Friday, August 12, 2022

The Search Warrant Freakout is Bad for Everyone, Including Republicans

by Neil H. Buchanan
Republican leaders continue to rally around Donald Trump and his absurd claims that the FBI's actions pursuant to a valid search warrant are somehow evidence of a conspiracy against the Florida Man.  His state's junior senator has described law enforcement officers' actions as Gestapo-like, and his state's governor is making noises about "the weaponization of federal agencies against the Regime’s political opponents," adding that the US is now a "banana republic."

In my Dorf on Law column two days ago, I described such reactions by Republicans as the on-the-ground manifestation of the end of constitutional democracy.  The rule of law is all about guaranteeing acceptable outcomes by providing due process and neutral adjudication, but Republicans have now made it abundantly clear that this is all about giving their friends free passes and their opponents the shaft.

In particular, I noted that some of the most widely accepted tropes in politics are at best half-truths.  For instance, despite their decades of tireless anti-tax rhetoric, Republicans are not in fact against taxes.  They are only against taxing rich people.  Notably, Republicans' hyperventilation about the Mar-a-Lago search included claims that the new Inflation Reduction Act's restoration of some funding to the IRS will result in hiring 87,000 agents to harass typical Americans, when in fact the IRS will soon be able to replace retiring employees and reverse some staffing shortfalls that have made it possible for the richest Americans to get away with the tax equivalent of murder.  The problem, again, is not the taxes but who is paying them.

My question in this short column, however, is why the Republicans are bothering with any of this.  What is the point of making a stink about a non-issue and acting as if the country has been taken over by jack-booted thugs?  Yes, the short answer is that they must think that there is some political advantage to be had in doing so, but as so often happens, I think they are missing an opportunity.  They are often good at being bad, but surprisingly often they are bad at being bad.  Why do this?

Thursday, August 11, 2022

Mets or Yankees? A Very Self-Indulgent Personal Reflection on the Nature of Loyalty

by Michael C. Dorf

I begin with an apology to my readers who are not sports fans or to those who are sports fans but, like Prof Segall, think baseball unbearably boring. I don't entirely disagree with Prof Segall. My first love (both to play and to watch) was and remains basketball, but today I'm going to write about baseball--and some broader themes with which it connects. I'm the Dorf in Dorf on Law; it says right there at the top that we cover law, politics, economics, and more. Today I want the distraction of baseball. And as I hope becomes clear, I'm using baseball at least partly as an entry point to talk about free will, human relations, and . . . well . . . more.

So . . . the Yankees and Mets are both having outstanding seasons. Although the Yankees started stronger, the smart money is on the Mets to finish with the better record and to fare better in the postseason, now that they have two of the best active pitchers in the majors--Max Scherzer and Jacob deGrom--anchoring their staff. The Dodgers are currently the best team in baseball, but two aces gives the Mets a better chance to get past them than the Yankees' chances of besting their recent nemesis Houston. Indeed, although the Yankees were having a truly historic season until the All Star break, their poor record since then suggests they might lose a first-round playoff series.

Still, the Yankees' best player--outfielder Aaron Judge--is putting up MVP numbers and, absent injury or a prolonged slump, will be the first player to hit 60 or more home runs in a season since Barry Bonds hit an astounding 73 home runs in the 2001 season. Bonds's record is tainted, as are the single-season marks of Mark McGwire and Sammy Sosa. All of them were were juicing. Really, no one other than Yankees Babe Ruth (60 in 1927) and Roger Maris (61 in 1961) has had 60 or more untainted home runs in a season. Purists might say that Ruth still holds the record, as he hit his 60 in a 154-game season. Maris broke the record in the first year of the 162-game season. Still, 60 has been rightly treated as the magic number even in the 162-game era. Meanwhile, the steroids era thus tends to obscure the closest thing we've seen to the feat in recent years--then-Marlin/now-Yankee Giancarlo Stanton's 59 in 2017.

Wednesday, August 10, 2022

What the End of Democracy Looks Like in Real Life

by Neil H. Buchanan

During the more than seven years that I have been warning about the inevitable end of constitutional democracy in the United States, I have almost exclusively focused on the legal mechanics of how this process will play out.  Being a law professor, I am inexorably drawn to "on paper" explanations, that is, laying out the procedural mechanisms that Republicans are using to turn the US into a one-party state.

Thus, I have pointed out the various ways in which future presidential elections can be hijacked via strategies that tax lawyers would sardonically describe (in a different context) as "perfectly legal" -- that is, gambits that are apparently within the letter of the law but are still terrible outcomes.  The Electoral College exists; the Constitution gives state governments the power to choose electors in utterly non-democratic ways; the Supreme Court has made it clear that Republicans can suppress votes and gerrymander at will; the Court might go even further and endorse the so-called Independent State Legislature theory to cut Democratic governors out of the process; and so on.

Earlier this summer, I pointed out that those mechanisms are ultimately put into operation by people, and we need to understand why so many people have become willing to subvert our republican form of government to maintain power at all costs.  These non-mechanical considerations are important in understanding the on-the-ground reality in which all of this will play out.  After all, even if Republicans could pull off their autocratic coup bloodlessly (based on the "on paper" possibilities that I have described), they are now encouraging a burn-it-all-down attitude.  Will they bother to keep it tidy?  Even if they wanted to, could they at this point stop it from becoming utter bloody chaos?

Tuesday, August 09, 2022

Justice Clarence Thomas' America: Straight, Color-Blind, Religious, and Heavily Armed

 By Eric Segall

Justice Clarence Thomas has been on the Supreme Court fourteen years longer than any other current Justice. If Thomas serves six more years, which is highly likely, he will be the longest serving Justice in American history. His law clerks have become judges and elected officials all over the United States. Let's take a look at his constitutional vision for the United States of  America.

One caveat. The other conservatives on the Court agree with much of what I discuss below. But none of them (at least so far) agrees with all the cases and legal rules that make up Justice Thomas' jurisprudence and none of them agrees (at least openly) with his radical views on precedent, which I leave for another day.

Monday, August 08, 2022

The DCCC's Dangerous and Dirty Midterms Gamble

by Michael C. Dorf

As most of my readers are probably aware, in the midterm primary elections, the Democratic Congressional Campaign Committee (DCCC) has been funding ads labeling various Trump-aligned Republicans as "too conservative" for the constituents in purple districts in which they're running, knowing and intending that Republican primary voters would be attracted by the ads' highlighting of the candidate's association with Trump. The DCCC calculates that a Democrat has a better chance of defeating a more extreme right-wing candidate than of defeating a more traditional Republican.

The most prominent example of this strategy in the current cycle was support for ultimately successful challenger John Gibbs to displace incumbent Michigan Republican Peter Meijer--who was one of the ten Republican House members with the courage and integrity to vote to impeach Trump after the January 6 insurrection. Meijer and other principled Republicans are understandably outraged. After recording a few caveats, I'll explain why I mostly agree with them.

Friday, August 05, 2022

Please Stop Talking About the Equal Rights Amendment

 by Sherry F. Colb

I have lately heard a tremendous amount of commentary about how, if we were to recognize the Equal Rights Amendment (ERA) as law, women could wrest their right to control their most intimate bodily autonomy from the creeps that currently dominate the Supreme Court. One commentator in particular explained in an LA Times op-ed and then again on the NPR podcast/radio show On The Media that the reason the ERA would be so effective in protecting the right to abortion is that the Court had, up until this most recent benighted Term, identified the right as one of "privacy." Privacy, she explained, does not expressly make an appearance in the Constitution. But the ERA would "explicitly" protect women's entitlement to equality with men. Therefore, she said, President Biden could instruct the Archivist of the United States to carry out his statutory responsibility to certify the ERA's ratification, and that would "cement[]" and "finaliz[e]" the right to abortion in a way that "privacy" could not.

Perhaps I am missing something, so I acknowledge that there might be something to this argument that I do not see. But from where I stand, I think the argument is so completely lacking in substance that I am rather stunned that a major American newspaper and an excellent show like On The Media would have given such nonsense a platform. The one correct statement by the commentator was that lacking an express enumeration of a constitutional right renders the right vulnerable to misogynists who choose to turn to folks like Sir Matthew Hale from the seventeenth century for guidance on women's status in the twenty-first century. If the ERA said explicitly that women (and trans men and nonbinary people) have a right against forced pregnancy and birth, then the ERA would be the perfect response to the 70-page sick bag that Sam Alito (SA) just handed to half the population. But it does not. The ERA says nothing explicit about abortion; it speaks only about equality.

Thursday, August 04, 2022

Will Technology Make Workers Obsolete or Merely More Miserable?

by Neil H. Buchanan

There has been a fair amount of chatter over the last several years to the effect that technology will soon make workers obsolete.  This has been a recurring theme in capitalist countries ever since there has been capitalism, with Luddites being the infamous touchstone for anti-automation extremism, but there is always a new audience willing to believe that the latest technological advances will truly, finally, and inevitably bring about the end of labor as we know it.

That point of view received a big boost in the 2019-20 presidential primary season, when tech dilettante Andrew Yang decided that he was qualified to be the leader of the free world.  Almost everyone disagreed, but because of his wealth and the inclusiveness of the early primary season (a process so open that a self-help nutjob was given a respectful audience in Democratic debates), Yang was able to run a one-note campaign based on the idea that human beings will soon be left behind by the relentless forces of capitalism.

I happen to support Yang's major (OK, his only) policy idea, which is a guaranteed "universal basic income" (UBI), even though his path to that idea was completely wrong.  Lately, of course, Yang has regained a bit of the spotlight, this time promoting an earnest and empty idea with two C-list (at best) former politicians (Trump-defying Republicans Christie Whitman and David Jolly), trying gamely to promote a vacuous concept for a new Third Party.  That idea is so vacuous, in fact, that it has aptly been called "political vaporware" and "a party of the total absence of ideas."  Basically, Yang has now joined the bothsidesists with a vengeance.

But good ideas (UBI, not Yang's silly new political party) should not be disparaged merely because unserious people promote them.  Unsurprisingly, serious people are thinking about this as well.  Here, I will explain why it is wrong to think that capitalism will make people obsolete, but I will make clear that that is for even more cynical reasons than the understandably worried people to whom I am responding might imagine.

Wednesday, August 03, 2022

Will Fixing the Electoral Count Act Avert Disaster?

by Neil H. Buchanan
A proposed bill to reform the Electoral Count Act (ECA) is a response to a few of the many problems with the US presidential election system.  Although the ECA has been a disaster in waiting since its passage in 1887, it was only in the 2020 election that it became clear just how vague and ultimately dangerous that law is.  After all, Donald Trump's lawyer John Eastman argued that parts of the ECA are unconstitutional and that the other parts could be used to justify the pre-violence part of the Trumpists' planned coup.

Fortunately, that coup attempt failed -- barely -- and the ECA's many holes did not result in a constitutional crisis and a collapse of the American experiment.  Having only narrowly avoided that fate, people of good will are now trying to clarify and tighten the statutory language to make it even more clear how the certifying, challenging, and counting of electoral votes must proceed.  Eastman was completely wrong, even under the terms of the current ECA, but clarifying the governing law of elections is surely a good idea.
The proposed replacement, the Electoral Count Reform Act (ECRA), is being debated and potentially improved as Congress considers how to proceed.  Both Professor Dorf (here) and I (here) have argued that the ECRA has much to commend it, but we have also suggested that it has flaws (and that it might not even pass).  On balance, I ended up arguing (here) that as currently written, it might actually make matters worse.
Happily, The Washington Post's op-ed page on Monday featured a new piece by Laurence Tribe, Erwin Chemerinsky, and Dennis Aftergut, "The Electoral Count Act must be fixed. A new proposal doesn’t go far enough." in which they point the way toward making the new law worth passing.

Tribe, Chemerinsky, and Aftergut (TCA) offer a truly excellent, constructive critique of ECRA.  After summarizing their points, I will consider whether or how even a nearly-perfect ECRA could avert disaster.  It turns out that, as important as it is to replace the ECA, it is surprisingly difficult to sketch out a scenario in which any of it will matter in a future election.  That does not make it a worthless exercise, but it should refocus efforts on where the true vulnerabilities lie in our fragile and threatened constitutional democracy.

Tuesday, August 02, 2022

Of Dobbs, Constitutional Text, and The Rule of Law or the Rule of People?

 By Eric Segall

In the iconic case Marbury v. Madison, decided not too long after the Founding, Chief Justice John Marshall wrote the following important paragraph, which seems unassailable as a normative matter:

The government of the United States has been emphatically termed a government of laws, and not of men (sic, people). It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

Marshall was referring to the decision of President Thomas Jefferson and Secretary of State James Madison to withhold the signed, sealed but not-yet-delivered commission making William Marbury a justice of the peace, but I hope we'd all agree that whatever branch of government is at issue, being a government of laws not people is an excellent aspiration. Of all our institutions, I expect many would think this ideal is especially salient for the United States Supreme Court. Let's see.

Monday, August 01, 2022

Liars in Robes

by Sherry F. Colb

Much to the surprise of many observers, the House of Representatives recently voted to pass H.R. 8404, the Respect for Marriage Act (RFMA). Because of the Orwellian doublespeak to which we have all become accustomed, I hasten to add that this bill would give federal protection (via mandatory interstate recognition) to same-sex marriage (SSM), accomplishing the opposite of the shameful but similarly titled Defense of Marriage Act (DOMA) that Bill Clinton signed in 1996. The passage of RFMA in the House is significant for the safety it would extend to LGBTQ+ Americans in the wake of Sam Alito's (SA's) repugnant, reactionary, and religious opinion in Dobbs v. Jackson Women's Health Org. But RFMA has a subtext that we should not miss in our rush to celebrate the substance of what we hope will become the law.

The House passage of RFMA signifies that a majority of the House concluded that SA and at least three of his partners in crime (Gorsuch, Kavanaugh, and Barrett) are liars.