Petty Sticklerism That Fortuitously Benefits An Undocumented Immigrant is Still Petty Sticklerism

 by Michael C. Dorf

To qualify for discretionary adjustment of status to be able to remain in the U.S., a federal statute states that deportable non-citizens must show, among other things, that they have "been physically present in the United States for a continuous period of not less than 10 years." The same statute says that the clock stops running once the non-citizen receives "a notice to appear" containing various items of information. Because Augusto Niz-Chavez received some of that information in one mailing and the rest in another, he argued that receipt of neither mailing constituted a notice that sufficed to stop the clock, and thus he satisfied the 10-year continuous presence requirement. That argument is ridiculous.

Nonetheless, six justices bought it. Yesterday, Justice Gorsuch--joined by Justices Thomas, Breyer, Sotomayor, Kagan, and Barrett--wrote an opinion for the Court in Niz-Chavez v. Garland holding that a notice to appear means a single notice containing the relevant information, even if, as was true for Niz-Chavez, his receipt of the notice via two mailings rather than one did not prejudice him in any way.

One can imagine the shape a defense of such an odd ruling might take: Sometimes strict compliance with a rule might be unnecessary in a particular case but important over the long run. Notice requirements might function that way. For example, one might justify strict enforcement of a rule requiring personal service of process, even when a particular defendant received actual notice by mail, on the ground that the mail is not as reliable overall as personal service.

Yet that kind of justification is unavailable in Niz-Chavez. As Justice Kavanaugh (joined by Chief Justice Roberts and Justice Alito) argues persuasively in dissent, the practice at issue of providing notice in two installments--first a notice of the fact that the government is initiating removal proceedings followed later by a notice of exactly when the proceedings will occur--benefits recipients of notice. Under a 2018 SCOTUS ruling, the first notice does not stop the clock, so it does not prejudice recipients, but it does give them extra time to prepare for the removal proceeding. Accordingly, the ruling for Niz-Chavez rests on what is a technicality in all cases; the decision does not announce a rule that serves some broader purpose in other cases despite failing to serve such a purpose in this particular case.

So what is going on? Here I'll offer some hypotheses that lead to the conclusion that Niz-Chavez is at best foolish and arguably a wolf in sheep's clothing.

False Equivalence, Bothsidesism, and the Confusions of Being a Left-Behind Republican

 by Neil H. Buchanan

 

 

[Note to readers: My latest Verdict column, "Will Biden Finally Neuter Republicans’ Debt Ceiling Demagoguery?" was published this morning.  This is one of those occasions where I am departing from our usual practice by writing my Dorf on Law column on a different topic entirely.  Nonetheless, I do hope that some readers here will click through and read that other piece as well.]

It has become a cliche to refer to "tribalism" in American politics, a description that has become commonplace because there is a great deal of evidentiary support for it.  Because the Republican tribe has moved into such extreme territory over recent years, however, the term "cult" is unfortunately the best description of what is happening on that side of the divide.

Even so, the notion of all politicians being part of one tribe or another does capture an element of political partisanship that long predates recent unpleasantness.  Even when there was a great deal of overlap between a center-right party and a center-left party in the U.S., and even when lockstep voting was not the norm in Congress, politicians understandably viewed their tribe as the good guys and the other tribe as the bad guys.

Among other things, the notion of changing parties has been (and certainly continues to be) generally unthinkable.  Yes, Ronald Reagan famously became a Republican "not because I left the Democratic Party, but because the Democratic Party left me," but changing parties after one had launched a political career was rare indeed.  In part, this is because the people who have worked with and for a now-wavering politician continue to view the other side as the bad guys, so switching sides loses one's core of friends and supporters.

 

Meanwhile, the side to which one might switch is filled with people who have long memories and grudges from campaigns and policy battles in the past.  Oddballs like former New York mayor Ed Koch or former Pennsylvania Senator Arlen "I'm invoking Scottish Law" Specter might make news by turning against their longtime allies, but the natural order of things is to maintain party loyalty, for reasons of both habit and survival.

Increasingly, however, even some loyal Republicans who are extremely conservative have found themselves in an impossible position.  They actually do care about some fundamental beliefs, so they are not going to sign on with the MAGA cult, but they cannot figure out what to do next or how to think about their longtime foes who actually believe in the Constitution.  What to do?

Would Justices Alito and Thomas Have the Supreme Court Hear Minor State Law Cases?

by Michael C. Dorf

On Monday the Supreme Court denied leave to Texas to file a lawsuit against California. The suit sought to challenge California's refusal to fund or sponsor travel to states engaging in various forms of "discrimination against lesbian, gay, bisexual, and transgender people." Texas contended that in so doing, California violates the Privileges & Immunities Clause of Article IV, the dormant Commerce Clause, and the Fourteenth Amendment's Equal Protection Clause. These claims are highly dubious, given that states acting in their proprietary capacities have much greater freedom to act than when acting as sovereign regulators. Nonetheless, the Court's denial of leave occasioned a dissent by Justice Alito, joined by Justice Thomas.

That dissent expressed no view on the merits but instead repeated their previously expressed claim that the Supreme Court lacks discretion to decline to hear state-versus-state cases that fall within its original jurisdiction. As I'll explain, a version of the argument Justices Alito and Thomas may be making is terribly misguided on grounds that conservatives (and liberals and everyone in between) ought to find persuasive: if taken seriously it would bring to the Court cases it has no business adjudicating.

Threats of Violence and State-Level Republicans' Efforts to Subvert Future Elections

by Neil H. Buchanan

 

They are still counting ballots in the 2020 U.S. presidential election.  Correction: They are still recounting some ballots, the "they" in this case being Arizona's Republican state senate, using a completely opaque process run by a private contractor with no experience in auditing elections (and run by a man who has been pushing conspiracy theories of the "stop the steal" variety).  Oh, also, Arizona's votes have already been recounted multiple times, and the voting machines have been tested and found to have worked flawlessly.

This will all play out in a very predictable way: The not-really-auditors will announce with some degree of confidence (most likely absolute certainty) that the vote count was wrong or questionable, the losing candidate will then claim that this was true in at least six states, and Republicans nationwide will thereafter further intensify their efforts to suppress votes and allow themselves to take control over future vote counts.

To emphasize that last point, this is no longer "only" about preventing people of color and young people from voting, although there is certainly quite a bit of that.  Election law maven Professor Rick Hasen opened his excellent April 23 opinion piece in The New York Times with this warning:

"A new, more dangerous front has opened in the voting wars, and it’s going to be much harder to counteract than the now-familiar fight over voting rules. At stake is something I never expected to worry about in the United States: the integrity of the vote count. The danger of manipulated election results looms."

This is a crucial distinction.  It is one thing to try to prevent people from voting, which is anti-democratic and despicable but -- as we saw so wonderfully in Georgia in November 2020 and January 2021 -- can be overcome by using the suppression efforts to motivate people to vote in spite (and I do mean spite) of those efforts.  It is another thing entirely to make sure that the votes are counted in one party's favor.  No amount of voter turnout can overcome the latter.

This becomes even worse when we start to see all of the ways in which vote counts can be changed or set aside.  This is all part of an uglier strain of authoritarianism that is becoming an epidemic among Republicans.  (And as usual, they are not interested in being vaccinated.)

Constitutional Fun and Despair: A Week in the Life of a Law Prof

By Eric Segall

Last week was an interesting month. I lived through many of the things that make my job so rewarding and so frustrating all at the same time. 

Monday: I have this little podcast called Supreme Myths which I started during Covid-19 because I was feeling so detached from my friends and colleagues outside Atlanta. My guest last week was New York Times reporter Emily Bazelon, whom I have long admired for her sharp and entertaining views on the Supreme Court. She did not disappoint. We talked about law and politics, legal realism, mass incarceration, and at the end the rumors of Justice Barrett's $2 million book deal in which book, according to the internet, she is going to talk about how judges should leave their feelings behind when deciding cases. Sigh. Emily made the clever observation that Justice Gorsuch, who also wrote a book shortly after being appointed to the Court, did not make anywhere near that much money, and she wondered how he was feeling about that.

Speaking of feelings and judging, Emily and I also discussed a fascinating 2018 article she wrote about the Court lurching right (pre-Barrett), in which Emily quoted the great political scientist Robert Dahl who said that “much of the legitimacy of the Court’s decisions rests upon the fiction that it is not a political institution but exclusively a legal one [and yet] from time to time its members decide cases where legal criteria are not in any realistic sense adequate to the task.” He wrote that in 1957 before the Warren Court, except for Brown, even got off the ground. Just so. Emily was great.

Don't Let Tucker Carlson Shift the Overton Window on Police Reform

by Michael C. Dorf

At the height of the racial justice protests last summer, many activists were demanding that states and localities "defund the police." Although that phrase has no universally agreed upon meaning, virtually no proponents of defunding the police advocate anarchy. Rather, they would shift many of the responsibilities now undertaken by armed police officers to unarmed social workers and others. They would also decriminalize (or in some jurisdictions, further decriminalize) drugs and various other matters, in keeping with a broader program of reducing the role of the carceral state while increasing social support for neglected communities.

None of these ideas is especially radical or even very new. For example, twenty years ago, Prof Colb proposed eliminating traffic stops for minor offenses as a means of limiting both racial profiling and the opportunities for deadly police/civilian confrontations. The movement for drug decriminalization is even older. So are critiques of over-criminalization in the U.S.

Nonetheless, the urgency of last summer's protests provided an apparent opportunity to combine the best progressive ideas for criminal justice reform. Defund the police was not just a slogan, and it remains a powerful movement. However, whether it or even a more modest package of reforms will succeed remains very much an open question.

In the balance of today's essay, I want to talk about how the extreme reaction of the right-wing commentariat to the Derek Chauvin verdict and the broader reactionary trend on the right could, but should not, limit the discussion of reform.

The Habits of Bothsidesism: A Bizarre Defense of Georgia's Voting Law from Someone Who Should Have Known Better

by Neil H. Buchanan

 

After a cataclysm, there is an understandable urge to return to whatever felt like normal in the before-times.  Unfortunately, some of those normal things were bad habits to which we should not want to return.  Although I could be talking about how people will act in a post-pandemic world, I am instead thinking about the post-Trump-cataclysm world of politics and commentary.

In both the pandemic and during Trump's time in Washington, people do/did things that they were absolutely unhappy about doing.  No one wants to wear masks and social distance, to stop taking trips or going out to eat.  Perhaps a few people do not mind or are not affected by any of that, but certainly millions upon millions of people do things differently, because the threat to the world is too great.

 

For a much smaller number of people, the Trump presidency caused them to do things that they never could have imagined.  Journalists were calling lies lies, threatening their self-image as neutral arbiters.  Not all of them were able to respond even to this threat in an appropriate way, and many thus became the journalistic equivalent of pandemic skeptics: "Oh, it's not clear that these are lies.  I want to be fair to all sides.  Who's to say what's true?"  Even so, there were notable changes in journalistic culture, because the threat was so serious.

Similarly, small but important numbers of Republicans gave up on being Republicans, or at least became NeverTrump Republicans who were appalled that their party had become a Trump cult -- only a few of whom think that it can be deprogrammed.  These people found themselves in league with their ideological foes, but they were able to put the interests of the country -- the defense of the rule of law and the peaceful transition of power, and the belief that voting should be encouraged -- above their instincts to stick with their tribe.

This is all to the good, but it also means that the return to something like normal will see people reverting to form.  Some people will go back to being jerks to servers in restaurants, others will pretend that the threat to the Republic ended on January 20 of this year.

There is a wide range of behaviors and attitudes in play here.  Much of it is unremarkable.  Some, however, is outright insane.  By far the most inexplicably crazy reversion to the old normal can be found in an April 14 op-ed by Gabriel Sterling, the Georgia elections official who became famous last Fall when he held an angry news conference begging Trump to tone down his rhetoric, lest someone be hurt or even killed.

The title of Sterling's piece, addressed to Joe Biden, says it all: "Mr. President, Your Misinformation on Georgia’s Voting Law Is Dangerous."  Say what now?

In Politics, Democrats -- and only Democrats -- ask: What’s the Point of Winning?

by Neil H. Buchanan

We no longer see as much of the "Democrats in disarray" trope in U.S. political discussion, and for good reason.  Paul Krugman goes so far as to assert that Democrats are "a party that is far more comfortable in its own skin than it was a dozen years ago."  One might even describe them as -- what word am I searching for? -- confident.

 

True, the latest media trope (especially in Washington Post headlines) is "Some Democrats worry that ____," where the blank is variously "... their current popularity might not last," or "... the Republicans' attack lines might stick," or whatever; but that is merely because certain reporters and editors are addicted to painting Democrats as perpetually in a defensive posture.  It is an assumption supported by decades of reality, but it is still dreary and lazy in the current environment.

Not entirely, however.  After all, even though Democrats have been remarkably unified so far in pushing through a center-left agenda, they are still pikers when it comes to high-stakes politics.  And nothing captures this fainthearted default better than the commitment among some Democrats to reinforce the supposed virtues of bipartisanship, which in turn has led to a small number of senators continuing to defend the filibuster.

In this column, I am interested in a sub-category of defenses of bipartisanship and the filibuster, the most plausible version of which is captured by the saying, "What goes around comes around."  That is, the hyper-cautious response among some Democrats to any suggestion of bold change becomes: "But if we do that to them now, what will happen to us later?"  Notably, Republicans seem never to think that way, so they bull straight ahead without concern.  I will return to that issue later in this column.

Originalism's Discontinuity Problem

 by Michael C. Dorf

There are a great many things wrong with the Sixth Circuit's recent en banc opinion in Pre-Term Cleveland v. McCloud, which rejected a facial challenge to an Ohio law forbidding doctors from knowingly performing abortions on women who have decided to have the abortion based on a Down syndrome diagnosis. The lead opinion by Judge Batchelder concludes that the law doesn't burden the abortion right recognized in Roe and preserved by Casey, Whole Woman's Health, and June Medical--even for women seeking pre-viability abortions--because the woman can still obtain one, even on the basis of a Down diagnosis, by not revealing her reason to her doctor.

Three separate concurring opinions tendentiously describe the Ohio law as combating "eugenics." As Professor Colb explained on the blog last week, the use of that term is offensive; the express comparison to the Holocaust drawn by Judge Griffin is disgusting.

I don't have anything to add about the invocation of eugenics or some other alarming aspects of the lead and concurring opinions in Pre-Term Cleveland. In the balance of today's entry, I want to discuss a less heated topic--what I'll call the discontinuity problem that plagues originalism and some other theories of interpretation. Judge Bush's concurring opinion occasions my observations.

Serious Court Reform: Partisan Balance is the Only Way Out

By Eric Segall

The Supreme Court of the United States plays much too large a role in our nation's politics. The validity of varying state and federal laws on abortion, gun control, campaign finance reform, affirmative action, and numerous other social, political, educational, and economic issues should not be determined by a majority of unelected judges sitting in the nation's Capitol. This institution we call a Court (which isn't one) is unique in all the world and is emphatically not the court the framers thought they were creating. The most important piece of Founding-era history on the nature of the Court was written by Alexander Hamilton who in Federalist 78 said, among other things, the following:

The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority... It therefore belongs to them to ascertain [the Constitution's] meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

In No. 78, Hamilton gave examples of laws that judges would have to invalidate. He said that the "complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like." (emphasis added). Hamilton had no experience with and would clearly not have condoned the broad-reaching common law powers the Court has exercised to constitutionalize so many subjects of importance to the American people that cannot be traced back to clear text or uncontested history. The phrase "irreconcilable variance" does not come close to describing how the Court has exercised its power of judicial review. 

Court reform is now in the air because the GOP has played the appointments game much better than the Democrats, because the Court is now to the right of the American people on many issues, and because our country is finally realizing that an institution composed of unelected, life-tenured governmental officials with essentially unreviewable power, a "court" like none other in the world, is simply not a good idea.

Knowingly Performing Down Syndrome Abortions Is Not "Eugenics"

By Sherry F. Colb

Earlier this week, in Preterm Cleveland v. McCloud, the U.S. Court of Appeals for the Sixth Circuit, in an en banc opinion by Judge Batchelder, upheld an Ohio law prohibiting doctors from knowingly performing abortions for women choosing the procedure because of their belief that the fetus has Down Syndrome (DS). Though the majority opinion contains no references to “eugenics,” several of the concurrences do. This post will suggest that the eugenics claim is not only unconvincing but profoundly offensive. It may be that invoking the specter of eugenics is easier than acknowledging that with Trump’s three Supreme Court appointments, laws prohibiting one or another kind of abortion will survive no matter what the precedents say. To quote Justice Marshall, “Power, not reason, is the new currency of this Court's decisionmaking.”

Republicans and Democrats Are Wrong About Taxes and the Infrastructure Bill, But I'm (Mostly) OK With That

by Neil H. Buchanan 

 

Having overseen the surprisingly smooth passage of the COVID relief act earlier this year, the Biden Administration quickly unveiled its next major piece of legislation.  The bill has a generic official name ("The American Jobs Plan"), but everyone in both parties is simply calling it the infrastructure bill.  As I will explain shortly, that label is misleading in a few very important ways.

Earlier today, I published a column on Verdict in which I responded to the Republicans' attempts to convince people that the infrastructure bill is not about infrastructure at all.  Because it is the core of their job description, writers at reactionary think-tanks have been lying through their collective teeth, claiming that only some tiny percentage of the spending in Biden's proposal is for "real" infrastructure.  As I explain in the piece, that this is nonsense has not stopped the mainstream "tough interviewers" on chat shows, including people who should know better (especially CNN's Jake Tapper), from adopting the Republicans' framing.

The conversation is thus now dominated by Democrats being forced to defend various parts of the bill against the charge that it is merely a liberal wish list of social welfare programs.  Here, I will briefly summarize my response to that absurd conversation.  My main focus, however, will be to discuss a background assumption that is currently being accepted on all sides, which is that the infrastructure bill must be "paid for" (either with the tax increases that Biden has proposed as part of the plan, or with some other source of revenue).

That shared assumption is wrong.  Moreover, this is the kind of error that is usually both infuriating and damaging to good policy analysis.  In this instance, however, it turns out that this very bipartisan error is politically beneficial to progressives.  I would prefer an honest conversation, but if there must be widespread confusion, it is nice to see it finally benefit my side of the policy debate.

Manchin Channels Chamberlain: Will We Have Peace in Our Time in the Senate?

by Neil H. Buchanan

Last week, I laid out a plan to give Senator Joe Manchin some wiggle room regarding the filibuster, which he had defended up to that point with varying degrees of fervor.  The unremarkable premise of my column was that politicians who say, "I will never do X," can still do X at a later date, relying on any number of cover stories.  My specific suggestion was that Manchin could pull a trick play from Mitch McConnell's book and -- just as McConnell had done during the debt ceiling debacles during the Obama years -- vote to suspend and then reinstate the filibuster.  "See, I didn't vote to eliminate it, or even change it.  It still exists!"

At about the same time that I hit "Publish" on that column, The Washington Post was finalizing an op-ed written by Manchin, which they ran under the headline: "Joe Manchin: I will not vote to eliminate or weaken the filibuster."  It turns out that I am more of a cockeyed optimist than I knew, because my first thought was: "Hmmm, 'eliminate or weaken,' eh?  Well, that's easy enough.  He could support plenty of changes in the filibuster -- flip the present-to-vote requirements, change the supermajority threshold, expand reconciliation beyond budgetary matters, and so on -- and call it 'strengthening' the filibuster.  No problem."

Upon reading the piece, however, it became depressingly clear that Manchin is not at all interested in setting up escape hatches.  He is, by all evidence, fully convinced that his duty in life is to protect the filibuster as it currently exists -- which means in a form that has only been around for a few decades, and that has been further adjusted several times along the way -- and he thinks that this is the height of patriotism.

Indeed, Manchin even disparaged the reconciliation process, by which a very limited number of budgetary bills can pass with a simple majority vote.  To read Manchin's words, it appears that he might not even vote under current rules for those bills -- even if he favors them on the merits -- because he thinks that the current rules are too democratic.

 

It is true that the late Senator John McCain once waxed poetic about returning to "regular order" in the Senate, only to turn around almost immediately and vote for the Republicans' disastrous stroke-the-rich tax bill in December 2017, which had been rushed through without even a committee hearing or mark-up.  Maybe Manchin will do the same, but I have doubts.  What is happening?

Biden's SCOTUS Commission Apparently Lacks Authority To Make Recommendations And Is (Way) Too Large

 by Michael C. Dorf

Last week, President Biden fulfilled a campaign promise to create a commission to investigate possible reforms of the Supreme Court. In today's post, I'll offer a few thoughts about the commission. As I read the Executive Order establishing the commission, there is no authority to make recommendations. The EO tasks the commission with soliciting public input, meeting, and producing a report that summarizes the background, history, and current debate over various reform proposals, presumably including but not specifically mentioning Court expansion.

The one provision of the EO that comes closest to authorizing a recommendation requires that the report contain "[a]n analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals." I suppose that the commission could read that authorization expansively, treating "analysis" and "appraisal" as the equivalent of "recommendation," but that is not usually how commissions work.

Politicians who want recommendations know how to ask for them. Thus, Congress appropriated over a million dollars for the Iraq Study Group, which eventually produced a report with 79 concrete and detailed recommendations. If President Biden were really interested in recommendations for legislation or other action, he could have asked for them more directly.

To be sure, with Senator Manchin having ruled filibuster reform off the table, no dramatic recommendation could be enacted anyway. Court expansion would require legislation. Term limits for Justices would require at least legislation and possibly a constitutional amendment. Neither would happen in the current Congress.

It is thus tempting to dismiss the commission as a pointless charade. In the balance of this post, I shall succumb to that temptation, but with an important caveat.

The Roberts Court, First Amendment Fanaticism, and the Myth of Originalism

 By Eric Segall

I’m probably the most aggressive defender of the First Amendment. Most people might think that doesn’t quite fit with my jurisprudence in other areas.… People need to know that we’re not doing politics. We’re doing something different. We’re applying the law.

                                                                                            Chief Justice John Roberts

John Roberts became the Chief  Justice of the United States Supreme Court on September 29, 2005. This term will make the 15th anniversary of the Roberts Court. During that time some important constitutional doctrines stayed more or less the same (abortion and affirmative action) and others changed dramatically (the Spending Power,  the Second Amendment and voting rights). But by a large margin, the Roberts Court generally and the Chief personally have taken the first amendment's free speech clause and turned it into an aggressive tool to impose the Court's conservative values on the rest of us. As discussed below, the numbers are staggering and the consequences for our country immense. And virtually all of it has nothing at all to do with the original meaning of the United States Constitution.

Why Second-Degree Murder is the Maximum Charge for Derek Chauvin--and Some Thoughts on the Broader Issue of Gaps Between the Law and Public Understandings

 by Michael C. Dorf

Someone who is not a lawyer (but is super smart and very well educated) recently asked me why Derek Chauvin wasn't charged with first-degree murder, given the evidence that has been thus far presented making pretty clear to most observers (including both the questioner and me) that Chauvin intended an act--placing and keeping his knee on George Floyd's neck/throat--that he knew would likely lead to Floyd's death. Even if Chauvin did not originally intend to kill Floyd and even if he did not know at the outset that the course of action on which he was embarking would lead to Floyd's death, as the encounter progressed it would likely have come to Chauvin's attention that Floyd was in grave danger, and yet Chauvin persisted. Or at least so it seems a jury could reasonably conclude beyond a reasonable doubt that Chauvin acted with the kind of intent or knowledge sufficient to prove intentional murder.

And indeed, Chauvin does stand accused of intentional murder. It's just that under Minnesota law, intentional murder as such is considered second-degree murder. Minnesota defines first-degree murder as intentional murder that is also pre-meditated. (There are some other circumstances that can turn what would otherwise be second-degree murder into first-degree murder, but none are relevant here). A few minutes of research reveals the following explanation in the Minnesota cases (quotation marks and citations omitted):

A finding of premeditation does not require proof of extensive planning or preparation to kill, nor does it require any specific period of time for deliberation. The state, however, must prove that before the commission of the act but after the defendant formed the intent to kill some appreciable time passed during which the defendant considered, planned, or prepared to commit the act.

Based on that definition/explanation, it appears that the prosecutors in the Chauvin case made the right call to charge the defendant with second but not first-degree murder. My interest here is in the gap between the legislative classification and the public understanding, both with respect to the Minnesota murder laws and more broadly. My tentative view is that, other things being equal, the law ought to reflect common-sense intuitions.

Would Americans Object If Billionaires (Partially) Paid for Social Security?

by Neil H. Buchanan

Today, I thought I might take a short break from despairing about the Republicans' apparently unstoppable efforts to end constitutional democracy in the United States.  Thinking about substantive policy issues is a good palate cleanser, and I had the pleasure earlier this week of presenting some ideas about the American retirement system at the Tax Policy Workshop Series at Duke Law School (via Zoom, unfortunately).  The convenors, Professors Rich Schmalbeck and Larry Zelenak, were gracious hosts, and their twelve seminar students were engaged and offered thoughtful comments and questions.

One series of questions from the students has inspired me to write down a few thoughts about the nature of political buy-in for government programs.  In what some pundits are calling a breakthrough moment in the U.S., voters are at long last rejecting Ronald "government is not the solution to the problem; government is the problem" Reagan's toxic legacy in favor of President Biden's purportedly FDR-esque New New Deal.  Republicans are no longer spending political capital on efforts to privatize Social Security or even to repeal the Affordable Care Act (much less Medicare).  Can we now make positive changes to those programs in a way that maintains or even expands the public's buy-in?

In my first sentence above, I wrote that this column will be a vacation from worrying about the death of the American republic.  That means that the analysis here will proceed under the assumption that something resembling the normal political rules will continue to operate in the future.  In particular, that means assuming that wildly unpopular things will not be politically viable and that both parties will try to pursue at least arguably vote-getting policies.

 

Admittedly, even before the 2020 election and its nihilistic aftermath, Republicans spent years pursuing extremely unpopular policies (their flat-out rejection of even the most minimal gun control measures being the most obvious).  And now?  Yikes.  I thus concede up front that there will be something of a quaint air to this column, as I describe how to achieve widespread political support for a particular policy agenda.  Call me retro.

If Only Mitch McConnell Could Show Joe Manchin How to Foil Mitch McConnell

by Neil H. Buchanan

Although Republicans in 2021 have taken "performative politics" into uncharted territory (just ask Mr. Potato Head), politics has always been in large part about form and not substance.  The point is arguably best illustrated with an extreme counterexample.

 

In 2009-10, the Obama Administration committed what in hindsight looks like political malpractice by giving everyone a tax cut but designing it specifically so that it would be all but invisible.  Why?  Some convincing economic research suggested that many people are likely to save big chunks of a tax cut, whereas the entire point of the Obama stimulus plan was to get people to spend.  We did not want people saying, "Oh, I'm getting $300 from the government, so I'll stick that in the bank for a rainy day," or "I'll use it to pay off some debts."  Instead, the maximum impact would come from having a few extra dollars show up in every paycheck, which people would then spend without even thinking about it, goosing the economy.  The same logic further suggested that Obama could not brag about the money that he was adding to paychecks, because that would tip people off to the virtuous ruse.  Good economics, bad politics.

Often, politicians want to vote against bills that they actually favor (or vice versa).  Prior to the bloody political battles over the debt ceiling from 2011-16, for example, a smattering of politicians would often put on a big show of voting against occasional (and completely necessary) increases in the statutory debt limit.  Senator Barack Obama himself once did so, accompanied by an operatic denunciation of the (nonexistent) evils of the national debt.  Obama knew full well that the increase would pass, but he also knew that he (an obscure Freshman in the U.S. Senate) could get some press by promoting himself as a deficit scold.

Sometimes, people paint themselves into a corner, repeating again and again something like, say, "Read my lips.  No new taxes!"  Unlike George H.W. Bush, however, most politicians apparently believe that a foolish consistency is the path to political success.  What do we do when a politician makes a very public commitment to a foolish position and would be embarrassed to be seen as a flip-flopper?  Enter Senator Joe Manchin.

GOP Obstructionism's Tragic Results

 by Michael C. Dorf

The For the People Act (H.R. 1)--a bill that would expand voting rights, curtail various state-level measures to disenfranchise minority and urban voters, restrict partisan gerrymandering, reform campaign finance, and more--passed the House of Representatives last month without a single Republican vote of "yea." Its fate in the Senate looks dubious, because unlike the American Rescue Plan Act that Congress passed last month, HR1 is not a budget measure that can be accomplished via the Reconciliation procedure--which requires only a simple majority to end debate. HR1 would need to garner support for ending debate from at least ten Republican Senators, which is not going to happen, or would need all fifty Democrats to change the cloture rule in some way. I'll have more to say about the filibuster in the coming weeks and months, but today I want to explore an especially pernicious effect of the unified Republican opposition to popular spending measures. To get there, I'll start with the calculations on the Democratic side.

Race, Caste, and the Myth of American Exceptionalism

 By Eric Segall

Isabel Wilkerson’s book Caste: The Origins of our Discontent, has made a huge impact on the study of race in America. When it was published in 2020, the New York Times gushed that it was an “instant American classic and almost certainly the keynote nonfiction book of the American century thus far.” Most other reviewers agreed.

Wilkerson compares American slavery and Jim Crow to India’s Caste system as well as the Nazis’ treatment of the Jews. Although the comparisons are far from perfect, the analogies still reveal important truths about America both yesterday and today.

The book’s greatest strength is its beautiful prose describing almost unimaginable evil. Wilkerson’s descriptions of India and Germany are dramatic enough, but the stories she recounts of American slavery, lynching, segregation, and even modern-day caste (read racial) prejudice are brutal. Wilkerson’s fluid, conversational, storytelling is simply mesmerizing.

But there is much more to Caste than the horrific recounting of terrible treatments by the “dominant caste” of the “subordinate caste.”  Wilkerson wants the reader to understand Americans’ historic and present-day racism in the context of what she thinks is a more accurate and broader idea, caste, which she defines as follows:

A caste system is an artificial construction, a fixed and embedded ranking of human value that sets the presumed supremacy of one group against the presumed inferiority of other groups on the basis of ancestry and often immutable traits, traits that would be neutral in the abstract but are ascribed life-and-death meaning in a hierarchy favoring the dominant caste whose forebears designed it. A caste system uses rigid, often arbitrary boundaries to keep the ranked groupings apart, distinct from one another and in their assigned place.

Wilkerson goes out of her way to distinguish naked racism from the all-too present desire among the dominant caste to subjugate other people. This is a controversial argument but not the subject of this essay. Instead, I want to focus on the parts of the book describing and accounting for pure American evil. More than anything else, Caste should demolish the myth of American exceptionalism.

How Do We Defeat Demagogues?

by Neil H. Buchanan

Demagoguery is hardly a new problem.  Even so, it waxes and wanes in different places at different times, and the political right in the United States is now in the midst of a full-on embrace of the worst excesses of demagogic hate-mongering.  Can it be defeated?  Not completely, of course, but it should be possible to minimize its damage and send it back into hibernation.

I hope that that is true, in any case.  The problem with demagogues is not merely that they can convince surprising numbers of people to believe harmful nonsense in order to win votes.  The worst kinds of demagogues parlay their initial success by abusing their power in ways that will make them immune to future challenges.  Some demagogues are so popular that the public largely supports their efforts to subvert the political system.  Even they, however, are risk-averse enough to lock down the system to protect themselves from any changes in public sentiment -- not only the possibility of a truly democratic uprising but also the emergence of a rival with even stronger demagogic skills.

Donald Trump is one of the class of demagogues who are never popular with a majority of the people.  Even so, someone in his position knows that if he can stay in power long enough to break the system, being unpopular will no longer matter.

My main purpose today, however, is not to analyze the staying power of demagogues but to note two different styles of demagoguery.  Surprisingly, it turns out that Trump is in some ways the less interesting (but also the less common) of the two.  This inquiry is inspired by a comment on last Friday's Dorf on Law column, where I discussed Ted Cruz's peculiar form of demagoguery.  A reader asked: "This blog post was fascinating. But I have to ask: Now that you have diagnosed Cruz ('style debater'), is there a treatment or cure?"  Good question.

 

Testiness at the First Annual Conference on Originalismism

 by Michael C. Dorf

Yesterday I "attended" and moderated a panel at a fascinating Zoom-based conference hosted by the three law schools with the closest connection to originalism in constitutional interpretation: Georgetown Law Center, the Antonin Scalia Law School at George Mason University, and the University of San Diego School of Law. Because the focus of the conference was the study of originalism rather than originalism itself, the conference was titled "Launching Originalismism." As co-conveners Professors Randy Barnett, Michael Rappaport, and Ilya Somin wrote on the conference homepage:

For many years, constitutional scholars debated whether to give dispositive weight to the Constitution's original meaning. That debate is over. Originalism won. The question has now shifted to how to do so, which is a question about the boundaries of originalism. This first-of-its-kind conference brings together originalist scholars of all stripes, as well as a few stubborn holdouts, to begin the study of originalism itself--in an effort to understand originalism. If originalism is the view that the Constitution's original public meaning was and remains fixed, our topic today is meta: We ask questions that are not within but about originalism. In so doing, we declare ourselves engaged in originalismism. 

Regular readers of this blog will not be surprised to learn that I am what the organizers describe above as a stubborn holdout. Accordingly, the panel I moderated was called Originalismism for Nonoriginalists and Nonoriginalismismists. It featured Professors Mitchell Berman (who presented a paper titled Originalismism Doesn't Even Rise to the Level of Bunk), Cheryl Harris (whose paper Originalismism's Original Original Sin explored the problematic roots of the problematic roots of originalismism), and Jack Balkin (whose book-length paper, Originalism and Originalismism are Dead; Long Live Originalismismism, argued that for any conception originalism-n, where n is the number of "isms," originalism-n+1 can be mapped isomorphically onto originalism-n). Our panel was terrific, but in the balance of today's column I want to focus on the day's first panel, Why Originalismism?