Monday, October 25, 2021

Why SCOTUS Didn't Treat SB8 Like a Capital Case

by Michael C. Dorf

On Friday, the Supreme Court ordered expedited merits briefing in United States v. Texas, the federal government's challenge to SB 8. Oral argument is set for November 1. The order directs the parties to address their arguments to the procedural issues in the case: "May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced?" 

For those (including me) who urged the Justices to vacate the Fifth Circuit's stay and thus reinstate the district court's preliminary injunction against Texas and its agents, there are two pieces of good news here. First, the fact that the Court decided to grant certiorari--which requires four votes--suggests that the four Justices who dissented from the Court's failure to enjoin SB 8 when it came before them via private litigation last month believe that there is a sufficient hope of persuading at least one of their colleagues that none of them voted for a "defensive deny," i.e., to deny review to prevent the Court's majority from creating bad law. Second, by limiting the certiorari grant to the procedural issues, the Court tacitly declined Texas's invitation to use the case as a vehicle for overruling the right to abortion entirely. If that is to happen this Term, it will likely not be until the Court decides the Mississippi case.

So much for the good news. The bad news, as Justice Sotomayor explained in her dissent on Friday, is that by failing to grant the stay pending resolution of the procedural issues, the Court has allowed Texas to effectively deny the abortion right to 95% of Texas women who would otherwise be able to exercise it. The key question is why the Court has allowed Texas to do so. By comparing and contrasting United States v. Texas with the Court's practices in capital cases, I'll consider two hypotheses.

Friday, October 22, 2021

When Is a Crisis with Intergenerational Effects Not an Intergenerational Crisis?

by Neil H. Buchanan
 
In March 2020, Texas's troll-cum-Lieutenant Governor Dan Patrick made news by saying that old people should be willing to die so that their kids and grandkids would not suffer a loss of income.  Am I trying to score cheap points by exaggerating or distorting what he said?  I might be putting it less politely, but that was most definitely his point.  Appearing on one of the evening Fox News dumpster fires, Patrick said:
No one reached out to me and said, "As a senior citizen, are you willing to take a chance on your survival in exchange for keeping the America that all America loves for your children and grandchildren?" [But if] that is the exchange, I’m all in. ... I just think there are lots of grandparents out there in this country, like me, I have six grandchildren, that what we all care about and what we love more than anything are those children. ...  So my message is let’s get back to work, let’s get back to living. Let’s be smart about it and those of us who are 70-plus, we’ll take care of ourselves. But don’t sacrifice the country, don’t do that, don’t ruin this great America."
In my Dorf on Law column last Friday, I mocked Patrick's statement, which actually ran much longer than the quotation above but never said anything more than "economy good, death happens, oh well."  This was relevant because I was discussing the question of whether COVID presents a crisis that is intergenerational in the same sense that the climate disaster and the death of democracy are intergenerational.

I concluded that COVID is not an intergenerational crisis, even though it is very much a crisis on its own terms.  Today, I am going to give the Patrick point of view, or a non-cartoonish version of it, a fuller hearing, because although the point as he made it is horrifying, there is at least a plausible question about whether the differences in the coronavirus's threat to different age groups should cause us to think about this crisis in a different way.

My bottom line: Patrick is (still) a sociopath, and even though there are generational differences in COVID's affects on people's lives, this is still not an intergenerational crisis.  Side point: Even if COVID were an intergenerational crisis, that would not change how we should think about intergenerational crises.
 
Intrigued?  Or perhaps confused?  I sympathize.
 

Thursday, October 21, 2021

Judge Bill Pryor and the Law Clerk: Cancel Culture, Judicial Ethics, and Racism

 By Eric Segall

There is little dispute that cancel culture in legal academia and elsewhere is at the least controversial and at the most quite dangerous to freedom of speech values and academic freedom. In just the last few weeks, a University of Michigan professor got in trouble for showing the 1965 film Othello starring Sir Laurence Olivier (considered by many the greatest actor ever) in blackface. The Chaired Professor issued two apologies and had to cancel classes after students complained. And, there was yet another major dust up at Yale Law School involving a student who invited others to a "trap house" party where "Popeye's chicken, basic-bitch-American-themed snacks (like apple pie, etc.)" and hard and soft drinks would be available. 

The term "trap house," according to Eugene Volokh, "originally referred to crack houses in poor neighborhoods, has, according to Urban Dictionary, 'since been abused by high-school students who like to pretend they're cool by drinking their mom's beer together and saying they're part of a 'traphouse.'" Although the reports are somewhat conflicting, it appears Yale administrators strongly encouraged the student to apologize and suggested not doing so might hurt his career.  

Virtually every other day on the Volokh Conspiracy website one can find stories of people being criticized, harassed, or even fired or punished for some form of speech some people find offensive. It is my view that the general remedy for such behavior is more speech, not official sanctions, depending, of course, on the specific behavior at issue.

But while all of this is going on, there has been awful conduct by the Chief Judge of the Eleventh Circuit Court of Appeals Bill Pryor who, because of life tenure, is not subject to official punitive sanctions, but reveals in an awful way how racist our society continues to be. Although the Washington Post, Above the Law, and a few other outlets have covered the story, the attention has not been serious enough, and I fear the passage of time will remove this debacle from the news cycle. That would be a terrible mistake.

Wednesday, October 20, 2021

The Political Psychology of Fiscal Numerology - Debt Ceiling Edition

 by Michael C. Dorf

Last week I joined Congressman John Yarmuth as a panelist in a program moderated by former Congressman Steve Israel as well as my Government Department colleague Professor Doug Kriner and Erin King Sweeney, who serves as senior associate director of Cornell's Institute of Politics and Global Affairs, which sponsored the event. The panel discussion had been set up a week earlier, when it appeared that it might be occurring just as the global economy was melting down under imminent threat of a U.S. default on its debt obligations.

The short-term increase in the debt ceiling somewhat alleviated the sense of immediately pending doom, but the timing was nonetheless noteworthy because earlier that day Congressman Yarmuth--who chairs the powerful House Budget Committee--announced that he would not seek re-election in 2022. Although Yarmuth is the sole Democrat in Kentucky's delegation, his seat is unlikely to turn red even after redistricting, because his district already reflects the Republican state legislature's efforts to "pack" Democrats from Louisville and environs into a single district, thus rendering the rest of the state's delegation safely Republican.

Nonetheless, Congressman Yarmuth's retirement will be a major loss for the Democratic Party and the country, as he is a dedicated and highly effective public servant. During our discussion, he made some statements endorsing so-called modern monetary theory with which I disagree, but we were in complete agreement on everything directly related to our subject: the debt ceiling. Interested readers can watch the video of the hour-long program here.

In the balance of today's essay, I want to explore a couple of puzzling claims that Congressman Yarmuth made about political psychology--claims I have no reason to doubt, as I trust his own political sense more than my own. My goal, then, is not to question the claims but to explore them.

Tuesday, October 19, 2021

Abortion and the Free Exercise of Christianity

 by Sherry F. Colb

At times, it must seem to many Court-watchers that abortion is its own body of law, separate from the other areas in which the nine Justices issue opinions. And this term, the Court will be hearing an abortion case, Dobbs v. Jackson Women's Health Organization, a case presenting the question whether banning abortion starting at fifteen weeks violates the Constitution. But for this Court, its view of abortion is very much linked to its view of a whole other body of law, the Free Exercise of Religion in the First Amendment to the Constitution. I have an article coming out in the North Carolina Civil Rights Law Review in the Spring that explores the Court's thinking in the realm of religious liberty. But here, I will offer a brief description of my theory and then apply it to abortion and show that it fully explains where the Court is heading on the right to choose.

Monday, October 18, 2021

If Changing Judges Changes Law, Is the Supreme Court a Court of Law?

 By Eric Segall

Retired Judge Richard Posner once said that, “if changing judges changes law, then it is not clear what law is.” There can be no dispute that the Supreme Court of the United States changes law all the time and on extremely important questions that affect all fifty states and over 300,000,000 people. These changes most often occur without any amendments or newly discovered historical materials. I demonstrate this claim below and then offer a few observations about what it all means.

Friday, October 15, 2021

Justice Between Generations in an Unjust World

by Neil H. Buchanan
 
I am back to thinking about intergenerational justice.  This is a topic about which I have written extensively over the last decade-plus, and because I am once again delivering some public and academic lectures around the UK and EU this Fall, I have had reason to return to writing about it -- with the further goal of at long last finishing my book project: What Do We Owe Future Generations?
 
Yesterday, I published a new Verdict column: "Three Threats to Future Generations: Should COVID-19 Change Our Thinking About Climate Disaster or the End of Democracy?"  As I will shortly explain, I attempt in that column to sort out whether the COVID-19 crisis should change the way we think about the two biggest pre-existing threats to future generations: environmental catastrophe and the death of constitutional democracy.  Short answer: No, it does not.

Why think about any of this?  After all, it is now completely clear that our environmental and constitutional crises are nonstop disasters, with no end or even mild mitigation in sight.  Even so, for some purposes, it does not matter whether there is any hope for a better outcome on either score.  That is, even if we end up living in a malign dictatorship that does all it can to deny and speed up environmental disaster, there will nonetheless continue to be issues that might or might not have intergenerational justice implications.

If nothing else, then, I might have something useful to do with my time in a few years, after King Donald II has assumed the throne.  Even if there is no way for anyone -- certainly not scholars -- to change policies in such a dystopia, it will be interesting as a descriptive matter to be able to say: "Initiative X, proposed by Jared the Jester, will not have uniquely bad effects on future generations, even though the current effects are disastrous."  Or the opposite, or something else entirely.  The point is that even policies adopted in an anti-democratic, dystopian hellscape might or might not have intergenerational effects.

How should we think about this?  The threshold issue is to determine how we can distinguish between policy analyses that do and do not meaningfully change when we think about future generations.  I raised that issue in my Verdict piece, and I reached what might seem to be a counterintuitive conclusion.  (At least, one of my research assistants told me that she was taken by surprise.)  I argued that the COVID-19 pandemic is not a crisis that should change the way we think about the two big intergenerational crises.
 
Perhaps somewhat misleadingly, I concluded: “We do not need to view the current pandemic as a third crisis, calling for tradeoffs in dealing with the two crises that already existed.”  Am I thus saying that the worst pandemic in more than a century is somehow small, perhaps not even truly any kind of crisis at all?  No, but I can see why it might have come across that way.

Thursday, October 14, 2021

How Sincere are Religious Objections to COVID-19 Vaccination?

 by Michael C. Dorf

Under federal and state constitutional and other law, when a person claims some entitlement in virtue of a religious belief, neither courts nor other governmental actors challenge the truth of the belief, but in principle, they may question the sincerity of those beliefs. I say "in principle" because recent cases involving claimed religious objections to public health and other measures appear to take such objections at face value without properly scrutinizing them for sincerity.

Here I'll focus on Tuesday's opinion by Federal District Judge David Hurd in Dr. A v. Hochul, granting the plaintiffs' motion for a preliminary injunction against New York's application of its COVID-19 vaccination mandate for health care workers to ostensibly religiously scrupled plaintiffs. In the course of the ensuing discussion, I'll have occasion to observe that the truth and sincerity inquiries may not be entirely possible to disentangle.

Wednesday, October 13, 2021

Minimum Wages, Academic Fads, and the Faux Nobel

by Neil H. Buchanan

The time has come once again to talk about the non-Nobel Prize in Economics.  There are many years in which I choose not to take public notice of the announcement of that prize, either because I have no opinion about the recipients' work or, more likely, because there are too many other things going on in the world to devote one of my columns to discussing what is in the end an obscure academic award.
 
Obscure?  Nobel?  One of the late night shows recently asked passersby in Los Angeles to name even one Nobel winner of any kind, including the Peace Prize.  It was embarrassing to watch those poor people struggle.  How would they have done if asked to name any of the economists?

This year, however, there actually is something both interesting and heartening about the economics award.  Sometimes, economists' work is important enough to be transformative and to deserve recognition, even in a field as encrusted and often retrograde as academic economics generally is.  This year's award even has current policy implications.
 

Tuesday, October 12, 2021

Incompatible Commands in Law and in Everyday Life

 by Michael C. Dorf

A recent NY Times column by Peter Coy quotes Professor Buchanan and me in a dispute over the nature of money with Professor Rohan Grey (subsequently joined by Paul Krugman). Buchanan and I worry that if the government were to mint trillion-dollar platinum coins as a gimmick to circumvent the debt ceiling, that could undermine popular faith in money, which depends for its value on social acceptance. Grey and Krugman respond that money has value because the government requires the payment of taxes and accepts money, specifically dollars, as payment. Buchanan and I in turn respond that this fact does not suffice to make money perform its function in private transactions, as evidence from countries experiencing high inflation shows. Moreover, we have pointed out in numerous fora, minting trillion-dollar platinum coins should be at best a last resort, given that there are better ways for the President to handle a debt-ceiling crisis.

My Verdict column tomorrow will address a point of partial agreement between Professor Grey and me. As I told Mr. Coy--and as I'll expand upon in the column--we should be hesitant to endorse any view that says the People can't handle the truth. The column will explore the circumstances in which it nonetheless might make sense to promote "noble lies."

In this essay I shall put aside what are, at the end of the day, relatively minor differences between Buchanan/Dorf and Grey/Krugman over exactly how the President could best respond to congressional failure to raise the debt ceiling. After all, we agree on the more fundamental points: (1) Congress should repeal the debt ceiling; (2) if it doesn't, it should at least raise or suspend it; (3) if Republicans refuse to cooperate in the next round of debt-ceiling brinksmanship, Democrats should go it alone; and (4) if Democrats fail to do that because of either brinksmanship of their own or because of the timidity of Senators Manchin and/or Sinema, then President Biden should use whatever tools will best allow him to mitigate the damage by borrowing what is needed to make up the shortfall between authorized spending and available revenues.

Given that agreement, I want to ask whether a failure to raise, suspend, or repeal the debt ceiling really would present the President with what Professor Buchanan and I have sometimes called a "trilemma" of only unconstitutional options in which he must choose the least unconstitutional (and thus least bad) option. That inquiry will, in turn, provide an opportunity to think about incompatible commands in other contexts.

Monday, October 11, 2021

Social Media Regulation, The Limits of Originalism, and the Supreme Court's Obsession with Free Speech

 By Eric Segall

Last Friday I participated in a virtual symposium at Mercer Law School on "Social Media Platforms and Free Expression." The issues raised by government regulation of the internet are complex, and of course no one can do justice to them in a lengthy law review article, much less a blog post. But there are two points I want to highlight about this issue that came through clearly during the symposium: 1) originalism is completely unhelpful as a theory of interpretation/construction when it comes to judicial evaluation of regulatory limits on social media companies; and 2) the United States Supreme Court has an obsession with free speech values (at the expense of other important concerns) not shared by most other free countries.

Friday, October 08, 2021

The S.B. 8 Injunction and the Questionable Principle that Equity Acts Only When there is no Adequate Remedy at Law

 by Michael C. Dorf

I spent an hour yesterday on the phone with a very smart but very perplexed reporter trying to understand the various nuances of the many issues addressed by Judge Pitman in his opinion granting a preliminary injunction against Texas SB 8 in the case brought by the Department of Justice. That's completely forgivable. These issues are hard enough to explain over the course of a semester in my Federal Courts class. And at least some aspects of the SB 8 litigation involve novel applications of complex doctrines.

Here I want to focus on a fairly basic idea that permeates Judge Pitman's analysis. He repeatedly states that private litigation is inadequate to vindicate the constitutional right to abortion in Texas, given the procedural trapdoors in SB 8. Why does he keep coming back to that point? I think there are at least two reasons.

First, Judge Pitman wants to ward off a criticism--offered anticipatorily by Texas in its submissions--that his ruling licenses the federal government to sue any state any time it allegedly violates anybody's constitutional rights. By pointing to the inadequacy and de facto unavailability of other remedies, Judge Pitman preemptively rebuts the criticism that his decision will open the floodgates to litigation by the federal government against states.

Second, Judge Pitman needs to show that the United States is entitled to an equitable remedy. By long tradition, however, equitable relief--i.e., an injunction ordering a defendant to do something or refrain from doing something--is only available when there is no adequate "remedy at law"--typically defined to mean a damages lawsuit but for our purposes also an after-the-fact remedy such as the ability to raise the constitutional right to an abortion as a defense to a civil action. As Judge Pitman shows in detail, by design, SB 8 erects numerous obstacles to remedies in the ordinary course of a civil action. Thus he shows that there isn't an adequate after-the-fact remedy, and therefore prospective equitable relief is justified.

I believe that Judge Pitman's ruling is correct--which is not to say that I'm entirely confident that it will be affirmed by the Fifth Circuit and/or SCOTUS, whose jurists might take a different view from mine about the procedural issues, the underlying right to abortion, or both. In any event, I want to put all of that aside for now to focus on what everyone has long taken for granted: the traditional rule that a court should not issue an injunction where there is an adequate remedy at law. I'll argue that the rule is unjustified.

Thursday, October 07, 2021

The Platinum Coin Spit-Take and Other Debt Ceiling Lunacy

by Neil H. Buchanan

The latest reporting from the U.S. indicates that Republicans have offered to pause their debt ceiling obstructionism, which had threatened to create economic and constitutional crises on October 18, until sometime in December.  Among other things, this means that my phone might stop ringing for the next two months.  Woo hoo!
 
What is left to say?  Plenty.  Here, I want to discuss a few of the truly silliest arguments that have arisen in this latest go-round on the debt ceiling.  As the headline to this column suggests, there was one moment in particular when I actually did a spit-take, and there were certainly others that qualified as utterly puzzling if not downright goofy.  Who said legal analysis is never fun?

Wednesday, October 06, 2021

We (Buchanan and Dorf) Aren't the Ones Saying the President Should "Invoke" the Fourteenth Amendment

 by Michael C. Dorf

A recent Washington Post article explains that the Biden administration is quietly trying to figure out what to do in the event that Republicans don't end their filibuster and Democrats don't manage to increase, suspend, or repeal the debt ceiling through reconciliation before the government is unable to meet all of its legal commitments without exceeding its borrowing authority. With less than two weeks remaining until that doomsday deadline, the scenario planning is sensible, much in the way that it's sensible to have some sort of evacuation plan in the event of a nuclear war. Of course the evacuation plan will not avert the catastrophe but can only somewhat mitigate it. And of course the top (and second, third, and fourth through fiftieth) priority should be averting the catastrophe. Still, it would be imprudent not to prepare for the worst in case it occurs.

At the same time, as Prof Buchanan acknowledges in his latest Verdict column, the Biden administration has good reason not to explain publicly that, should Congress fail to act, the President will issue bonds in excess of the debt ceiling--even though, as Prof Buchanan and I have argued in multiple articles and columns over the last decade, that is in fact what he should do under such circumstances. A prior announcement of the intention to issue debt in excess of the ceiling could somewhat lessen the pressure on Congress, which in turn could increase the likelihood of congressional failure to act, which could itself carry very dire consequences.

Indeed, the fact that we can identify the least awful course of action for the President to choose should Congress not act does not mean that the situation would not be awful.  I do not think--as I have heard some critics of the Buchanan/Dorf view say I think--that issuing debt in excess of the ceiling would be "no big deal." On the contrary, as I (somewhat inarticulately) put the point to the WaPo reporter:

The view is often misattributed to me that it would be no big deal for the president to issue debt [after a debt ceiling breach]. It would be a big deal. It would be quite terrible and very likely would spook the markets. But the question is what to do if the spending and borrowing laws are inconsistent. I’ve expressed the view that the least bad thing to do under those circumstances would be to issue debt.

Having attempted to clear up any confusion about that matter, I now want to turn to another common misunderstanding of the Buchanan/Dorf view that, if push comes to shove, issuing debt in excess of the ceiling would be "the least unconstitutional option." Critics and even many commentators who are not critical of our view sometimes describe it as urging the President to invoke the Fourteenth Amendment. That formulation betrays a fundamental misunderstanding of our position that no one who actually read our work could hold. Rather, as I shall explain, it is the people on the other side of this argument who want to invoke the Fourteenth Amendment.

Tuesday, October 05, 2021

What If Pence Had Gone All In On the Coup?

by Neil H. Buchanan
 
People are still grappling with the Woodward/Costa revelations regarding former Vice President Mike Pence's possible flirtation with the completely nutty constitutional argument from Trump lawyer (and disgraced former law professor and dean) John Eastman.  Eastman, readers will recall, claimed that Pence could simply take control of the January 6 joint session of Congress and prevent Joe Biden's victory from being formalized.  Pence said no, but how close did he come to saying yes?
 
I am surprised to find myself saying that there is more to this story, but here we are.  Pence's actions are in some sense truly bizarre, and not merely because he ultimately found his moral bearings by talking with Dan Quayle.  In a lawless administration that had by that point reached its most extreme stage of degradation, why did Pence not simply do what Trump wanted and then dare the world to try to stop him?
 

Monday, October 04, 2021

The Misused Concept of "Discrimination" and why SCOTUS Should not Hear the Harvard Affirmative Action Case

 By Eric Segall

The Supreme Court term starts today and, as the whole legal world knows, the Court has already agreed to decide important abortion and gun cases. There is another dispute the Justices might hear that could have enormous consequences for private and public higher education in this country. The right-wing public interest group Students for Fair Admissions (SFFA), which has brought numerus cases challenging racial preferences in colleges and universities, has sued Harvard claiming the university discriminates on the basis of race against Asians. Two lower courts have issued hundred of pages of opinions rejecting these claims, and now SFFA is seeking Supreme Court review. The Court should deny certiorari for a number of reasons but mostly because Harvard is not engaging in "discrimination" under any meaningful sense of that term.

Harvard is a private university and thus not bound by constitutional requirements. However, a federal statute, Title VI of the Civil Rights of 1964, prohibits any organization that receives federal funds from engaging in "discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance." The Supreme Court has said that the legal standards under Title VI and those required by the Fourteenth Amendment's Equal Protection Clause are the same. Thus, a decision that Harvard is or is not violating Title VI could have enormous implications for public colleges and universities across the country.

Friday, October 01, 2021

Maybe the Vice President Decides the Presidential Election After All?

 by Michael C. Dorf

In our response to the appalling memo by John Eastman, Professor Buchanan, Professor Tribe, and I cheekily noted the temptation to run with Eastman's analysis in the next election, because doing so would license Vice President Harris to ensure a Democratic victory in the event that a Republican wins the 2024 Presidential election. Nonetheless, we explained that this conclusion is hardly the best reading of the Constitution's text and would run counter to the basic principle that no one should be a judge in their own cause: because the sitting Vice President is usually a candidate either for re-election or for the Presidency, it makes little sense to assign to the VP the unilateral power to rule on anything of great importance regarding the outcome of a Presidential election.

With a caveat I'll add at the very end of today's essay, I (speaking for myself without having consulted Professor Tribe or Professor Buchanan) will stick with that conclusion here. However, before doing so, I want to consider an argument to the contrary offered by serious scholars, not by the likes of former Professor Eastman.

In a draft article first uploaded to SSRN in March and very recently updated, Boston University Law Professors Jack Beermann and Gary Lawson argue that the VP in fact plays a very substantial role in resolving a certain kind of dispute over the Electoral College. Although I disagree with their bottom line and think that they make some errors, their article is generally thoughtful and, duly corrected, points the way towards a path through the chaos that could ensue with Trump loyalists in state legislatures.

Thursday, September 30, 2021

Democrats Can and Should Play Offense on the Debt Ceiling

by Neil H. Buchanan
 
As of a few minutes ago, it appears that there will be no government shutdown tonight, with the Senate set to approve a stopgap measure to fund the government all the way into early December.  Woo hoo!!  Seriously, that is good news, mostly because it means that the American people (and especially federal employees who are deemed "nonessential") will not be forced to suffer through another pointless and damaging shutdown.
 
Analytically, it also means that we might now be able to talk about the impending debt ceiling crisis without having to explain that shutdowns and debt defaults are very much not the same thing.  The former are bad but containable and somewhat remediable.  The latter would be catastrophic.  Given how incompetent even the most elite news reporters are in discussing these issues, however, it is always bad when the two issues become newsworthy at the same time.

I thus come to you today to talk about the debt ceiling.  How many times has that happened?  I am guessing more than a hundred, as a low-ball estimate.  In any case, today's discussion takes place against the backdrop of the Treasury Department's latest estimate that the "drop-dead date" for the debt ceiling will be October 18.
 
Why is that news, and for that matter, why is it merely an estimate?  Well, for reasons not worth going into here, even though the government officially hit the official limit on debt several weeks ago -- on the very date that the Republicans' most recent suspension of the debt ceiling ended -- we never quite know when the real, final date is that Treasury's delaying tactics will run their course.  Treasury's best current guess is October 18, but even they are not certain.  There is, however, most assuredly a date when we will all drop dead, if Congress does not act in time.

Having made the stakes clear, my purpose today is to make the case explicitly that the debt ceiling can and should be a winning political issue for the Democrats.  As usual, Republicans think that they can put the Democrats in a political bind by forcing Democrats to vote to increase the debt ceiling, and Democrats have once again decided to cower in a defensive crouch while hoping that something good will happen to make it all go away.
 
This must stop, and as I wrote just a moment ago, the good news is that Democrats can make hay out of this situation, if only they would stop whimpering.

Wednesday, September 29, 2021

Debt Ceiling Brinksmanship

 by Michael C. Dorf

As regular readers of this blog will have inferred, on alternate Wednesdays I frequently use this space to write an essay that complements my bi-weekly column on Verdict. I shall follow that practice today, albeit with a somewhat tenuous connection to my latest column. However, before doing so, I'll to take the opportunity to call attention to two other just-published works of mine that, through the vagaries of publication schedules, give the false appearance that I've been writing around the clock in the last couple of days.

First, as Professor Buchanan explained yesterday, he, Professor Tribe, and I have an op-ed in the Boston Globe responding further to John Eastman's outrageous efforts to persuade former Vice President Mike Pence to facilitate Donald Trump's defiance of the 2020 election. We wrote it together because, as I noted last week, Eastman's already-infamous memorandum linked exactly one external source: a Verdict column that the three of us wrote a year ago.

Second, earlier this week, an academic paper of mine went live in the online version of the Florida Law Review. My paper responds to an argument presented in a (substantially longer) paper in the same journal authored by Professor Frederick Mark Gedicks, in which he offers an argument against what some originalists call the "fixation thesis"--the notion that a text's meaning is fixed at the time of its authorship. Gedicks argues that this thesis depends on an inaccurate understanding of how texts and audiences construct meaning. I suggest that the differences between Gedicks and those he critiques may not be important in practice and that, in any event, there are stronger grounds for criticizing originalism. I realize that I have not just now said enough for most readers to know exactly what Gedicks or I say in our respective papers, so perhaps if the firehose of constitutional crises lets up at some point in the next few weeks, I'll devote a separate post to it.

For now, I want to say a word about my latest Verdict column as an entry point for a thought on the looming debt ceiling crisis. The column poses the question whether it is hypocritical for the Democratic-controlled New York state legislature to gerrymander the state's congressional districts, given that Democrats have been loudly decrying such moves by Republicans in other states. I argue that it is sometimes but not always hypocritical to engage in a form of conduct one is simultaneously seeking to forbid. At least where the general prohibition would serve to solve a collective action problem, I say, the charge of hypocrisy is unfounded. And even if the charge has some truth to it, that doesn't warrant unilateral disarmament.

Speaking of hypocrisy, now let's talk about Congressional Republicans' current refusal to vote to support an increase in or suspension of the debt ceiling.

Tuesday, September 28, 2021

Can We Prevent a Future Republican Congress from Stealing the Presidential Election?

Note to readers: Several hours after publication, I added what are now the fourth- and fifth-to-last paragraphs of this column, and I edited the paragraph that immediately precedes them.

 
by Neil H. Buchanan

What will happen if the Democratic nominee in 2024 wins the presidential election, both in the popular vote and in the Electoral College?  As we learned in the first week of 2021, perhaps anything could still happen.  Even setting aside a possible repeat of the domestic terrorism that we witnessed on January 6 -- most likely with greater loss of life, should it come to that -- what if Republicans claim that they have the right to set aside the results of the next election?

In an op-ed that ran in yesterday's Boston Globe, "How to prevent the legal strategy that nearly undid the last election from ending democracy," Larry Tribe, Mike Dorf and I endorse the passage of H.R.1, which would go a long way toward fixing our electoral system's most important problems.  Even so, that was not our main point, because we were mostly thinking about the crazy memo by Trump lawyer (and disgraced former legal academic) John Eastman, which cited a Verdict column that we co-wrote last September regarding the Twelfth Amendment.
 
Mike and I wrote separate columns last week mocking the Eastman memo, so there is no need to go into detail again here.  Instead, I want to explore how the Democrats today might try to prevent anything like that memo's strategy from working in 2024.  It is not an optimistic situation, to say the least, but it is at least worth working through what could happen.
 

Monday, September 27, 2021

What is Justice Breyer Doing?

 by Michael C. Dorf

Justice Breyer has been hitting the talk-show circuit lately, making two notable claims: (1) that he doesn't intend to die while on the Court; and (2) that the Supreme Court isn't political. Both claims emphasize what he wrote in his new book, The Authority of the Court and the Peril of Politics, which he has been assiduously promoting. It's not clear which claim is more dangerous.

The obvious peril from claim (1) is that Justice Breyer--like every other human being on Earth--has limited control over the timing of his passing. In an interview with the NY Times last month, Breyer at least had sufficient sense to recognize that his intention not to die while serving on the Court was ultimately a mere "hope." Speaking of which, one hopes that Justice Breyer has decided but not announced that he will retire no later than the end of the coming Term, which will ensure that a Democrat appoints his successor but only if none of the Democratic senators in states with Republican governors dies in the interim. Still, Justice Breyer's discussion of the multi-factor balancing test he will use to time his retirement raises the distinct possibility that he has no short- or medium-term plan to retire, raising the possibility that he could leave the Court (one way or another) at a point when either Republicans in the Senate might block a Democratic president's nominee or a Republican president would name his successor.

So much for claim (1). Claim (2)--that the Court isn't a political body--echos recent statements by Justices Thomas and Barrett, as well as the sort of pablum that nominees to the Court spoon to the Senate and the public at their confirmation hearings. Most famously, Chief Justice Roberts, as a nominee, described the job of judging as simply calling balls and strikes. More prosaically, Justice Barrett recently honored Mitch McConnell by declaring that she and her colleagues cleared the lowest of all possible bars: that they aren't "partisan hacks." Justice Breyer's repetition of a version of this talking point risks confusing the public because it trades on a slippage among different meanings of "political."

Friday, September 24, 2021

The End of a Long Week

by Neil H. Buchanan


Dear Dorf on Law readers: This has been a very unusual week, starting with my first international travel of the COVID era, resulting in a 5-hour time difference, jet lag, and the associated disorientation.

Since arriving in Cambridge, I’ve published one Dorf on Law piece, an unscheduled Verdict column, and a guest op-ed in The Hill.

And for those who just can’t get enough Buchanan, an article on the debt ceiling in Congressional Quarterly’s Roll Call includes some of my choice words.

All of which is a long and self-important way of saying that I have no additional content for Dorf on Law today.  It’s time for some warm, flat beer.

Have a great weekend!

Thursday, September 23, 2021

An Arbitrary Line's Arbitrariness is a Feature, Not a Bug (Mississippi Abortion Case Edition)

 by Michael C. Dorf

On December 1, the Supreme Court will hear oral argument in Dobbs v. Jackson Women's Health Organization, in which Mississippi asks for either an outright overruling or serious curtailing of the cases recognizing a constitutional right to abortion. On Monday of this week, amicus briefs in support of respondent were due. Just as it received a boatload of amicus briefs decrying abortion in July, so on Monday the Court received a whole lot of briefs urging the justices to affirm the lower court decision invalidating Mississippi's ban on most abortions after (what it defines as) 15 weeks' gestational age. Today I'll take as my point of departure the amicus brief with which I'm most familiar--one filed on behalf of me and 12 other constitutional law scholars (Lee Bollinger, Erwin Chemerinsky, Sherry Colb, Dan Farber, Joanna Grossman, Leah Litman, Martha Minow, Jane Schacter, Suzanna Sherry, Geof Stone, David Strauss, and Larry Tribe).

The core of our argument goes like this: Mississippi is plainly wrong in its contention that the abortion right has no connection to other rights the Court has recognized, and therefore repudiation of the right on that basis would jeopardize all unenumerated constitutional rights, including to marriage, against sterilization, and against forced abortions. Likewise, the Court's backup argument that the viability line should be abandoned as unprincipled and unworkable is wrong; there are sound reasons in principle for the line as an original matter, which is further supported by stare decisis.

Although we argue forcefully that viability is not an arbitrary line, here I want to argue that even if it were arbitrary, that would not be a reason to abandon it. Our brief doesn't make this argument exactly, but it gestures in the same direction when we say this:

Mississippi’s unfounded complaints about arbitrariness of the viability line ring hollow considering the lawlessness and confusion that would follow overturning Roe and Casey, as the State implores this Court to do. Such a reversal would lead to inconsistent directives and would leave women and indeed, the general public, in the dark about the state of the law . . . .

Now I'll elaborate.

Tuesday, September 21, 2021

Trump's Flailing Coup Attempts and the Fire Hose of Constitutional Disasters

by Neil H. Buchanan

It appears that I will be part of an odd footnote to an odd footnote to history.  As Professor Dorf described in yesterday's column here, one of Donald Trump's legion of Giuliani-like lawyers apparently wrote a memo shortly before the January 6 insurrection, detailing a legal strategy that (in Trumpists' minds, anyway) would have allowed them to keep Trump in office after January 20.
 
The one and only citation in that memo was to a September 20, 2020 Verdict column that I co-authored with Professors Dorf and Laurence Tribe, meaning that our names are embedded in a seditious legal fiction that will surely end up in the national archives.  Yay us?  Posterity will never forget!

Professor Dorf has already explained the lowlights and eviscerated the pathetic legal analysis that Trump's hack (and now-former law professor) cooked up, so there is no need to get back into that here.  Instead, I want to explain the one thing that the memo's author managed to get right about our column (in which we debunked a myth about the Twelfth Amendment), even though his citation to it was purely for the purpose of saying, "Hey guys, as a bonus, we can poke Larry Tribe with a sharp stick!"

After exploring why everyone seems to misunderstand the Twelfth Amendment, I will broaden the discussion to note in wonderment the sheer volume of previously unexplored constitutional gaps that have been exposed by the Trump/Republican radicalization of the past several years.  We now find ourselves drenched in increasingly insane constitutional and legal absurdities.
 

Monday, September 20, 2021

How An Essay by Neil Buchanan, Laurence Tribe, and Me Figured in Trump's Effort to Destroy the Republic

by Michael C. Dorf

You really can't make this stuff up. Here's the latest revelation from the forthcoming Peril by Bob Woodward and Robert Costa: In the days leading up to January 6, Donald Trump enlisted now-former-Chapman-law-professor John Eastman to try to persuade Mike Pence that as Vice President he had the unilateral authority to throw out the electoral votes of enough states to give Trump the lead and then declare him the winner of the election. CNN reports that Woodward and Costa retell details of a January 4 Oval Office meeting in which Trump said to Pence: "You really need to listen to John [Eastman]. He's a respected constitutional scholar. Hear him out." Fortunately, Pence did not listen to Eastman, instead receiving sound and sober advice from his fellow Hoosier VP Dan Quayle, who, for all his shortcomings, is apparently a hero of the American republic.

Meanwhile, CNN has also released a two-page memo supposedly written by Eastman and purportedly shopped by the Trumpistas to Pence. Titled "January 6 Scenario," the memo contains a number of fantastic assertions, including the contention that Pence should announce the existence of "ongoing disputes" in seven states, despite the fact that not a single state sent more than one official slate of electors--even though a minority of individual Trump-loyal state legislators in various states purported to certify Trump's electors. I would go into more detail about the memo's absurd contentions, but it's short enough that readers can examine it themselves.

I'll focus the balance of this brief essay on the one and only external source cited in the memo (purportedly) from Eastman: a September 30, 2020 essay on Verdict by Professor Neil Buchanan, Professor Laurence Tribe, and me. Although the essay lists us authors alphabetically, and thus has Professor Tribe last, the memo refers to it as the work of Tribe alone, no doubt because Professor Tribe is a bĂȘte noire for the right, the epitome of a liberal Democrat. Eastman (if he indeed authored the memo, which lists no author) probably thought that by citing Tribe he would hoist Joe Biden, Nancy Pelosi, and Chuck Schumer by their own petards because, you know, no Democrat could possibly take a different position from Tribe on anything. That's absurd, of course, but no more absurd than the use the memo purports to make of our essay.

Civility and Discourse in Legal Education and Social Media

 By Eric Segall

Last week I debated affirmative action with UCLA Law Professor Richard Sander in front of GSU students (virtually) and was asked by my faculty, along with Professor Anthony Kreis, to prepare a presentation on the pros and cons of twitter for furthering professional development. These events caused me to reflect on when and where civility is important and how social media fits into that question. 

In an excellent and thought-provoking post on this blog last Monday, Professor Sherry Colb explained what happens when people abuse the civility norm or invoke it hypocritically.  I'll have a little more to say about her chief example below, but for the most part I want to talk in this post about the value of the norm when it's not being abused. I have come to the conclusions that civility is almost always essential in public discourse, that finding common ground with folks you disagree with makes for better, more high minded discussions and debates, and that it is quite difficult to achieve civility and common ground on social media, which is a major problem inside and outside of legal education.

Friday, September 17, 2021

Speech and Role Morality

 by Michael C. Dorf

On Monday, Professor Colb reported on a recent discussion hosted by Cornell Law School featuring Professors Cornel West and Robbie George. In answering some comments by one reader, I offered some further support for the main essay's criticism of the analogy Professor George drew between private attorney general statutes in the environmental and other contexts, on one hand, and the deputizing of private parties by SB8, the Texas abortion statute. In a future essay, I might elaborate further on my somewhat cryptic comments and also dive deeper into the legitimate and illegitimate grounds that lawmakers have for enlisting private parties in enforcing public (and other) obligations. In today's essay, however, I want to turn to another issue that arose during the course of the discussion, which ended up as a missed opportunity.

My colleague Sheri Johnson as moderator asked the panelists--who celebrated one another as icons of intellectual freedom--whether they thought Harvard had acted improperly when it failed to renew Ronald Sullivan as Head of Winthrop House (one of the undergraduate residential colleges) in light of complaints by students, especially women, about Sullivan's work at the time as a criminal defense lawyer representing Harvey Weinstein. Professors West and George both condemned Harvard College for the action, while praising Harvard Law School, where Sullivan is a clinical law professor, for subjecting him to no penalty.

I agree that the law school had no ground for subjecting Professor Sullivan to any sort of penalty, but despite Professor George's introductory remarks about the importance of understanding the position of those with whom you disagree, I was struck his failure and the failure of Professor West to grasp, much less persuasively refute the objection.

Thursday, September 16, 2021

That Sense of Relief from California’s Recall Comes Five Years Too Late

[Note to readers: Today's Verdict column, "Why Do We Continue to Use Loaded Words Even When We Know that They Have No Meaning?" represents my latest attempt to channel George Orwell.  I always fall short, of course, but I hope that the column might nonetheless be of some interest.  In any event, the column below addresses a completely different topic.]
 
 
by Neil H. Buchanan
 
Earlier this month, I again found myself describing various extremes to which the wholly autocratic Republican Party might yet resort.  In that column, the I-can't-believe-it's-even-possible-to-be-saying-this possibility du jour was the creation of new U.S. states and the elimination of existing states, in "what would amount to a gerrymandering of the Senate."
 
Was that scenario "out there"?  Sure, but so was the January 6 insurrection -- not to mention Republicans' subsequent efforts to ignore, justify, and shift blame for that horrible day.  I ended that column with this:
Maybe it will not be worth it for Republicans to carry out all of the crazy ideas that I have laid out here.  But these extremists certainly do not lack energy.  They are, for example, trying to recall not just California's governor but dozens of other Democrats who won legitimate elections.  Why not pull out all the stops?
I have not checked whether any of the other sixty recalls were successful, but obviously the big news this week is that the main event -- the plan to take out Governor Gavin Newsom and replace him with a talk show host who is at least as bad as Donald Trump -- failed spectacularly.  As in an epic blowout, almost a 2-to-1 win, the kind of thing that we do not expect to see even in a deep blue state.  (Or in red states, either.  Texas, for all of its longstanding voter suppression, only went for Trump by five and a half points last year.)

Is it time to celebrate?  Yes, up to a point.  Here, I will offer a few observations on where we are now, in light of what happened in California.  Unsurprisingly, most of the news is still bad, especially compared to what could have happened in earlier elections.
 

Wednesday, September 15, 2021

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. 

Tuesday, September 14, 2021

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?

Monday, September 13, 2021

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?

Friday, September 10, 2021

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.

Thursday, September 09, 2021

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.

Wednesday, September 08, 2021

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.
 

Tuesday, September 07, 2021

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.

Friday, September 03, 2021

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.

Thursday, September 02, 2021

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.

Wednesday, September 01, 2021

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?

Tuesday, August 31, 2021

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.

Monday, August 30, 2021

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.

Friday, August 27, 2021

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?

Thursday, August 26, 2021

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.

Wednesday, August 25, 2021

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.

Tuesday, August 24, 2021

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.