Labels Matter: How Professor Jack Balkin Snookered Justice Kagan and Others to Fuel Faux Originalism

 By Eric Segall

In 2007, Professor Jack Balkin of Yale Law School shocked the academic world by arguing that Roe v. Wade could be justified under an "originalist" approach to constitutional interpretation, and that living constitutionalism and originalism were opposite sides of the same coin. Balkin would later expand that article into a book called, of course, "Living Originalism." 

I want to be crystal clear on two points before moving forward. Balkin's descriptive accounts of constitutional law (which rely considerably on social movements) are as sophisticated, interesting, and accurate as any I have ever read. However, his labeling of his theories as "originalism" has not been helpful and has clouded rather than clarified constitutional debates. 

Understanding Government Spending and All That

by Neil H. Buchanan

Last week, I wrote what one might charitably describe as an unrestrained response to Senator Joe Manchin's continued attempts to use cliches and (at best) half-truths to defeat his Democratic colleagues' current spending proposal.  They plan to supplement the physical infrastructure bill that Manchin supports with a "human infrastructure" bill, which is merely a way of saying that the government would invest in improving human beings' ability to function in the economy.  Manchin only wants the bricks-and-mortar bill.

The gist of my argument was that Manchin is engaged in shameless pandering and intellectual dishonesty, an argument that was easy to support by looking at Manchin's own words.  After writing that column, however, I had an "academic moment," in which I returned to a scholars' best instinct: Take a person's words as if they were offered in good faith and ask whether his arguments leave room for reasoned debate that could ultimately converge toward a meeting of the minds.

 

Again, my honest reading of the available evidence is that Manchin is engaged in excuse-making and misdirection, with no evidence that he is interested in being moved to a new position by facts or logic.  But if I am wrong about that, what would I say to try to get him to budge from his current stance?

Unmasking the Power Game Behind Pleas For Civility

by Sherry F. Colb

On September 9, Professors Cornel West and Robert George visited Cornell Law School to engage in civil conversation about topics on which they might disagree. My colleague and friend, Professor Sheri Johnson, expertly moderated the discussion. As a general matter, I like civility. When one can achieve positive ends without being disagreeable, civility is highly desirable. There is, however, a downside to civility that emerged for me as I observed the conversation.

During the discussion, Professor Johnson at one point asked the two men what they thought of the Texas abortion statute that has lately been in the news, SB8. The law prohibits all abortions (save those necessary to prevent a mother's death) starting at six weeks gestation, and it deputizes any private person in the world to bring a lawsuit against a person who induces or performs an abortion or who "aids and abets" the performance of an abortion. I wrote at greater length about this law here. What I will note now is that the statute plainly violates the Constitution under existing doctrine and that it intentionally delegates enforcement to private parties to make it difficult or impossible to declare it unconstitutional prior to its enforcement. The goal is, of course, to deter the universe of individuals who might help a woman exercise her constitutional right to end an unwanted pregnancy, by threatening them with lawsuits by random bounty hunters who have nothing to do with the woman or her wish to have an abortion. What could better capture the sentiment that a pregnant woman is everybody's business?

Anti-Theocracy and the Rule of Law

by Neil H. Buchanan 

 

Yesterday, The New York Times op-ed page ran the latest column from one of their very best (if not the best) opinion writers, the former Supreme Court reporter Linda Greenhouse.  The piece's title, "God Has No Place in Supreme Court Opinions," if anything undersells the import of Greenhouse's coolly impassioned and incisive reaction as the United States "lurches toward theocracy."

 

As it happens, just the day before, I had stepped a bit outside of my usual lanes and published a Verdict column discussing this very issue: "What Would the Church-State Divide Look Like If I Were God? (Irony Alert)."  I typically encourage readers of Dorf on Law to click on my Verdict columns.  Today, I encourage all of you first to read Greenhouse's column and only then to read mine, if you have time.  I believe that my column is worth reading (as one might expect), but I know when to acknowledge a master at work.

Here, I want to discuss some overlap as well as some differences between the two columns (written entirely independently, I should add; Greenhouse and I have never met, and the writing and editing schedules for the columns guarantee that neither of us were influenced by the other's words -- not that I imagine that I am on her RSS feed).  The bottom line in both columns is that the intensifying theocratic repression that dominates this country is truly frightening.

 

I am on record arguing (at length) that his country's days as a constitutional democracy are numbered.  Greenhouse's arguments should remind us that, even if I am later proved wrong and our system survives, this country desperately needs to re-establish a robust separation of church and state.  If voter suppression and gerrymandering do not doom us, uncontrolled theocrats will.

A Modest Proposal: Extend Ex Parte Young to Cover the Likes of Texas Bounty Hunters

 by Michael C. Dorf

Although not widely known by non-lawyers, attorneys who practice in the federal courts are very familiar with the 1908 case of Ex Parte Young for two main reasons. First, it is the leading case articulating the legal fiction that a lawsuit against a government official seeking an injunction directed at that official to act or refrain from acting in some way is not a suit against the state barred by sovereign immunity. Second, Ex Parte Young is commonly cited as vindicating the existence of a cause of action or legal claim against such officials.

In this second function, Ex Parte Young is somewhat redundant with the injunctive relief available against government officials under the main civil rights statute, 42 U.S.C. Sec. 1983. However, there are some circumstances where Ex Parte Young is not redundant. For example, in a case like the 2002 SCOTUS decision in Verizon Md v. Public Serv. Comm'n, the plaintiff was permitted to bring an Ex Parte Young action to enjoin state officials from taking action that violated a federal statute (the federal Telecommunications Act) but not civil rights. A Section 1983 action wouldn't have been available, but Ex Parte Young was.

Because Ex Parte Young is most closely associated with the two important doctrines that bear its name, it is easy to forget the facts of the case. However, they bear examination, because they point the way towards a means for challenging Texas SB 8 and future laws that similarly seek to chill the exercise of constitutional rights while closing the federal courthouse doors to suits for anticipatory relief. Accordingly, let's review what actually occurred in Young.

Joe Manchin Versus Public Investment: Argument by Cliche

by Neil H. Buchanan

Last week, I heard that West Virginia's senior U.S. Senator, Joe Manchin (D, who apparently thinks that it is good form to headline at fundraisers for Republicans in other states) had written an op-ed announcing that he was going to oppose what is now widely known as the Democrats' $3.5 trillion infrastructure budget bill.  No surprise there.  I came across a bit of much-deserved snark at Manchin's call for his colleagues to "take a strategic pause," which was just a few nutrition-free morsels of word salad, but I did not think much more about it.

Yesterday, however, a colleague asked me what I thought about the op-ed, which had been published last week on The Wall Street Journal's infamous op-ed page.  (I am not providing a link to the piece, because it is behind a paywall.  Rupert Murdoch is rich enough.)  After cursing my colleague for putting me in the position where I would force myself to read what Manchin had written, I dove in.

What an unexpected treat!  While Manchin's defenses of the filibuster have been embarrassing efforts that would earn at best a B-minus in any undergraduate course, his pose as a sober centrist on fiscal matters is terrible in a slightly different way.  Yes, when he tries to make arguments, they are full of holes.  Worse, however, is that he relies almost entirely on stale cliches about deficits and supposedly responsible stewardship of the country's economic policy.  (Not that his defenses of the filibuster are cliche-free, now that I think about it.)  This is so bad that it is fun, at least until one remembers the stakes involved.

 

Texas Could Not Get Away With This Absent SCOTUS-Created Limits On Constitutional Adjudication

 by Michael C. Dorf

The Texas Republican lawmakers who enacted S.B. 8--which forbids abortions after roughly six weeks and relies exclusively on private enforcement--bear primary responsibility for both the violation of the constitutional rights of Texans and for the diabolical scheme to deprive them of their ability to challenge the violation before it is too late for thousands of them. That said, the U.S. Supreme Court also bears substantial responsibility.

Much of the SCOTUS responsibility arises out of its refusal to grant interim relief last week. Although I strongly disagree with that decision in light of the balance of the equities, as Chief Justice Roberts recognized in his dissent, the per curiam opinion is not wrong that existing precedent leaves open the question whether elimination of public enforcement enables state legislation to circumvent a pre-enforcement challenge--even when a law's chilling effect will very substantially delay or impede the ability of the law's targets to challenge it in some other way.

But to say that existing procedural law makes the circumvention efforts at the core of S.B. 8 potentially effective is to indict existing procedural law. And let's be clear that the procedural law at issue is the Court's own creation. S.B. 8 is a symptom. The disease is the Supreme Court's justiciability doctrines.

The Changed Abortion Landscape and the Role of States in the New Republican Autocratic Order

by Neil H. Buchanan

What will happen when Republicans complete their anti-constitutional, anti-democratic, and anti-republican takeover of the federal government?  I have been addressing various aspects of that question over the last year or so, including in yesterday's new Verdict column: "A Strange Type of Federalism Awaits Us in Republicans’ Upcoming One-Party Autocracy," which was a prediction and warning about how federal, state, and local government relationships will change after Republicans have ended meaningful elections at the federal level.

In that column, I devoted only a small part of the analysis to the federalism aspects of reproductive rights.  Writing less than forty-eight hours ago, I (along with almost everyone) had not yet learned what the Supreme Court was going to do (or not do) about the Texas abortion-vigilante law.  After the release of the Court's shocking non-decision, Professor Dorf guided us through how that non-enjoined law could and should have been handled.  Although the five most conservative justices hid behind the excuse that they had no way to stop Texas's law, they most certainly could have done so, had they been sufficiently motivated.

 

One side note to all of this is that we can now set aside the belief that Chief Justice Roberts would prevail on his fire-breathing ideological compatriots and get them to act stealthily in overruling Roe.  I suppose it is still possible that, when the Court takes up the Mississippi 15-week abortion case this Fall, Roberts could still convince the others to be cagey and not explicitly end Roe.  They could, for example, say that Roe is still good law, but the threshold is now fourteen weeks -- or, in light of Texas's six-week cutoff, the Court could say that five weeks is the new Roe limit.

But why bother, now that Roberts' unruly group just went rogue and effectively ended abortion rights in any state where the (often heavily gerrymandered) Republican state government adopts Texas's law?  Republicans in Florida and South Dakota are already speeding toward that end, and so will others.  If the theory of only stealthily getting rid of Roe was political optics -- not wanting to make the people who inexplicably took Senator Susan Collins seriously (when she said that Roe would not be at risk) look like idiots, and thus not pushing even more voters away from Republicans -- that ship has now sailed.

That will play out soon enough, but here, I want to return to the federalism question, expanding on some points that I made in yesterday's Verdict column.  Big question: How long will Republicans allow Democrats to do things at the state level, in states where Democrats are still getting elected?  Easy prediction: Not long at all.

The Cloud Cast by SCOTUS Conservatives Over Roe Distinguishes the Texas Law From Most Procedurally Similar Ones

 by Michael C. Dorf

Dissenting from last night's 5-4 order rejecting the plaintiffs' request for an emergency injunction of the Texas "heartbeat law," Chief Justice Roberts spoke for himself and his three more liberal colleagues when he wrote that they

would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws [by relying exclusively on private enforcement]. Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. Both the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect.

(Emphasis added).

It is not difficult to imagine how the heartbeat law's enforcement provisions--relying exclusively on private enforcement by granting power to "any person" to bring lawsuits imposing crippling liability on abortion providers--could be used in the "other areas" to which the Chief Justice refers, and not just in red states. For example, contrary to McDonald v. Chicago, New York could ban possession of all handguns and grant any person the right to sue someone found to possess a handgun for $10,000 per day the handgun is possessed, while forbidding public enforcement. Massachusetts could ban hate speech defined in a way that violates RAV v. St. Paul and use the same enforcement mechanism. Etc.

But here's the thing. Such hypotheticals do not represent the end point of a slippery slope to which the upholding of the heartbeat law could lead. The heartbeat law is actually worse than most such efforts to circumvent anticipatory litigation in federal court. The cloud of uncertainty over abortion rights created by the very Justices in the majority in last night's ruling makes defying the heartbeat law a much riskier proposition than defying the laws in my hypothetical examples.

When to Hold Businesses Accountable for the Bad Acts of their Customers?

 by Michael C. Dorf

My latest Verdict column discusses a lawsuit by Mexico against various U.S. firearms manufacturers and sellers. As I explain there, Mexico raises tort claims under Connecticut and Massachusetts law, but its main obstacle will be a federal statute, the Protection of Lawful Commerce in Arms Act (PLCAA), which shields U.S. firearms manufacturers from most lawsuits claiming that they are responsible for harms caused by criminals using their weapons. I discuss Mexico's two main arguments (at which the complaint merely gestures, because it falls to the defendants to raise PLCAA as a defense): (1) that the defendants' conduct puts the lawsuit within an exception to PLCAA; and that even if not (2) PLCAA doesn't apply to litigation seeking redress for harms occurring outside the U.S.

My column expresses sympathy for Mexico but doubts about the likelihood that it will prevail. After all, as I observe at the end, PLCAA is "a deplorable gift from Congress to the U.S. firearms industry and gun lobby," so it shouldn't be all that surprising that it produces a deplorable result.

Although any reasonably informed observer understands the politics that gave rise to PLCAA, here I want to explore the policy intuition it purports to implement. The basic idea is that criminals who use firearms for illicit purposes should be held accountable for their crimes but firearms manufacturers producing products that are lawful for law-abiding citizens should not be so liable. The intuition has little proper application to a case like this, but might it be valid in other contexts?

New Zealand's Tragedy of Competence and Cohesion in the Coronavirus Pandemic

by Neil H. Buchanan

Note to readers: I have published two new columns this week on Verdict, which I hope that many of you will check out and possibly even find interesting:

-- "Dead Democracy Walking," published yesterday, represents a pivot point from writing about the possible death of the U.S.'s imperfect experiment in constitutional democracy and the rule of law to taking that imminent death as a given; and

-- "Statehood for D.C. Could Not Be Reversed," published this morning, demonstrates that D.C. statehood ought to be an easy call, even under the strained logic of filibuster lovers like Joe Manchin and Kyrsten Sinema, because it could not be reversed by Republicans even after they establish one-party rule.  But I also point out that ultimately it does not matter, because "Dead Democracy Walking."

I am planning to write yet another Verdict column to be published this Thursday, where I will explore the future of federalism under one-party Republican autocracy.

Here, however, I will not follow up on any of that.  Instead, I will return to yet another ongoing crisis that is both tragic and unnecessary.

Supreme Myths II: The Roberts Court Years

 By Eric Segall

My first book, Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges, came out in 2012, about six years after the Roberts Court began. The thesis of the book was not that the Court is always partisan or that all the Justices are awful or that the country would be much better off if only the Court mirrored my progressive politics. The thesis of the book was that over the centuries the Supreme Court has not taken prior positive law seriously enough to justify calling the institution a court. 

It is relatively common ground that judges are not supposed to make all-things-considered decisions but rather they should at least minimally take prior law into account. My book discussed numerous areas of constitutional law since the Founding and reached this conclusion:

Because the Court functions much more like a political veto council than a court of law...the Supreme Court's power to overturn the important decisions of other governmental officials should be seriously re-evaluated. Perhaps, having an ultimate veto council is a good idea for a representative democracy whose people believe in limited government. But if so, we should be honest about how the council is structured and actually operates. It is well past time to pull back the curtain on, and then reassess, the Supreme Court of the United States.

I am not here to argue that in the almost ten years since the book was published the Court has been less a court than during the previous two centuries. But I am here to say that the last ten years strongly support the thesis of Supreme Myths. Moreover, because social media have dramatically altered the landscape of reporting on the Court, more and more people actually understand the inherently flawed nature of a governmental institution staffed by people with jobs for life who wield effectively unreviewable power.

Biden, Afghanistan, and Idealism-as-Pragmatism

by Neil H. Buchanan

Plenty has happened in the ten days since I wrote my Dorf on Law column about Afghanistan.  One happy development is that there is now a reasonably significant chorus of people who are not buying the hawkish hype that the cable shows -- and even supposedly neutral reporters -- have been hyping.  Ezra Klein's NYT piece earlier this week is a good example of this positive genre. 

 

I can thus happily admit that my headline-level assertion that "No One Knows Anything" is now demonstrably false.  It took some time, and there is still plenty of hawkish insanity out there.  Still, the conversation now includes at least a bit of clarity, honesty, and modesty.

Of course, plenty of bad things have happened as well, the most obvious being the terrorist attacks at Kabul's airport yesterday that killed dozens of people.  And because the victims of those attacks include thirteen Americans, this goes beyond a human tragedy and becomes yet another moment when President Biden could make a rash and ultimately tragic recalculation.

As I stipulated in my August 17 piece, I have no special knowledge or expertise about Afghanistan.  My purpose in that column was thus to point out that a reasonably sentient observer could see that the narratives emerging during the chaotic end to the U.S's 20-year military operation in that country were nonsense.  I might not know a lot, but I know BS when I smell it, and the air has been especially fetid this month, even by Washington's standards.

 

Here, rather than trying to step outside my lane and opine about the specifics in Afghanistan, I want to take a step back and ask what a kind of policy and political possibilities now confront Biden, Congress, and our military and national security leaders.  My conclusion, teased in the title of this piece, is that our domestic political situation now presents Biden with what amounts to a freebie, allowing him to take the idealistic position because, as a pragmatic matter, his political fate has already been sealed.  Why not do the right thing?

The Afghanistan Withdrawal and Agent-Relative Duties

 by Michael C. Dorf

A new analysis indicates that over a quarter-million Afghans who worked with or for the United States during the last two decades remain in the country. Most of them will not be evacuated in the five days between now and the self-imposed and Taliban/ISIS-K-enforced deadline for withdrawal of all U.S. forces. We will have failed those people, with catastrophic, often fatal results. More than that, we will have wronged them by violating our agent-relative moral duties towards them.

In moral philosophy, an agent-relative duty is exactly what it sounds like: a moral duty that you owe to particular individuals because of something about your relationship with them. Such duties can be usefully contrasted with agent-neutral duties, which we owe everyone.

For example, your duty not to intentionally kill people (absent justification or excuse) is agent-neutral; you are obligated to refrain from murdering everyone. By contrast, your duty to provide food and shelter for your minor children is agent-relative. You must feed and house your own children but you have fewer duties to others. Most moral theories recognize that while it would be praiseworthy for you to provide food and shelter to strangers (whether minors or adults), doing so is supererogatory; it goes beyond the call of duty.

In the last couple of weeks, we have witnessed compelling testimonials from U.S. personnel who served in Afghanistan alongside Afghans who acted as translators or otherwise assisted the U.S. mission and are now in grave peril of reprisal from the Taliban. What makes these cases so forceful, I will suggest, is that they combine multiple strong grounds for finding agent-relative duties.

The Hybrid Attack on the US Capitol

by Sidney Tarrow

      When hundreds of enraged Trump supporters attacked the U.S. Capitol on January 6th, 2021, Representative Liz Cheney was approached by her Republican colleague, Jim Jordan. According to journalists Carole Leonning and Philip Booker, in their book I Alone Can Fix It (2021), Cheney reported: "While these maniacs are going through the place, I'm standing in the aisle and he [Jordan] said, 'We need to get the ladies away from the aisle. Let me help you.' I smacked his hand away and told him, 'Get away from me. You f---ing did this!'” (Lonis, 2021).

      Cheney’s accusation that Jordan “did this” was both true and false: Jordan and the Trump wing of the Republican Party were certainly complicit in the myth that the 2020 election had been stolen, which enraged the rioters on January 6th. But the attack on the Capitol that day was an insurrection by a social movement – not by a party. This was an insurrection that Donald Trump had incited but ultimately could not control.

      In this post, I will argue that the January 6th insurrection was the product of both a collision and a collusion  between  a political party and a social movement (Tarrow 2021, ch. 8). Whatever Trump’s intentions in inciting the mob to “walk down to the Capitol,” this was a politician’s maneuver. But the insurrection was the action of a movement – albeit one that he had created.

It took me four days to hitchhike from Saginaw

 by Michael C. Dorf

James Carville famously described the politics of Pennsylvania as Philadelphia and Pittsburgh with Alabama in between. This trope fairly describes much of the United States. Wisconsin is Milwaukee and Madison, with Alabama in between. Ohio is Columbus, Cleveland, Cincinnati, and Toledo with Alabama in between. New York is New York City (minus Staten Island) and the upstate small cities of Albany, Buffalo, Rochester, and Syracuse, with Alabama in between. One might also add college towns to round out the description—as I can attest from personal experience: whenever I venture more than five miles outside Ithaca, I see multiple Trump yard signs—some left from 2020, others looking to 2024. Indeed, as Professor Buchanan observed when I made the point to him in an email last week, Carville's aphorism even describes Alabama itself, which is Montgomery and Birmingham, with Alabama in between.

Carville's observation can also be seen in those maps that Donald Trump liked to show to visitors, with counties colored red or blue based on how they voted in the 2016 Presidential election. The map was overwhelmingly red, even though Trump lost the popular vote, because the population density of the Rebublican-majority mostly rural counties is so much smaller than the population density of the Democratic-majority mostly urban and suburban counties.

The geographic distribution of voters and their political preferences shapes our politics. A combination of voluntary sorting, district-based representation in state legislatures and the House of Representatives, much more aggressive partisan gerrymandering by Republicans than by Democrats, and the Supreme Court’s acquiescence in (indeed, enthusiastic support for) the measures by state-level Republicans to combat small-d democracy bode ill for the American experiment.

The foregoing factors account for much of the pessimism expressed over the last several years by both Professor Buchanan and me, at least in the short to medium term. Longer-term predictions are much more difficult to make. The U.S. didn’t have anything approaching genuine democracy until the Voting Rights Act of 1965. The fact that we got some version of democracy, at least for a few decades, and that democracy has periodically emerged in other formerly non-democratic countries at various points in the last century, show that it is possible for democracy to emerge or re-emerge out of undemocratic regimes. That’s in the long run, however, and, well, I’m a Keynesian.

In any event, my main point for today is not simply more political doom and gloom. Mostly I want to register an observation about the psychological impact of the contemporary geographic distribution of American partisanship, in the hope of providing a partial explanation for the acceptance of the Big Lie by so many Republicans. I'll meander my way to the point.

From Slavery to Segregation to Institutional Racism: How the Story is Passed

 By Eric Segall

I grew up forty-five minutes from Manhattan and worked for two summers as a law firm messenger in New York City. I also have studied, taught, and written about race my entire career. Yet, before reading Clint Smith's excellent new book How the Word is Passed: A Reckoning with the History of Slavery Across America, I knew little about New York's substantial role in the slave trade (which I discuss towards the end of this post). My purpose here is not so much to review Smith's pathbreaking book but to make a plea for everyone to read it. 

In How the Word is Passed, Smith visits numerous places where slavery and segregation thrived and through fascinating stories, interviews, and reflections demonstrates with beautiful prose (the author is also a poet) how our present institutional racism is derived from our racist past. The book made me gasp out loud numerous times.

Predictions of the Death of Democracy, Ten Years Ago (a Verdict classic)

by Neil H. Buchanan

To readers: Yesterday brought yet another example of the radicalization of Donald Trump's anti-democratic supporters -- followed by another bonkers response from one of the Trumpiest House members, which was in turn followed by the sound of crickets from Republican House leaders.

 

In light of this now-depressing new normal, for today's classic column, I was going to reprint the column in which I first used the phrase "the end of constitutional democracy" to describe the existential threat of Trumpism:"Is This the Beginning of the End of Constitutional Democracy in the U.S.?"  Verdict published that column ran on June 2, 2016, and I added a few more thoughts in a Dorf on Law column the next day.

Although those columns still, in my completely unbiased opinion, stand up rather well more than five years later, I wanted to go back a bit further to find when I started writing about pre-Trumpian threats to the rule of law in the U.S., even though I was not yet describing them as possibly causing "the end of constitutional democracy."  Although there are even earlier pieces that might qualify, I chose the column below from nearly ten years ago (which I originally published when we were still using very long, non-tweetable headlines).

 

I chose that column today in part because it relies on a theory that I no longer believe to be especially important or descriptive of our reality.  Specifically, at the end of the column I warn darkly that American democracy could soon be under threat, but I attribute that to the growth of economic inequality.  This is, in other words, the now-superseded idea that "we'll see something fascistic arising in the U.S. when the little people can tolerate no more and turn to a strongman in their frustration and rage."

 

As we now know, however, that theory does not provide a plausible explanation of Trump's rise, given that the little people are generally not the ones who are his most extreme supporters.  Notwithstanding Republicans' absurd efforts to rebrand themselves as the "workers' party," their policy preferences are still solidly anti-worker (and anti-consumer, and anti-environment, and anti- ...).

 

So we can file the column below under the category of naive economic essentialism.  To our collective chagrin, the world has learned that racism is stronger than economic self-interest.  Enjoy?

 

The Giving Tree, Eshet Chayil, and the Host/Parasite Relationship

By Sherry F. Colb

When my daughters were little, one of the books that I read to them before bedtime was The Giving Tree, by Shel Silverstein. The story involves a boy who, in today’s parlance, apparently suffered from a failure to launch. He seemed unable to go out into the world and get himself food or shelter. The Giving Tree always had something to offer the boy, and she (I am pretty confident that the tree is a she) was happy to do it. She gave him fruit, wood for building a home, and ultimately a place to rest when he had destroyed all but a remaining stump. I always found the story very sad, but I somehow missed the fact that the story—however well written and creative—is quite ugly and offensive. If I read it to children today, it would be as an example of how misogyny finds its way into “classic” writings.

Originalism Diluted

 By Eric Segall

In a forthcoming article in the Harvard Law Review titled “Originalism Standard and Procedure,” Professor Stephen Sachs continues his Arthurian quest to convince (not sure whom, academics, judges, philosophers, everyone) that originalism is indeed our law. This mission, which he and his frequent writing partner Professor Will Baude, have been on for a while, has generated numerous essays, articles, and blog posts sometimes referred to as the “positivist turn,” or “originalism is our law” originalism. In his latest Article, Sachs argues that originalism is a standard, not a decision procedure. In more common terms, he tells us that originalism is a “destination, not a route.”

 Sachs says the point of borrowing the philosophical distinction between a “standard of rightness” and a “decision procedure” is to demonstrate, not that originalism is true, but that many arguments against originalism are wrongheaded. In his own words, “the uncertainty of our legal past, or the inconsistent behavior of originalism in office, might not count against the theory [of originalism] itself." 

That originalism is difficult, or that reasonable people might disagree about what it shows in a case or series of cases, or that it is easily manipulated and/or evaded, does not disprove the theory because, according to Sachs, we often have standards of correct behavior that are hard to get right but which remain important, worthy, and highly desirable. For example, Sachs points to consequentialists, like retired Judge Richard Posner, who argue that judicial decisions should lead to the best consequences while admitting that how to figure out what that means is hard and usually contestable. So too with originalism. Even if we cannot all get there together, Sachs argues, having the destination is a good thing, and fights along the way are inevitable because humans (including judge and philosophers) are fallible.

When combined with his previous work, Professor Sachs suggests that “our law is the founders’ law until legally changed,” that originalism is at least a formidable contender for being the “founders’ law,” and that whether or not judges are or even could be faithful originalism is irrelevant to what our law is-which is, indeed, originalism.

Professor Sachs’s thesis is unpersuasive for a strange reason, given that he self-describes his work as positivist. The reality, on the ground, is that originalism was never our law at the Founding (just a small part of it), and that originalism (without strong judicial deference) as a final landing place is a road to nowhere but the imposition of personal value judgments by judges who hide behind misleading pointers to disputed historical evidence. It is unclear if Sachs even disagrees with all this because he says the "effectiveness" of originalism as a decision-procedure "is besides the point." 

Afghanistan Briefly Returns to the Public Consciousness, and No One Knows Anything

by Neil H. Buchanan

Suddenly, everyone needs to talk about Afghanistan.  TV and print pundits who clearly know nothing about what is happening in that country -- including the supposedly sober-minded journalists who front straight news desks -- are all opining about what went wrong.  I am not saying that everyone is repeating the same stupid things, or even that everyone's take has been stupid, but there is certainly a lot of uninformed BS flying through the virtual air right now.

Here at Dorf on Law, Afghanistan has hardly been a focus of our concern over the years.  Although we published ten or twelve columns about that country in some of the years in the 2007 through 2011 period, we (like almost everyone else) have said next to nothing at all about Afghanistan since then, even as our country's longest war dragged into the third decade of this millennium.  Our only mention of Afghanistan thus far in 2021 was in a column that I wrote in April discussing bothsidesism, where one of my examples mentioned that Washington Post columnist Max Boot had criticized Joe Biden's Afghanistan policy.  Our one column to mention Afghanistan in all of 2020 and our lone such column in 2019 were not at all devoted to anything remotely resembling foreign policy analysis, simply name-checking Afghanistan in the course of making unrelated arguments.

And this is appropriate, given that our writings follow the public conversation (broadly speaking), which has similarly ignored Afghanistan -- and especially given that neither Professor Dorf nor I happen to have any directly relevant expertise.  Now that it has become all but required for everyone to have a reaction to what is happening, however, I am going to do my best to stay in my lane while calling out others who clearly know even less than I do about the Graveyard of Empires.  Once this kind of thing becomes a public pile-on, it is unsurprising that there is a lot of obviously wrong nonsense out there.

 

In no particular order:

The Justice Scalia Mythology that Still Haunts our Politics and our Law

 By Eric Segall

Justice Antonin Scalia passed away in 2016 but his legacy and the myths surrounding his jurisprudence still severely impact our politics and our law. Not long after his death, George Mason University received a large sum of money from private donors (including the Koch Brothers) to change the law school’s name to the Antonin Scalia Law School. Recently, Harvard Law School announced that it filled its outside-funded Antonin Scalia Professor of Law position. While running for President, Donald Trump repeatedly used the name Antonin Scalia to signify the kinds of judges he would appoint. There is even a play written about Scalia which was performed in the shadow of the highest Court in the land.

These lavish testaments to the late Justice are deeply insulting to women, people of color, LGBTQ folks, and non-Christians, as well as dangerous perpetuations of the fiction that Scalia was a Justice worth honoring. What Scalia stood for the most was the privileging as a matter of law of antiquated and unjust legal traditions, favoring white males over outsider groups, and allowing the government to treat the religious over the secular under the establishment clause. Mountains of evidence for these claims can be found in Scalia’s written opinions, his questions during oral arguments, and his off-the-court statements.

Freedom, Plague-Spreaders, and Holmes's Bad Man

by Neil H. Buchanan

 

The long-overdue backlash against people who elevate their confused notions of personal liberty above the need to fight a catastrophic pandemic continues to intensify, with good reason.  My two most recent columns (here and here) explored the maddening recklessness now personified by the governors of Florida and Texas.

 

Especially in the latter column, I argued that this is not in fact a matter of balancing individual freedom against social harms, because the concepts of force, choice, and all of the other buzzwords that are being endlessly repeated by the antisocial right are deeply incoherent.

There was a very good exchange on the comments board for that second column, with an especially important point offered by Professor Dorf, suggesting that I might have overstated my claim in a way that could seem to endorse the antisocial nihilism of Oliver Wendell Holmes's "bad man."  I will return to that important discussion later in this column, but I should begin with a disclosure of self-interest.

 

How to Choose an Understudy: Reflections on Soon-to-be-Governor Kathy Hochul

 by Michael C. Dorf

New York Governor Andrew Cuomo's resignation is not yet effective. In announcing it, Cuomo said it would take effect in two weeks. Why not immediately? It's not entirely clear. Are there official papers Cuomo wants to pack up (or shred!)? The official explanation is that, given the pandemic, the additional time is needed to ensure a smooth transition. Maybe. The best explanation might be prosaic. Apparently Cuomo has no home other than the Governor's mansion in Albany. Maybe he needs the time to find an apartment.

In any event, pretty soon Kathy Hochul, currently the Lieutenant Governor, will become Governor. That change raises a number of interesting questions about the costs and benefits of having an official understudy (whether it is the lieutenant governor of a state or the national Vice President) who is closely or distantly connected to the chief executive. In this essay, I'll discuss state and national offices somewhat interchangeably, even though I realize that there may be subtle distinctions.

Mandates, Force, Choice, and Meaningless Political Theater

by Neil H. Buchanan

Years ago, a progressive economist (yes, they exist) was presenting a working paper to a full house at an academic conference.  She was discussing poverty, and her comments returned again and again to the claim that poor people were being forced to take dangerous and onerous jobs.  It was a sensible and thoughtful presentation, but toward the end of her remarks, an angry male voice boomed from the back of the room: "Who was it, exactly, that held a gun to their heads?"

This story (which I have surely related before on this blog, but it is still a useful teachable moment) has always struck me as the perfect example of how orthodox economists' notion of force and choice is completely lacking in nuance.  You could have chosen to not work, so you had a choice.  Freedom! 

 

Interestingly, however, the politicians who normally rely on that type of economic thinking have suddenly become convinced that the notion of choice is the exact opposite: If you are faced with any limitations or costs at all for doing whatever the hell you want to do, then you have lost all of your freedom.  This, of course, only applies to the people whom the Ted Cruzes of the world care about, because everyone else loses some options when certain people are given free rein.

Yes, I am talking about vaccine "requirements," mask "mandates," and all the rest of the things that Republicans are now vilifying, which has led them to oppose all public health measures that might "force" someone to do something that they do not feel like doing.  None of it makes sense, but the nonsense goes deeper than it might seem.

 

To be clear, I am fully aware that I am arguing against people who are not making a genuine argument and who are operating in bad faith.  Even so, it is worth taking a deeper look at the underlying presumptions that motivate their antisocial behavior.

 

When Bad Laws Make Bad Constitutional Law: Arkansas Anti-Mask Mandate Edition

by Michael C. Dorf

Hard cases make bad law. So goes an old adage. A hard case tests commitments to legal rules and standards, leading judges to bend or distort those rules and standards, thereby rendering them less useful for the mine run of what should be easy cases.

Today I want to propose and explore a corollary: Some bad laws make bad constitutional law. I'll elaborate with respect to the recent ruling by Judge Fox issuing a preliminary injunction against the enforcement of an Arkansas law (Act 1002) that forbids state or local government actors--including school districts--from mandating face masks, shields, or coverings. When the Arkansas legislature enacted Act 1002 in April of this year, COVID-19 cases were declining and there was some hope that mask mandates for the current pandemic would not be needed again. The law was nonetheless rash, given the possibility of a new disease outbreak or, as we have experienced, the spread of a more contagious variant. The legislature's recent failure to repeal the mask mandate ban, despite the wishes of Governor Asa Hutchinson (who now regrets and wishes to remedy his initial decision to sign Act 1002), is murderous stupidity.

Nonetheless, not all stupid laws are unconstitutional. Justice Scalia used to sometimes say that he wished he had a stamp he could use to label some of the laws he saw challenged "stupid but constitutional." I disagreed with Justice Scalia about exactly which laws would earn that stamp, but I agreed and still agree with the basic idea: A law can be stupid, even criminally so, without being unconstitutional. I fear that might be true of Act 1002. Judge Fox's very brief preliminary injunction opinion does not persuade me otherwise.

What's Andrew Cuomo Thinking?

 by Michael C. Dorf

The report commissioned by the NYS Attorney General into allegations of sexual harassment by Governor Andrew Cuomo is devastating. Thus far, however, Cuomo has resisted widespread calls for his resignation, even though they are coming from former political allies. What is Cuomo thinking? Here I'll explore some hypotheses, but I should say up front that none of them makes a whole lot of sense to me.

Founding-Era Common Law's Relevance to Original Meaning

 by Michael C. Dorf

As advertised here on the blog a week ago, yesterday I participated in the Practicing Law Institute full-day conference reviewing the last Supreme Court Term. It was the 22nd annual conference; as Dean Erwin Chemerinsky noted in his opening remarks, I have presented my views at each and every such conference. I quipped that this announcement made me feel old, to which Prof Burt Neuborne, also a participant from the beginning, responded, that it made him actually be old, which, I suppose, is true of me as well. It was, as always, a fruitful day. Interested readers--especially those in need of CLE credit--can view the recorded version here. (It's expensive, even though we panelists aren't paid, because PLI has a lot of overhead to manage to make these programs available.)

Anyway, I'd like to use today's essay to discuss an issue that Dean Chemerinsky raised a couple of times during the day. He noted that in several of the Court's cases last Term, either a majority or separate opinion placed a great deal of weight on the state of the common law at the Founding in order to ascertain the current operation of some constitutional provision or doctrine.

For example, in Uzuegbunam v. Preczewski, Justice Thomas, writing for a nearly unanimous Court, looked to Founding-era common law to conclude that the availability of nominal damages suffices to establish standing under Article III. Conversely, in Transunion v. Ramirez, the Court, per Justice Kavanaugh, found that the plaintiffs lacked standing because they had failed to identify "a close historical or common-law analogue for their asserted injury." Justice Thomas (joined by the three Democratic appointees) dissented in Transunion, objecting less to the majority's reliance on Founding-era understandings of the scope of judicial power than to its characterization of them.

Those two cases and others we discussed during the course of the day led Dean Chemerinsky to observe that the increasingly prominent place given to Founding-era common law in the Court's jurisprudence shows the increasing importance of originalism on a conservative Court. I agree broadly, but I think the details worth examining.

Rejection of Vaccines and Hostility to Vegans

by Neil H. Buchanan

 

Now that the renewed surge in COVID cases has put the health-care systems in many of the country's less-vaccinated areas (aka TrumpLand) into serious danger of collapse, and with health care workers walking away from their jobs in surprising numbers (leading to staffing shortages in hospitals nationwide), there is a growing sense that it is time to stop coddling the "vaccine hesitant" Americans who are directly causing this disaster.

It would take hours to collect citations to all of the times just in the last two weeks when politicians and pundits have said, in one way or another: "This has to stop.  The vaccine refusers are making life for the rest of us worse, endangering not only themselves but also damaging the economy in which the rest of us would like to re-engage.  No more free riding!"

 

Even the governor of uber-Trumpy Alabama castigated the people who refuse to be vaccinated, saying that "it’s time to start blaming the unvaccinated folks, not the regular folks. It’s the unvaccinated folks that are letting us down."  Yes, she did indeed say that people who are willing to get the vaccine are "regular folks," and the rest are thus deviant -- even though her state's vaccination rate among those 12 years of age or older is under forty percent.

To which I can only say: Finally!  It is long past time to stop treating vaccine refusal as something to which we need to be sensitive -- other than among people with genuine health-related reasons not to be vaccinated, who are the very reason that herd immunity is so important.  As someone who long ago noticed just how snowflaky 21st Century American conservatives have become, I find it hopeful that more and more people are calling them on their selfish "but I don't wanna" irresponsibility.

The question is, however, how to stop being passive and begin to take actions that will cause such people to do what they have thus far refused to do.  Interestingly, the answers can be explored through the lens of another difficult issue in human behavior: getting people to stop (or at least reduce) their consumption of animal products.  How does our experience with one type of antisocial behavior inform another type of antisocial behavior?

Back to Court; Back to School

 by Michael C. Dorf

Building on a SCOTUSblog symposium, my latest Verdict column reflects on the lessons that the Supreme Court might glean from its telephonic oral arguments when it resumes in-person oral arguments. As I note in the column, the recent surge in COVID infections, hospitalizations, and deaths due to the Delta variant and the relaxation of masking and social distancing creates some uncertainty about when in-person SCOTUS arguments will resume, but one hopes the answer is not never.

Likewise for classes at primary, secondary, and post-secondary institutions, including the one at which I teach. Cornell is requiring full vaccination of everyone on-campus, but given the potential for breakthrough infections and the vulnerability of the immunocompromised, I am somewhat uncertain about whether some or all of my students will be on Zoom for some period in the coming semester, which begins in less than three weeks. Surely teachers and administrators at kindergartens, day care centers, and elementary schools with under-12 and thus unvaccinated populations are scrambling even more--their scrambles made worse in places like Florida, in which the Governor appears to be a wholly-owned-subsidiary of the coronavirus (although, as a resident of NYS, I can't exactly throw stones about any other state's governor.) 

For now, in a forward-looking spirit, I want to offer a short reflection on what I as a teacher learned during the pandemic, in the same spirit as my column. In the column, I expressly analogize SCOTUS oral arguments to teaching in various ways. Here I'll focus directly on teaching.

Economic Theory Shows that People Will Make Choices that Worsen the Pandemic (a Verdict classic)

Note to readers: The column below was first published on Verdict almost exactly a year ago, on August 6, 2020.  I am republishing it today because various Republicans (especially the governors of Texas and Florida) are cynically relying on simplistic economic arguments to justify not requiring masks, vaccinations, or anything else, even as the Delta variant devastates those states (and others).  In the column, I explain why even the most basic economic theory shows that "the invisible hand" of aggregated individual choice will most definitely not lead to the best public health outcome in a pandemic. 

 

 

by Neil H. Buchanan

As I write these words, the Trump White House and Republicans in the Senate are holding America hostage to an economic orthodoxy that they simultaneously misunderstand and misapply. Tens of millions of people are anxiously waiting to find out whether they will be able to pay for food and shelter next week and next month, but Republicans have decided to punish them lest Americans become lazy slobs.

I wish I were exaggerating, but I most definitely am not. Notwithstanding the worst economic upheaval in ninety years, the Republicans to a man (and the very occasional woman) have stuck to their guns (pun intended) and are doing everything they can to insult their constituents and make the economy even worse. This is a result of economic illiteracy, and it is not only unconscionable but amounts to political malpractice.

Justice Thomas in his Own Words

 By Eric Segall

Note to readers: Continuing our brief mid-summer break here on Dorf on Law, we offer this classic column from October 2018 discussing our most Senior Supreme Court Justice Clarence Thomas. Since I wrote this post, Thomas has called on the Court to reconsider some of its most important cases, such as New York Times v. Sullivan and Gideon v. Wainwright. Here he is in his own words discussing other major constitutional law issues, race, and how Justices should decide cases, among other topics--Eric Segall

Justice Clarence Thomas is our longest serving Supreme Court Justice. He first came into the public eye in October 1991, when Anita Hill accused him of sexual harassment. He dogmatically denied the claims calling his confirmation hearing a “hi-tech lynching.” He has been embroiled in controversy ever since.

Many conservative Court scholars believe it is Justice Thomas, not the deceased Justice Scalia, who has been the most important driving force behind originalist decision-making. Thomas has written solo opinions challenging well-established Supreme Court doctrine in the areas of gun control, the appropriate balance between church and state, and Congress’ powers to regulate the economy, among many others important swaths of constitutional law. He has also recently been called by one liberal commentator the “most important legal thinker in America.”

Dozens of Thomas’s law clerks have become federal judges, and his originalist statements about constitutional interpretation have been largely adopted by the Federalist Society, a conservative non-profit that is now assisting President Trump in his selection of Supreme Court Justices and lower court judges.

No one can deny Justice Thomas’ influence on our law and politics since he became a Justice more than 25 years ago. Yet, there are numerous aspects of his career that are troubling and mystifying. Here is Justice Thomas in his own words and votes.

Whose Court is it Now?

 by Michael C. Dorf

It's almost August, and that means that next week I'll be participating in the annual Supreme Court Review sponsored by the Practicing Law Institute. If you need CLE credit, this is an informative and entertaining way to get it. As always, I'll be joining a star-studded set of panelists. In addition to counter-punching throughout the day, I have primary responsibility for talking about three cases that I and my co-bloggers have already discussed here at DoL. Accordingly, rather than preview my remarks on those cases, I thought I'd take this opportunity to preview my comments on the overview panel. 

I'll take as my point of departure a recent CNN opinion essay by Jeffrey Toobin. In it, Toobin argues that Clarence Thomas is the de facto Chief Justice of the current Supreme Court. Why? Toobin offers the following chain of reasoning:

(1) The only thing that distinguishes the Chief from the Associate Justices is the Chief's power of assignment when the Chief is in the majority;

(2) With John Roberts more likely than any of the other Republican appointees to join the Democratic appointees on the short end of a 5-4 split, that frequently leaves Thomas, as the most senior Associate Justice with the assignment power in the most important 5-4 cases.

(3) Thus, Thomas, not Roberts, has the more important assignment power and is thus the de facto Chief Justice.

Here I'll dive into what's missing from that syllogism.

Veganism, Year Thirteen: So Much Good News, So Much Bad

by Neil H. Buchanan

 

[Note on August 5, 2021: I have now added the Heller, Keoleian, and Rose piece to the list below.]

 

Each summer, somewhere near the date that I first decided to become a vegan (July 24, 2008), I write one or more of what I have come to call my veganniversary columns.  For those who might be interested, here are the links to previous years' columns: 2020 (plus followup), 2019 (plus followup), 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, and the original announcement in 2008 (plus followup).

 

With few exceptions, I tend to focus on the day-to-day issues that one deals with as a vegan: challenging conversations from family and friends (and even strangers, who are suddenly quite worried about my protein intake), trends in how easy it is to find restaurants with good vegan food (including, of course, the growing number of exclusively vegan restaurants), the favorable trends in the economics of veganism, and so on.

 

Often, these columns grow out of my having noticed a news article, commentary, TV show, or movie that directly or indirectly raises an interesting issue regarding veganism.  Sometimes, I riff on columns written by Professors Colb or Dorf, such as yesterday's column by Professor Dorf (which was only partially about veganism).

 

This year, I have found myself overwhelmed by the number of different possible inspirations that I have come across for the 2021 version of my veganniversary column.  As additional sources of inspiration continued to arrive, I held out hope that I could combine them into a coherent column under a common theme.  I no longer believe that that is possible, or even that it would be the best way to create this year's column.

 

Instead, I decided to reduce my commentary this year in favor of simply providing links to many of the sources that might each have inspired a column.

The good news is there is so much good news, with veganism being treated more respectfully in mainstream publications (far less "Stay with me here while I describe these loopy Granola types, folks" in these stories), impressive advances in the production of vegan food (in particular the types of foods that people declare to be The Reason that they could never be a vegan, especially cheese), and on and on.

The bad news, of course, is that there are still billions of innocent and defenseless non-human creatures who are being tortured and killed for no good reason.  It breaks my heart.

In any event, here are a few of the articles that I have seen lately that provide interesting insights on the state of veganism today.  I do not endorse everything in each one, of course, but I am listing them here simply to allow interested readers to see what has been written and said about veganism recently.  It is an exciting time.

 

Between Tamago and Potemkin

 by Michael C. Dorf

There's an episode of Curb Your Enthusiasm in which Larry arrives at the new house of his manager Jeff and Jeff's wife Susie, who offers Larry the house tour (NSFW: profanity). Larry declines: "No that's okay, I get it.  . . . You know, it's bedrooms, bathrooms, I get it." Susie (played by the great Susie Essman) is incensed, but of course Larry is right. If you move into a new home, you're excited about the closets, the bathroom fixtures, the bay window, etc., but to a visitor, it's all the same.

So too with college campus tours. With one daughter about to start her sophomore year of college and the other about to start her senior year in high school, I have taken more than a handful of campus tours over the last several years. They are pretty pointless. As Larry might say, "I get it. It's buildings, the library, a statue, I get it." A few college campuses are distinctly ugly, but most have some stately old buildings, a pretty quad, a quirky tradition involving a tree, a mascot, or field, and some new gym or dorm that the admissions office instructs the perky student tour guides to highlight. Choosing where to apply based on the tour seems like a bad idea relative to choosing based on hard data (like majors offered, endowment size, student/faculty ratio, student body diversity, financial aid, grad school and job placement rates, etc.) as well as personal factors (like proximity to family or strength in particular subject areas).

Yet there are so many good colleges and universities that a reasonably ambitious applicant will have already compiled a longish list that hits all of the criteria or might take a tour after being admitted to more than one of their top choices, so the campus visit can serve an important function at the margin. It is thus not irrational for prospective or admitted students to place some weight on a campus visit nor for the colleges and universities to try to sell themselves during these visits.

Accordingly, I was shocked when, on one tour at a very highly regarded institution, my daughter and I were subjected to the single worst presentation I have ever experienced from an adult professional. I'll describe it briefly and then connect it to a somewhat broader account of how various institutions and actors go about marketing themselves.

How Is It Possible That the Debt Ceiling Is a Thing Again?

by Neil H. Buchanan

 

"Just when I thought I was out ... they pull me back in!"  OK, I am certainly no Michael Corleone (as far as anyone knows), but this classic quote captures how I have felt in the last few days.

 

Earlier this year, I almost could not believe it when I saw that congressional Republicans had begun floating the idea of again using the debt ceiling to extort concessions from a Democratic president.  In the ensuing obligatory Verdict column on April 29, I wearily argued that Joe Biden might be the president who would finally put this all to rest.  Mostly, however, I hoped that the Republicans would not try to bring back their debt ceiling madness at all.  I am tired of the inanity of it.

So much for that hopeful thought.  Last week, Mitch McConnell announced that Senate Republicans will not agree to adjust or re-suspend the debt ceiling before (or after) it is scheduled to come back to life on July 31.  Earlier today, I published a new Verdict column responding to the new reality that the Republicans are indeed going to take hostages with the debt ceiling again.

I have a few thoughts to add here, but the important thing to remember is that this is yet another situation in which Republicans have not only thrown out all norms and any sense of restraint but are acting with utter disregard for the law.

 

If any president were ever to be forced to face a binding debt ceiling, and if he or she chose (wrongly) to refuse to pay the nation's bills in response, that would be a matter not of reducing government debt in the future but of failing to honor obligations that already exist based on past decisions, as I explain below.  That is the opposite of fiscal responsibility.

What more is there to say?

Partisan Politics, Legal Realism, and the Myth of the Unitary Executive

 By Eric Segall

"Only in an Authoritarian Regime is the President Above the Law"

                                                                                    Professor Victoria Nourse

At the Law & Liberty Blog last week, Professor John McGinnis penned an homage to the Roberts Court decisions over the last few years invalidating how Congress has structured various administrative agencies. In a series of complicated cases, the Justices held that the President must be able to fire agency heads and other officials unconditionally and laws to the contrary, passed by the people's representatives, must give way. These opinions flow directly from the unitary executive theory developed by administrative officials in the Ronald Reagan Justice Department during the 1980's. 

What makes these decisions so fascinating (and wrong) is that the Constitution's text does not  support such a view, there is no persuasive historical evidence underlying the theory, and as a matter of policy it is a terrible idea to give one person so much power, as the Framers surely understood. What most explains these decisions, as even McGinnis implicitly concedes, is politics pure and simple. Libertarian and conservative judges want to limit the administrative state to better free businesses from regulation and so they do so regardless of whether there is any legitimate legal reason for believing the President has to retain such king-like authority. The title of McGinnis's piece is revealing: "Will the Court Tame the Administrative State?"

Addicted to Power, Allergic to Principle (a Dorf on Law classic)

Note to readers: Continuing our brief mid-summer break here on Dorf on Law, we offer this classic column from October 2016, during the last stages of the general election campaign.  In light of House Republicans' actions thus far in 2021, what I wrote about below is almost adorably innocent by comparison.  Sometimes, looking back provides a disquieting reality check.  -- Neil H. Buchanan

 

 

by Neil H. Buchanan

 

I have been doing everything possible not to write -- or even think -- about the new depths to which the Trump campaign has lowered this country.  What we now know about Donald Trump's actions, words, and attitudes toward women is somehow both shocking and completely unsurprising.  This is no longer about Trump being the most unqualified candidate ever to run for the presidency.  This is about human decency.

A lot of Republicans know this.  It is hard to believe that it took the most recent outrage to convince some people to give up on Trump, but better late than never.  There was, at last, a panicked stampede to the exits immediately after we first saw the video in which Trump bragged about being able to sexually assault women.

The problem is that many Republican officials remained in Trump's corner, and some of those who joined the initial stampede have actually doubled back.  Watching those returnees squirm is something to behold.  My favorite line, from Nebraska's Senator Deb Fischer, is that even though she called on Trump to step aside for the good of the country, he ignored her advice.  So she still supports him.  Another profile in courage.

Trumped Up Charges (a Dorf on Law classic)

Note to readers: The column below was first published just over six years ago, on July 13, 2015.  It is, as far as I can tell, the first column on Dorf on Law in which Donald Trump was the focus of analysis.  (One of my columns the previous week mentioned him, but only in passing.)  Please enjoy this classic column, taking us all back to a more innocent time.  -- Neil H. Buchanan

 

 

by Michael Dorf
 

I begin with a confession. From fall 2002 through the summer of 2008, I lived in a building that had the word "TRUMP" displayed above each of the two main entries. It was one of a number of buildings that a real estate development group had built on the west side of Manhattan. My understanding at the time was that although Donald Trump was the front man for the developers, he put up only a small fraction of the money for the development, most of which came from other investors. And then the individual apartment units were sold, so that Trump owned virtually none of the building. I say "virtually" because he or another family member may have owned one or more units, but in any event, their ownership interest was relatively small. There were over 400 apartments in the building. During the nearly six years I lived in the building, "the Donald" was sited on the premises on only two occasions, but neither time by me.

Although he had not yet made a name for himself as a xenophobe, during my period of residency Trump was already well established as an egomaniac. For example, the following statement, which I just pulled from his company's website bio, is typical of the pronouncements he has long made about himself: "Donald J. Trump is the very definition of the American success story, continually setting the standards of excellence while expanding his interests in real estate, sports, and entertainment. He is the archetypal businessman – a deal maker without peer."

I found it embarrassing to live in a building that boldly announced to the world its connection to the Trump empire. Trump's management company was in charge of building maintenance, and truth be told, the staff did a fine job--better than the management companies in other buildings I had lived in. But given that Trump didn't own the building and that NYC buildings, if they have names at all, are typically not named for the management company, I saw no reason why my home and the homes of the hundreds of other residents had to be branded with the Trump name.

Accordingly, I made inquiries about removing the Trump name from the facade. I was told that a few others had also sought its removal but that this was a bad idea because having the Trump name made the building and its units more valuable. I found this hard to believe until I saw a market analsyis of Trump-branded properties and comparable properties that did not bear his name. Other things being equal, the Trump name added value. Apparently, people associated it with quality.

How could this be? I developed two (non-exclusive) hypotheses. First, suppose you are in the market for an apartment. You think (for whatever reason) that Trump only puts his name on high-quality properties. You shop around and you are trying to decide between an apartment in a Trump-branded building and another building. Even though you think that the apartments and buildings appear to be of equal quality, you believe that buildings and apartments often have hidden aspects, and so you are willing to pay a Trump premium for the apartment in the Trump-branded building. Second, many purchasers of apartment units in NYC buildings are foreign investors who don't even see the units before purchasing, and so they may be paying a Trump premium because they are buying from afar. Although I had chosen to live in the building despite its bearing the Trump name, it appeared that more people chose to live there because of the Trump name.

Various recent news stories report on how Trump's remarks about undocumented immigrants from Mexico have hurt his business, with various companies canceling collaborations with him. My question is whether the damage to the Trump name will cause a diminution in (or reversal of) the Trump premium for individuals. Undoubtedly, there will be people who, prior to the Donald's presidential announcement, would have paid a premium to stay in a Trump hotel or live in a Trump apartment but who will now regard these prospects as less appealing. And given constant supply, reduced demand should result in lower prices. But whether the demand is reduced sufficiently to turn the Trump premium negative remains to be seen.

If it does, then Trump's troubles could pose an existential threat to his empire. As I understand the business model, a great many of Trump's real estate ventures are like the building I lived in: Other people provide the capital and then they essentially pay Trump a fee to be able to associate their property with his name. Once that name carries a negative connotation with the public, no one not already under contract to pay for the use of his name will continue to do so. Eventually, the Trump name will come off the buildings. 

When Does Government Act Through Private Actors? Texas Private Attorney General Enforcement Against Abortion Providers & Trump's Suits Against Big Tech

 by Michael C. Dorf

A new Texas law, S.B. 8., forbids abortions after six weeks of pregnancy. It's obviously unconstitutional under existing Supreme Court precedent. Whether the relevant precedents will remain on the books in a year remains to be seen. In the meantime, S.B. 8 is unusual in relying entirely on private enforcement.

S.B. 8 expressly bars public enforcement. It gives to "any person, other than an officer or employee of a state or local governmental entity," the right to bring a lawsuit to enjoin forbidden abortions and to collect a bounty for abortions performed in violation of the law. As Dean Amar and Professor Mazzone explain in a recent Verdict column, the law contains that unusual enforcement mechanism for the obvious purpose of preventing doctors, clinics, and women from bringing lawsuits in federal court to categorically enjoin S.B. 8's enforcement. Instead, doctors or others sued under S.B. 8 will be relegated to raising the constitutional right to abortion as a defense in state court. Such a forum will likely be less sympathetic than even the Trump-packed federal courts. Meanwhile, in such a state court case of the constitutional right arising as a defense, even a sympathetic state court judge (or one simply willing to follow the law as declared by SCOTUS) would not be able to grant the sort of broad relief that a court faced with a class action could.

Dean Amar and Professor Mazzone offer a few potential workarounds, including the possibility of a lawsuit against Texas state judges. And indeed, they note at the end of their column that as they were going to press, just such a suit was filed in federal district court in Austin by various Texas-based abortion providers.

Will that suit succeed? Perhaps. However, as Professors Tribe and Vladeck explain in a NY Times op-ed, there is some precedent to overcome: twenty years ago, the Fifth Circuit held that plaintiffs could not bring suit against Louisiana executive officials to challenge a similarly structured abortion law, because those officials had no role in enforcing it. By contrast, state court judges do play some role in giving effect to S.B. 8. Professors Tribe and Vladeck think that should suffice to distinguish the Texas case, and I agree. However, they, as well as Dean Amar and Professor Mazzone, acknowledge that there is no guarantee.

Meanwhile, I'd like to raise a related point about state action. Some readers might be wondering why there is even a constitutional defense available to a doctor in a case in which a pro-life plaintiff sues the doctor in state court under S.B. 8. After all, the private plaintiff isn't a state actor. True, the judge is, but as a general matter the fact that a judge enforces a private right of action doesn't suffice to create state action. Addressing that objection will shed further light on what's wrong with Donald Trump's lawsuits alleging that Facebook, Twitter, and YouTube are state actors for First Amendment purposes.

What a Difference Six Months Make

by Neil H. Buchanan

Six months ago today, Joe Biden took the oath of office and became President of the United States.  (He actually would have become president at noon that day without taking the oath, but no matter.)  At the time, the only reasonable emotion to feel was relief, especially because of the insurrection that had taken place only two weeks before.  Even setting that trauma aside, however, finally having Donald Trump out of office was a very big deal.

Although I was tempted to devote today's column to describing an alternative time line in which Trump stayed in office, instead I will discuss what should have been obvious before Biden moved into the White House.  In particular, I want to explore why non-Republican pundits so often refuse to recognize the extremism of this millennium's version of the Republican Party.  This tendency has never made sense, and it is especially interesting (in a frustrating way) to look in the rear-view mirror at a particularly good example of this naivete.

Telephone Pole Cameras and Long-Term Government Surveillance

by Matthew Tokson

In a decision issued a few days ago, the Seventh Circuit held that the government can warrantlessly use telephone pole cameras to constantly monitor any home for at least one and a half years. While the opinion was both thoughtful and thorough, with many citations to legal scholarship including my own, the holding is aggressively anti-privacy. It would permit the government to monitor any or all residences pervasively and at little cost, and eliminate the zone of privacy that typically surrounds the home. 

Courts are split over pole cameras, and that split may soon deepen after the First Circuit rules en banc in a pending pole camera case. And the pole camera issue seems ripe for Supreme Court review, with relatively clear-cut facts and a form of surveillance that threatens the sanctity of the home. This post previews the potential future showdown over pole cameras by examining the Seventh Circuit’s decision and the broader issue of long-term video surveillance of the home.