavirus

By Eric Segall

Like millions of parents here and abroad, my wife and I are trying to juggle our work responsibilities (Lynne is a business school professor) with our parental duties while we are effectively home bound other than walks around the neighborhood with our dogs and occasional trips to the grocery and pharmacy. Our daughters are Sara, 12 and Katie, 11 (I also have a 29 year old daughter Jessica who is safe and sound elsewhere).

It appears that this is going to be our way of life for a while so I thought I would share a few thoughts and questions about what Lynne and I are going through right now to keep our children safe, sound, and sane. If you're looking for clear answers to the issues I am going to raise, you might want to stop reading now. Also, I am not claiming any special expertise regarding parenting but writing this in the hopes of, maybe, making other parents feel not so alone when essentially, other than our immediate families, and communicating via various technology, we are mostly alone.

One of the hardest decisions parents have to make in good times and bad is whether to employ clear rules or flexible standards (an issue also of course facing legislators, executives, and judges as well). "Never jump out your third story window," would be an example of a clear rule (with an implicit emergency exception built in), whereas "eat a reasonable amount of ice cream," would be a fairly flexible standard. Because anarchy is not a realistic option for most (maybe all) households, we, like all parents, have to communicate to Sara and Katie a laundry list of rules and standards.

Friday, March 20, 2020

COVID-19 Part 7: The Chinese State's Evolution

by Michael C. Dorf

Donald Trump's repeated references to SARS-CoV-2 (the coronavirus that causes COVID-19) as a "Chinese virus" encourages racism against Asians and Asian Americans, undercuts the willingness of the Chinese government to provide us with vitally needed assistance that it is almost uniquely positioned to provide, and serves to distract Americans from the ways in which his administration has, through incompetence and egotism, turned what would have been an extremely challenging public health emergency for any normal President into a catastrophe.

There is still time to act to greatly reduce the destructive impact of COVID-19, but the time is now. A national lockdown of the sort that California is now implementing for even as little as three weeks would slow the spread of the virus and buy sufficient time to ramp up testing so that the U.S. could shift to the sort of extensive testing and individual isolation regimes that have allowed South Korea, Singapore, and Taiwan to fight the virus without shutting down ordinary life. If you haven't already, read this for a fuller picture.

With effective border control, China, where for two days in a row, there have been zero cases of local spread, can now move to something like the testing-plus-isolation regimes that its East Asian neighbors adopted earlier in their respective epidemics. And that leads me to today's topic, which is inspired by the COVID-19 pandemic but actually about something else entirely: what the Chinese government's response to the outbreak tells us about the nature of that government.

Closed: Captioning, Compliance, and the All-Online Transition

by Diane Klein and Brian Grewe, Jr.

So, how's that all-online transition going for you?  If you're anything like the 500+ (600+ as of March 22) members of "Pandemic Pedagogy: Law in a Time of Coronavirus," a Facebook group I spun off of the enormous "Pandemic Pedagogy" group (23,000 teachers from K-12 on up), the answer is decidedly mixed.  So I hate it to make it worse by talking about something else you're probably not doing - but should be: captioning your lectures.

Thursday, March 19, 2020

Yes, We Must Throw Money at the Problem

Note to Readers: My new Verdict column, published today, is titled "Can the Republicans Cancel the Elections, Even Though Trump Can’t?There, I discuss an unusual route by which one or two Republican governors could "win" the election for Trump by shutting down their states' voting.  Enjoy!  My column below discusses a completely different issue.


by Neil H. Buchanan

Today, I am going to say something good about the Trump Administration.  There is no need to reach for the smelling salts, however, because I readily acknowledge that the good thing that they are doing -- throwing money at the economy when that is exactly what is called for -- is entirely cynical and poorly thought out.  But credit is due for breaking with orthodoxy, especially their own particularly pernicious orthodoxy about the national debt.

There are some habits of mind that are simply hard-wired.  One particularly damaging one is for political pundits -- including self-identified liberal pundits -- to use terms like "fiscal responsibility" and "balanced budgets" reflexively as proof of their own seriousness.  Years ago, for example, a New York Times writer chided then-Senator Barack Obama for being too ambitious, saying that rather than running for president, Obama should have stayed in the Senate and fixed America's problems, such as Social Security's supposed crisis.

The fact is that Social Security does not face a crisis and never did.  Among many, many of my columns on this topic, this one from 2012 (!) is representative.  And as I discussed at length in a 2017 law review article, younger generations are not being cheated by Baby Boomers via Social Security.  Even so, one of the safest thing for any pundit to do -- especially pundits who know virtually nothing about economics and must hide behind bromides that they have absorbed but do not understand -- is to intone solemnly that "we must fix Social Security for the good of future generations."

And so it is with budget deficits and debt more generally.  Just this week, Washington Post columnist Dana Milbank -- the quintessence of a self-satisfied neoliberal centrist -- wrote this: "The government, and the U.S. political system, had failed for years at such routine tasks as balancing its books and forging policy consensus. Now, it is failing catastrophically at its most basic function: protecting the American people."

All I could think was: What a tool!  For one thing, the reference to book-balancing was entirely irrelevant to the point that he was making.  For another, he was writing in an environment that screams for us to break out of bad habits and see things clearly.  Even though I agreed with Milbank's major thrust -- that while Trump "has unquestionably made things worse ... he merely exploited a political system that has been unraveling for a quarter-century or more" -- reinforcing the conventional wisdom about balanced budgets was simply irresponsible.

Here, I will explain why balanced budgets (which are never a good idea) are a particularly terrible idea now, and that we should be "busting the budget" like there is no tomorrow.  Along the way, I will explain how and why Trump and the Republicans will screw this up.

Wednesday, March 18, 2020

Chief Justice John Roberts, the 2020 Election, and the Politics of Judicial Review

By Eric Segall
     
     While our country is reeling from the chaotic effects of the Coronavirus, those of us with expertise unrelated to medical issues should probably keep doing what we do. Even though the Supreme Court has postponed new oral arguments, there is a crucial election in November and major constitutional law cases will still be decided by the Court this term. This essay shows how the two are related.

Tuesday, March 17, 2020

COVID-19 Part 6: Toilet Paper, Gasoline, and the Calming Effect of Boredom

by Neil H. Buchanan

The crossover punk/pop band The Offspring's 2008 song "Stuff is Messed Up" (which uses different words for "stuff" and "messed" in the refrain) includes these memorably sarcastic lines:
Now thank God for the media
For saving the day,
Putting it all into perspective in a responsible way.
To look at photo after photo of empty grocery store shelves in newspapers, along with onsite "news" segments with pseudo-reporters standing with empty shelves behind them, one might think that there had been panic buying that left grocery stores across the country denuded of all items.  If one looks at some of those photos closely, however, it is possible to see in the background that other shelves are well stocked, with the scenes framed to appear to be post-apocalyptic.

Most readers will have seen this for themselves by now, I suspect, but I can report from personal experience that my local markets have run out of toilet paper and hand sanitizers and some soaps, but none of the other shelves are even close to empty.  Indeed, the last time I was at my local Publix (two days ago), everything was normal, and employees were methodically restocking various items.  But again, even a supposedly top-tier news sources like The Washington Post is now using a photo of empty shelves where toilet paper was once available as its default for even unrelated coronavirus articles.

So what is going on here?  And is the future to become what the media is already incorrectly portraying current reality to be, with stores turned into scenes from dystopian fiction?  Happily, there is a way to use some basic logic and knowledge of simple business economics to understand why there is no fundamental reason to worry and that Franklin Delano Roosevelt was right that the only thing we have to fear is fear itself.

Monday, March 16, 2020

Making the All-Online Transition Across the Digital Divide

by Diane Klein

Most of us wouldn't teach a class that required note-taking with pen and paper, if we knew in advance that many of our students didn't have those things.  But that's exactly what we are doing with the all-online transition in America's schools in response to the coronavirus crisis.  For students who fall on the wrong side of the "digital divide," it won't matter how good a job faculty do trying to overcome all the challenges inherent to delivering effective instruction online in the weeks and months to come.  They'll miss out all the same.

COVID-19 Part 5: I Call for a National Lockdown and Habeas Suspension

by Michael C. Dorf

Yesterday Verdict published my call for a national lockdown and the suspension of habeas corpus as a means of ensuring that no court enjoins it. I am fully aware that the column takes some controversial positions, including positions that I would not take--indeed positions that would likely outrage me--in other circumstances. The boldest such position is my contention that Congress could invoke the Suspension Clause on the ground that a lethal virus that originated overseas and now threatens the lives of millions of Americans counts as an "Invasion." Today I want, not so much to defend that view, as to explain my approach.

Friday, March 13, 2020

An Online Place

by Diane Klein

Suppose the faculty, staff, and students at nearly every institution of higher learning in the United States woke up tomorrow in the plot of "A Quiet Place."  Terrible fatal monsters were stalking their schools, sensitive to the very least sound.  In response, university administrations ordered everyone to begin using American Sign Language (ASL) for all instructional activities, immediately.

Thursday, March 12, 2020

Supremely Elite: How Democrats Can Make the Justices a Winning Campaign Issue

By Eric Segall

[Disclaimer: With everything going on right now, I know there are much more urgent matters that need addressing than the role of the Supreme Court in the next election, but I’m not a doctor and don’t even play one on TV so I guess I will march on with what I know. My heart goes out to all those affected by the virus.]

As the 2020 general election approaches, Democrats should take heed that exit polls taken after the 2016 Presidential election showed that approximately one-quarter of Donald Trump supporters said the Supreme Court was the most important reason why they voted for him. Trump made the Justices a visible issue in the campaign by saying he would nominate people like the late Justice Antonin Scalia and by publicizing a list of potential Supreme Court nominees, most of whom belonged to the conservative Federalist Society. In September, 2018, just before the mid-term elections, 76% of people polled said the Supreme Court was “very important” to their vote. President Trump and the GOP are likely to politicize the Supreme Court again in the 2020 election.
    
Democrats cannot afford to be passive on this issue, but neither should they emphasize traditionally controversial legal topics such as abortion, gun control, and the separation of church and state. For example, Republicans have long used abortion successfully as a campaign issue. Instead, Democrats should focus on how the Supreme Court has been the best friend of the rich and powerful and the enemy of the middle class, the poor, and minority groups.

Oral Argument 2.0 Launches

Posted by Sherry F. Colb & Jareb A. Gleckel

Even as we all fearfully watch and do what we can to mitigate the pandemic that understandably has taken up nearly all of our attention, other developments occur. In the hope that we might distract readers from graver matters, today we announce a project that has been in the works for some time: Oral Argument 2.0

Wednesday, March 11, 2020

Living in Denial vs. Confronting Our Fears

by Neil H. Buchanan

Until now, I have not felt that I could write about the coronavirus and the accelerating health emergency that has already changed day-to-day life for many Americans (and even more people around the world).  When I considered devoting a full column to the topic, I quickly realized that I simply did not want to do so.  Why did I feel that way, and why did I change my mind today?

The short answer to the latter question is that Professor Dorf's excellent column yesterday inspired me to think directly about the risk/reward questions raised by the possible pandemic.  In that column, he explained why rhetorically minimizing the public impact of the virus -- even in the way that New York's governor Andrew Cuomo reasonably minimizes it ("People not at risk should not overreact"), not in the way that Donald Trump irresponsibly minimizes it ("We have tests for everyone, and they're beautiful tests") -- might not be wise.

After all, it is almost a sine qua non of the early stages of an epidemic/pandemic for the disease to be transmitted among seemingly healthy people.  For Cuomo to say, "Hey, young people, this disease doesn't (apparently) affect you, so go live your lives," is (as Professor Dorf noted) possibly to tell young people to increase the transmission of the disease, thus ultimately dooming not just many older people but even some of those young people themselves (given that the death rate is non-zero even for the least threatened groups).

Because I live in a university town and teach at a law school, this is especially interesting to me, of course.  Although it is true that my students will interact with the outside world, it seems that the risks of continuing to live life normally at a place like the University of Florida approach something like zero (but not zero), which means that we need to worry about the consequences of overreacting.  That said, I do understand why all university administrators -- and especially those at public universities, where the interactions with politicians are most direct -- will err strongly toward (possibly excessive) caution.

I thus expect that I will very soon be ordered to teach all of my classes online, even though that will probably not be the best route forward for any number of reasons.

Again, these few paragraphs of analysis of the coronavirus sitaution were dislodged from my brain by the Dorf column to which I referred above.  For the remainder of this column, however, I want to return to my original question: Why was I not already in the thinking/planning stages of writing multiple columns about this topic?  Short answer: It was probably denial, but it was an interesting form of denial.

Tuesday, March 10, 2020

COVID-19 Part 1: The Costs and Benefits of Coronavirus "Panic"

by Michael C. Dorf

On Sunday, New York Governor Andrew Cuomo publicly pleaded with the federal government for authorization for expanded COVID-19 testing. In the course of his remarks, Cuomo sought to reassure young and healthy people about the small risk that the coronavirus poses to them: “There’s a level of fear here that is not connected to the facts,” he said. “This is not the ebola virus, this is not the SARS virus. This is a virus that we know a lot about… The dangerous aspect again, that vulnerable population.” Put differently, we might characterize Cuomo's advice to young healthy New Yorkers as "don't panic."

Is that good advice? The costs of COVID-19 panic are obvious and serious. People who are not sick hoarding hand sanitizer and masks that will not protect them but that deprive health care workers of essential supplies put others at risk. Yet some panic--in the sense of actions motivated by fear that is disproportionately large relative to individual risk--may actually be socially beneficial here.

Monday, March 09, 2020

Benefits, Burdens, and Legislative Purpose in the Louisiana Abortion Case and Beyond

by Michael C. Dorf

In Planned Parenthood v. Casey, the lead opinion of Justices O'Connor, Kennedy, and Souter said that a law imposes an undue (and thus unconstitutional) burden on abortion if the law "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." In the challenge to the Texas admitting privileges law in Whole Woman's Health (WWH) v. Hellerstedt, some advocates and commentators urged the Court to strike the law down on the ground that the Texas legislature adopted it for the purpose of making it more difficult for women to obtain abortions.

Justice Breyer's majority opinion in WWH repeatedly quoted the "purpose or effect" language, but did not invalidate the admitting-privileges law based on its abortion-restrictive purpose. However, neither did he rely on the law's effects alone. Instead, making sense of the name of the test (undue burden), Justice Breyer refined the Casey test so that it does not look only at burdens but also at benefits. A burden that might be tolerable to advance an important state interest could be deemed substantial and thus undue where the state interest is slight.

To be sure, it would be analytically clearer to say that the substantiality of the obstacles a law imposes is measured independently, the benefits are measured independently, and then the two are weighed against each other. And I read Justice Breyer's opinion as more or less saying that the Casey opinion should be read to mean something like that even though it does not expressly refer to benefits. To my mind, Breyer's understanding is both analytically sounder and more faithful to what the plurality was trying to do in Casey than the Casey formulation itself.

Where any of that will go in June Medical Services v. Russo--the Louisiana abortion case argued last week--is not at all clear. As I noted in my preview of the case, there is a chance that the Court will decide the case by changing the law of third-party standing to disallow doctors and clinics to challenge abortion regulations, even those that target them. Certainly Justice Alito seemed receptive to that line of argument.

But there is also a chance the Court will reach the merits. I am not as much of a legal realist as Prof. Segall, but I am enough of one to think that the Court's merits ruling will have much more to do with the Justices' views about abortion than about how to measure purposes, balancing tests, and the like. However, I also think that the questions raised during the oral argument about those more abstract issues can arise in other, less fraught, contexts, and so I'll say a few words about them.

Friday, March 06, 2020

Now Is An Acceptable (and Possibly the Only) Time for the Democrats to Be Suckers

[Note to readers: My most recent Verdict column, "Another Attempt to Find Optimism in American Politics," was published yesterday.  My column today here on Dorf on Law addresses a different topic, but I do hope that many of you will read the Verdict piece as well.]



by Neil H. Buchanan

The indispensable website thesaurus.com (which just helped me replace the word essential with indispensable) offers the following synonyms for the word "sucker": chump, dupe, fool, gull, patsy, sap, stooge.  In turn, the entry for "patsy" includes (among others): doormat, sitting duck, pushover, sap, schmuck, and easy mark.

Last week, The New York Times published an op-ed by Columbia Law professor Tim Wu with the wonderful title: "Quantifying Liberal Suckerdom."  The piece summarizes an interesting little study by Wu's Columbia colleague Kristen Underhill and two co-authors that attempts to measure whether and how much liberals are pushovers, saps, dupes, fools, and easy marks.

The study is of a type now popular in the academic literature that tries to extract information from an unlikely angle and then run with the results.  Here, the claim is that conservatives in Congress outright reject liberal policies whereas liberals accept conservative policies so long as there is a sunset, i.e., the law includes an expiration date.  The difference between those two approaches, apparently, is the difference between being shrewd and being a sucker.

Probably the most well known example of a law with a sunset provision is the Economic Growth And Tax Relief Reconciliation Act 2001, which (with a 2003 add-on) became known as the Bush Tax Cuts.  Similarly, the non-business reductions in the highly regressive 2017 Trump/Republican tax cut bills are sunsetted in 2025, turning a bill that was already stroking the rich to an extraordinary degree into even more of an exercise in Reverse Robin Hood politics half of a decade from now.

As someone who has been bemoaning liberals' patsy-hood for years, I admit that my attraction to Wu's article (and the study that he cites) might reek of confirmation bias.  I am dubious about the study's reasoning, however, even though I am absolutely sure that Democrats too often allow themselves to be played for dupes.

At the end of this column, I will compare what Democrats are doing with respect to the COVID-19 situation with what Republicans would be doing if the roles were reversed.  But first, it is helpful to think in some depth about political suckerdom.

Thursday, March 05, 2020

Bernie Sanders on Marijuana Legalization

by Michael C. Dorf

Throughout the caucus and primary season, Democrats have been deciding on a candidate by considering who is more likely to win the general election (and how much more likely) and choosing who would be the best President. That choice is simpler now that the race has been effectively narrowed to two contenders, but it is by no means simple.

Consider my own calculus. My policy views are heterogeneous but on average closer to those of Bernie Sanders than Joe Biden. Meanwhile, just last month I tentatively suggested that the usual framing of base mobilization (via Sanders) versus appeals to moderate swing voters (via Biden) could be wrong--that Sanders might be better positioned both to motivate base activists and to appeal to potential swing voters because, as a left-leaning populist he could better compete with Trump's right-wing populism. However, that tentative suggestion could be wrong in various ways. Sanders draws huge crowds for rallies but has not yet generated the sort of turnout bump at the polls that he would need to generate for the turnout theory to be reliable in the general; meanwhile, Biden's appeal to African American voters could be crucial in the general; pointing the other way, there is also the question of how many Sanders primary voters would stay home or vote third-party should Biden win the nomination. With so much uncertainty, I am therefore going to continue to withhold the coveted Dorf endorsement. (That's meant to be self-deprecatingly ironic, in case there was any doubt.)

My refusal to give voting advice does not mean that I'm going to have nothing to say about the Presidential election, however. From time to time, I'll take a deepish dive into something I might actually know something about. Today's topic: The proposal by Sanders to legalize marijuana nationally by executive order. Although I mostly share the underlying policy goals, some important elements of the proposal are legally dubious.

Wednesday, March 04, 2020

The Democratic Elite Supercharges the Heckler's Veto Against Bernie Sanders

by Neil H. Buchanan
Well, that was fast.  Five days ago, Joe Biden's candidacy was dead in the water and Bernie Sanders was all but assured of the nomination, with Michael Bloomberg still out there as a possible "savior" from the commie scourge that Sanders (and, to a lesser degree, Elizabeth Warren) represents.  Pete Buttigieg and Amy Klobuchar were still possible insider alternatives.

It is rare these days that this kind of rapid, chaotic change in the news is not directly caused by Donald Trump, but this one was truly the doing of the Democratic Establishment.  They succeeded in pushing Buttigieg and Klobuchar out (with inducements that we will probably never hear about), Bloomberg dropped out this morning, and and it looks like Warren will drop out very soon.  Although Sanders will surely soldier on, the party's elite has gotten its way: Joe Biden now looks to be the nominee to beat Trump "like a drum."

I am hardly the only person to notice that Biden is actually one of the weakest presidential candidates of all time.  I actually predicted (with appropriate caveats, but I was still wrong) that Biden's weaknesses were so bad -- and so obvious -- that the party's insiders would ease him out before now and coalesce behind Buttigieg or some other mushy, manipulable protector of the status quo.  It will undeniably be easy to argue that Biden is far superior to Trump, but Barack Obama's wing man is sure to give us many cringe-inducing moments between now and November 3.

OK, so that is my take on the current state of affairs, provided for future amusement (or possibly validation) when I look back over my columns in a few months or years.  My planned substantive contribution in this column, however, is to describe how the party establishment's actions resemble the heckler's veto in pushing back against Bernie Sanders's unremarkable New Deal-style policy views -- and also in pushing back against Liz Warren's attempts to improve capitalism.  It is not a pretty story.

Tuesday, March 03, 2020

To Ask the Question Presented in June Medical is to Answer it

by Michael C. Dorf

Tomorrow the Supreme Court will hear oral argument in June Medical Services LLC v. Russo. The case presents the following question: "Whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt." Whole Woman's Health invalidated a Texas law requiring physicians who perform abortions to have admitting privileges at a local hospital, so unless the Constitution means something different in Louisiana from what it means in Texas, the obvious answer to that question is yes. Nonetheless, one would have to be very naive to think there is not a substantial possibility that Louisiana will prevail.

Monday, March 02, 2020

Teaching Constitutional Law in a World Where the Justices Just Make Up the Law

By Eric Segall

I am often asked by other law professors how I teach constitutional law given my hyper-critical views about the Supreme Court. I respond by saying that: 1) the subject is on the bar exam so of course I emphasize and make clear the black letter "law;" 2) the class is wonderful for helping students improve their critical thinking; 3) if you are going to practice constitutional law you need to learn how to talk the talk of formalism and legal rules; and 4) I disclose my priors to students on the first day of class so they have an idea what the course is going to be like.

Nevertheless, I understand why I get this question all the time. As Professor Christopher Sprigman recently said on Twitter, he tried teaching constitutional law but stopped "because my students were unhappy when I would point out how the Supreme Court was making it up, often incoherently. Students want to believe in what is in reality a bad discipline." Numerous other professors have complained about the same frustration to me over the years.

Professor Sprigman's charge that the Justices are just "making it up" needs to be unpacked just a bit because many Supreme Court experts likely disagree or perhaps phrase what the Justices do less insultingly. But Sprigman is exactly right. In most constitutional law cases, there is no helpful text or history and the Justices (and lower courts) spend most of their time discussing prior Supreme Court decisions (where there was also no helpful text or history).

Friday, February 28, 2020

Justice Thomas Uncharitably Characterizes His Own Opinion in Brand X

by Michael C. Dorf

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

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

Thursday, February 27, 2020

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

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



by Neil H. Buchanan

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

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

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

Wednesday, February 26, 2020

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

by Michael C. Dorf

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

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

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

Tuesday, February 25, 2020

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

by Neil H. Buchanan

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

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

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

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

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

Monday, February 24, 2020

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

by Michael C. Dorf

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

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

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

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

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

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

Sunday, February 23, 2020

Statement of Former Reinhardt Law Clerks

by Michael C. Dorf

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

Friday, February 21, 2020

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

by Neil H. Buchanan

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

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

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

Thursday, February 20, 2020

Someone Should Tell Trump About Prosecutors' Absolute Immunity

by Michael C. Dorf

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

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

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

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

Wednesday, February 19, 2020

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

by Michael C. Dorf

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

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

Tuesday, February 18, 2020

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

by Neil H. Buchanan

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

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

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

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

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

Monday, February 17, 2020

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

by Michael C. Dorf

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

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

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

Friday, February 14, 2020

Reassessing Judge Reinhardt

by Michael C. Dorf

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

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

Thursday, February 13, 2020

Why Are Trump and the Republicans Showing Even Minimal Restraint?

by Neil H. Buchanan

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

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

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

Wednesday, February 12, 2020

Maybe It Actually Is A Suicide Pact?

by Neil H. Buchanan

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

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

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

Tuesday, February 11, 2020

The Truly Subversive Message of Parasite

by Michael C. Dorf

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

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

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

Monday, February 10, 2020

The Enablers of American Evil: The Rush Limbaugh Story

By Eric Segall

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

Friday, February 07, 2020

Even Atheists Should Be Upset With Trump for Ruining Religion

by Neil H. Buchanan

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

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

Thursday, February 06, 2020

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

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

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

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


by Neil H. Buchanan

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

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

Wednesday, February 05, 2020

Legislative Purpose for Discerning Meaning Versus for Invalidation

by Michael C. Dorf

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

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

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

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

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

Tuesday, February 04, 2020

The Case for Sanders (or Warren)

by Michael C. Dorf

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

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

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

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

Monday, February 03, 2020

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

by Michael C. Dorf

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

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

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

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

Friday, January 31, 2020

Dershowitz's "L'état c'est Trump" is not as crazy as it sounds, but it doesn't benefit Trump

by Michael C. Dorf

On Wednesday, Alan Dershowitz told the US Senate that President Trump's conditioning of the release of congressionally appropriated aid to Ukraine on the announcement of an investigation into Hunter and Joe Biden was not impeachable conduct, even assuming such a quid pro quo were proven beyond a reasonable doubt. Why not? According to Prof Dershowitz, "every public official . . . believes that his election is in the public interest. [Thus,] if a President does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment."

That contention was derided by Congressional Democrats and much of the media, including Susan Glasser, whose New Yorker article was aptly titled "L’ÉTAT, C’EST TRUMP." For his part, Prof. Dershowitz insisted that critics who charged that under his approach a president could have his political rivals assassinated without committing an impeachable offense had misunderstood or deliberately mischaracterized him. Social media chaos ensued, with critics charging that Prof Dershowitz had indeed said that the President is above the law and was trying to walk it back.

I'm not at all interested in whether Prof Dershowitz changed his tune. Rather, I want to analyze the most plausible version of his claim. It appears in a series of tweets. The key one states: "A good motive does not justify criminal behavior. But a mixed motive should not turn perfectly legal conduct into an impeachable crime, as the [House] Manager[s’] theory would." That contention is not crazy. The problem is it has almost nothing to do with Trump's conduct.