Friday, March 24, 2023

Fake Masculinity, Real Racism, or Both

by Neil H. Buchanan

Is the current version of the conservative movement all about fake masculinity or real racism?  Obviously, there is plenty of evidence that both problems exist in abundance, and there is no reason not to answer with a rhetorical question: Why not both?  Indeed, the two would seem to reinforce each other.  Even so, it is worth trying to think about them separately, which I will do here.  The answer either way will be ugly, so there can be no happy ending to today's column.

Thursday, March 23, 2023

Macho Blowhards and a Certain Political Movement

by Neil H. Buchanan

Earlier this month, a rather amusing exchange occurred during a committee hearing in the US Senate.  This entertaining video clip is only four and a half minutes long and is definitely worth viewing, but I offer here a transcript of the key exchange to set the stage for today's column:

Senator Markwayne Mullin: Union pipe-fitters decided they were gonna come after us.  They would show up at my house!  They'd be leaning up against my trucks.  [Sneering]  I'm not afraid of a physical confrontation.  Fact, sometimes I look forward to it.  When that didn't work, they started picketing our job sites, saying 'Shame on Mullin.'  'Shame on Mullin'!  For what?  For what?  Because we were payin' higher wages?  Because we had better benefits, and we wasn't requirin' them to pay your guys's exhorbitant salaries?  You talk about CEO's that're makin' all this money?  And what do you make, Mr. O'Brien?

[Mullin then talks over the witness and refuses to let him answer, accusing him of, among other things, "sucking the paycheck out of somebody else."]

Teamsters President Sean O'Brien: You're out of line, man.

Mullin: Don't tell me I'm out of line.  [crosstalk]  

O'Brien: Oh, you're a tough guy, yeah.  You want to tell me to shut my mouth?  Yeah.  [smirks]  Tough guy, 'I'm not afraid of physical ...'  [scoffs]

Now, the least important thing to note here is that the former businessman seems genuinely exercised about the idea that unions picketed ... job sites.  What?  But the senator's point was clearly not to say anything coherent but appear to be, as O'Brien put it with unconcealed contempt, a tough guy.  A multi-multimillionaire Republican senator, sitting in shirtsleeves to show what a regular not-woke MAGA man he is, yelling in an Oklahoma twang while a union leader retorts in a working-class Boston accent.  Who is tougher?

That is gooooood theater!  And it is hardly an isolated incident.

Wednesday, March 22, 2023

Free Speech on Campus: A Constitutional Void

By Eric Segall

It is rare that a week goes by without some major public controversy involving free speech at a public or private university. In Florida, Governor Ron DeSantis wants to essentially purge public universities of honest discussions of race, diversity, gender, LGBTQ+ issues, and America's past. So far, courts have said no

At Stanford last week, Judge Kyle Duncan was greeted with much hostility, which he seemed to invite, resulting in videos showing him calling Stanford Law students "idiots" and then running off to cry to the media about how he was treated. This incident, widely reported on, has many causes and there's plenty of blame on all sides.

Both public and private universities have controversial hate speech codes that many scholars and judges think are either unconstitutional or bad policy because they go beyond punishing true threats or harassment, while others believe such codes are essential to protect traditionally marginalized groups. 

Off campus online speech by university students has haunted the lower courts, which have reached all kinds of varying and conflicting results. Swirling around all these controversies are under-theorized free speech arguments leading to great constitutional uncertainty.

I have strong free-speech policy views about how colleges and universities should be operated, but this is a blog post about what the first amendment requires, not what policies are best. Even so, my goal is not to present a coherent, worked-out theory of the first amendment on campus. Instead, I want to ask a few hard questions and suggest that the label "academic freedom" does little to clarify many of these disputes. At the end of the day, much more work needs to be done by lawyers, scholars, university officials, and judges to bring much needed coherence to this area of the law. 

Tuesday, March 21, 2023

How Plausible is the Melania Defense?

 by Michael C. Dorf

Despite Donald Trump's incendiary announcement that he will be indicted and arrested today, there is no good reason to think that he has access to any inside information. After all, we are talking about a man who, as President, typically did not read classified briefings prepared specifically for him but spent hours watching cable news. He does not base his pronouncements on reliable sources, much less facts.

Nonetheless, there is good reason to think that Manhattan District Attorney Alvin Bragg's office will secure a grand jury indictment of Trump in the coming days or weeks, even if not in the next few hours. Accordingly, in today's essay I shall preview what I'll somewhat inaccurately call the "Melania defense."

Trump is likely to be charged with falsifying business records by recording as legal fees his reimbursements to fixer Michael Cohen for payments Cohen made to Stormy Daniels as hush money. As Professors Ryan Goodman and Andrew Weissmann note today in a NY Times op-ed, that mischaracterization made Trump's tax documents and campaign filings fraudulent. However, merely falsifying a business record is a misdemeanor in New York. Trump will not be arrested for a misdemeanor. To elevate second-degree/misdemeanor business record falsification to a first-degree/felony charge requires that the DA prove that Trump's "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof."

Presumably, the grand jury will indict Trump, if it does, on the ground that he falsely listed the hush-money reimbursement to Cohen as legal fees to conceal the commission of the "[]other crime[s]" to which Cohen pleaded guilty and for which he served time in prison.

As some of Trump's defenders (and even some anti-Trump observers) have noted, there is an obvious line of defense against the felony charge. Trump's lawyers can admit that he deliberately mischaracterized the payments to Cohen as legal fees--and thus that he committed a misdemeanor--but that his intention in doing so was not to cover up any other crimes but to cover up the fact that he had an affair. In this narrative, Trump's intent was that of any cheating husband: to prevent his spouse from learning of his extra-marital sexual relationship.

I hope the term "Melania defense" catches on, even though it's not exactly accurate. If Trump's intention was to prevent his wife from learning of his affair, then that negates the government's case against him. "I was intending to deceive my wife" is not an affirmative defense. That means, among other things, that the DA will have the burden of proving beyond a reasonable doubt that Trump's intent was to cover up another crime.

Monday, March 20, 2023

Raccoon Dogs, Pigs, Birds, Most of Your Diet, and Other Vectors of Zoonotic Disease

by Michael C. Dorf

As Republican politicians continue to push the improbable (but not completely ruled out by the evidence) hypothesis that the COVID-19 pandemic originated in a lab leak (or, in the fever dreams of their conspiracy theorists, as a bioweapon), new evidence has emerged suggesting a specific species as the more likely zoonotic origin: DNA from the (illegal) Wuhan live animal market that has been the focus of the most attention points to raccoon dogs as a possible source. I say "possible" because the evidence is raccoon dog DNA and COVID-19 in samples taken from the live market very early in the pandemic; it's possible that the raccoon dogs were infected after COVID-19 had already begun to spread from some other source, but given that other coronaviruses can spread from raccoon dogs to humans, the raccoon dog hypothesis merited a recent story in The NY Times.

Let's begin with the obvious: raccoon dogs (which are closely related to foxes, wolves, and dogs but not raccoons) are adorable (although definitely not suitable as pets).

At this point in our tale, I expect readers to feel outrage at the fact that some people in China eat raccoon dogs and other cute animals, including the kinds of dogs many people keep as pets. That is outrageous on moral grounds--slaughtering and eating a raccoon dog or a Labrador retriever feels only a step removed from cannibalism. It is also alarming on public health grounds, given the tendency of deadly diseases to jump from the particular sorts of wild animals that some people in China regard as delicacies to humans.

So be outraged. But try not to be selectively outraged.

Friday, March 17, 2023

Childish Manliness and the Anti-Woke Macho Panic

by Neil H. Buchanan

One of the formative moments of my adolescence was when I first heard the (probably apocryphal) story about a commoner who was invited to a special dinner with the queen.  As the story goes, when a finger bowl was placed in front of the nervous guest, he thought it was for drinking and quickly gulped downed the water.  While the assembled royals sneered and tittered, the queen calmly picked up her finger bowl and drank it as well.

That story is so well known that there are endless variations in its telling, but that is precisely because it makes such an important point -- a point that is reflected in other life lessons and aphorisms, including (the needlessly gendered) "a man never stands so tall as when he stoops to help a child," or simply "Don't be a jerk!"  The idea is that growing up and being good involves learning to be part of something larger and caring about -- or at least noticing and minimally respecting -- the humanity of others.

The thoughtful queen in the story understood that the kind, truly noble thing to do was to make her guest feel comfortable, rather than saying, "Oh, you rube!  Here is what it means to be upper crust."  Whoever it was that told me that story in my teen years then shared the lesson to be learned: "There's class, and then there's class!"  Given that I was growing up in the Baby Boom-era of what we would now call toxic masculinity -- a two-word phrase that serves as proof that a well chosen label can be powerfully clarifying -- that was a transformative moment.

Arguably, the US political divide in 2023 amounts to a sorting of people into two camps: those who would have laughed at the queen's guest, and those who would have applauded the queen's kindness.  Kindness is not in fashion on the political right.  More than that, maturity has become a liability.  These people are now all about finding vulnerable groups and kicking down at them, but what is in some sense more fascinating is their panicky refusal even to consider accepting limits in their lives.  In a way, the modern (and I use that term in only one of its meanings) conservative movement's slogan is: "You can't tell me what to do!"

Thursday, March 16, 2023

Is this Blog's Name Problematic? An Agreeably Dissenting View

by Neil H. Buchanan

Does it matter whether the people engaged in something potentially offensive know that they are running the risk of causing offense?  Of course it does, but how completely does lack of intent or knowledge get a person off the hook?  There is no general answer to that question, but Professor Dorf's column yesterday -- "Jack Daniel's, Confusion, and the Problematic Origin Story of this Blog's Name" -- presents an opportunity to explore some nuances through an example in which we have access to an unusually large amount of the relevant facts.

The fundamental issue is whether the punny inspiration for this blog's name -- a series of videos in the 1980's by the comedian Tim Conway, the first of which was titled "Dorf on Golf" -- is potentially offensive enough to suggest that we should change that name.  (Although he only mentions the one video, I should note that there was more than one, with my limited memory dredging up only "Dorf on Tennis" but with the strong sense that there were others.  Yes, I could look it up online.  I didn't.)

Professor Dorf drew what I think is the right conclusion: "I gave the question some thought but elected to keep the name."  My disagreement here is with his analysis of the question of whether there is anything necessarily offensive about the name in the first place.  In Professor Dorf's telling, Conway's original "Dorf on Golf" comedy video can reasonably be described as an effort to get laughs at the expense of people with dwarfism.  Is that accurate?

Before getting there, let us situate the discussion within the culture wars of 2023.  Why?  Because that is where everything is now situated, thanks to Republicans' decision to do nothing but crank up the cultural grievance machine.  It is exhausting, but here we are.

Wednesday, March 15, 2023

Jack Daniel's, Confusion, and the Problematic Origin Story of this Blog's Name

 by Michael C. Dorf

My latest Verdict column previews next week's Supreme Court oral argument in Jack Daniel's Properties v. VIP Products. For those of us who teach and generally write about constitutional law--and thus spend a whole lot of our professional time gritting our teeth at the latest claim by Messrs. Thomas, Alito, et al that the original (and supposedly widely shared) understanding of some vague constitutional term just happens to align perfectly with the Republican Party's ideological agenda in the 21st century--the Jack Daniel's case is a welcome diversion.

At a minimum, the case illustrates that the people who operate Jack Daniel's and/or its corporate overlord Brown-Forman are a bunch of stuffed shirts. Our first clue might have been that the company insists that its booze is "Tennessee whiskey" rather than bourbon. But if there were any doubt, the case now before SCOTUS shows that, despite the company's protestations in its brief, it has no sense of humor. Jack Daniel's sued VIP Products claiming that the latter's poop-themed dog toy parodying a bottle of Jack infringes its trademark. And to be clear, "Bad Spaniels The Old No. 2" is bottle-shaped but not a bottle, contains no whiskey or any other liquid, and, again, is a dog toy.

Tuesday, March 14, 2023

Constitutional Law, Constitutional Litigation, and the Truth About Constitutional Text

By Eric Segall

There are many parts of the United States Constitution that seem unfair, outdated, and have terrible consequences. Article I requires that that there be two senators from every state regardless of population, which means North Dakota and California have the same power in the Senate even though California has 39 million people and North Dakota has roughly 800,000 people. Many Americans would prefer to vote for the President directly rather than through the constitutionally required electoral college. Article V makes amending the Constitution almost impossible--surely a bizarre feature for a document written centuries ago by and for white propertied males alone. And even the prescribed date of January 20th for presidential inauguration in the 20th Amendment is problematic. The two-and-a-half-month transition period allows a lame-duck president to accomplish considerable mischief--including fomenting an insurrection!--but a substantially earlier inauguration date could also create difficulties because the decentralized electoral college process plus post-election litigation mean that it can take a fair bit of time to resolve legal challenges and determine a winner. 

We follow all of those arguably terrible rules and many more because they are perfectly clear, and the American people accept the Constitution as the supreme law of the land. Constitutional litigation, however, is an entirely different matter.  

Monday, March 13, 2023

The Potential Political Consequences if SCOTUS Dismisses the North Carolina "Independent State Legislature" Case

 by Michael C. Dorf

Earlier this month, the Supreme Court issued an order to the parties and the Solicitor General directing them to brief the question whether the Court still has jurisdiction to decide Moore v. Harper, in light of the North Carolina Supreme Court's decision to rehear the case from which Moore is an appeal. Readers may recall that Moore presents the question whether Article I, Section 4 of the Constitution--which assigns to state legislatures the authority to determine the manner of elections for Congress--precludes state court judicial review under the state constitution of political gerrymandering.

The petitioners are Republicans who object to the North Carolina Supreme Court's invalidation of the map drawn by the GOP-controlled legislature and its remand to the trial court to supervise the drawing of (or itself draw) a new map. The Supreme Court heard oral argument in the case in December. As I noted at the time, it was not the finest (nearly three) hour(s) of either the Justices or the advocates. Even so, many observers came away from the argument thinking that the Court was unlikely to adopt the most aggressive version of the "independent state legislature" (ISL) theory advanced by the petitioners.

ISL is a misbegotten and dangerous theory. To see why, readers could do no better than to read the terrific amicus brief by law professors Akhil Amar, Vik Amar, and Steve Calabresi. It makes what I regard as irrefutable arguments based on text, original understanding, structure, and just common sense. One hopes that Professor Calabresi's conservative credentials would also give the brief some added credibility with the Justices who have heretofore flirted with ISL. But the order regarding jurisdiction suggests we won't find out what the Justices think about ISL--at least not this Term. After saying a few words about jurisdiction, I'll speculate about the potential political consequences if SCOTUS dismisses.

Friday, March 10, 2023

Netanyahu's Political Takeover of the Courts

 by Michael C. Dorf

In addition to its hardline policies in other domains, the current far-right coalition government in Israel is rapidly moving to undercut the independence of the nation's courts. The details of the legislation moving forward in the Knesset (Israel's unicameral parliament) under the sponsorship of Simcha Rothman differ somewhat from the version proposed by Justice Minister Yariv Levin. However, bloc voting by members of the parties forming the ruling coalition ensures that once they iron out their differences, some version of the measure will go through--unless Prime Minister Netanyahu judges the political cost too high. Yesterday brought a ray of hope, when Netanyahu seemed to open the door to a compromise proposal by Israel's (mostly ceremonial) President Isaac Herzog, but that's no reason for protesters to ease the pressure.

With the disclaimer that I am not an expert in Israeli politics (or in Israeli law, for that matter), I will say that I am not optimistic about the prospect of derailing or substantially weakening the effort to rein in the courts. For one thing, Netanyahu has a personal interest in undercutting the courts. By changing the composition of the judiciary, he can reduce the likelihood that he will be convicted of the corruption charges pending against him and increase the likelihood that if he is convicted, the result will be reversed on appeal.

Moreover, even setting aside Netanyahu's personal motives, he is under considerable pressure to attack the courts. In order to maintain his power, Netanyahu needs to appease the most extreme right-wing members of his coalition, in somewhat the same way that Kevin McCarthy cannot risk alienating the likes of Marjorie Taylor Greene. Each leader's pragmatic streak is tempered by his political weakness. Even if the long-term interests of the GOP and Likud (not to mention the long-term interests of the U.S. and Israel) counsel moderation, in both countries the imperative of political survival in leadership demands bowing to the extreme right.

Accordingly, I shall assume for the balance of this essay that at least two key elements of the Rothman and Levin plans will become law, even as I hope I'm wrong in that assumption. Those elements are: (1) a change in the means by which Supreme Court Justices are selected from one that, by requiring a super-majority of persons with differing views, ensures political balance on the Court, to a system that effectively gives the ruling coalition in the Knesset the power to name whichever Justices it wishes to name, even in the face of the most strenuous opposition; and (2) effective elimination of the Court's power of judicial review.

After providing a little background, I'll offer some broader thoughts about norms and judicial review.

Thursday, March 09, 2023

The Tightening Grip of Authoritarianism Is Not Limited to Florida

by Neil H. Buchanan

Over the last several years, I have in varying contexts predicted that the US will soon no longer be a constitutional democracy, that we will witness the end of anything resembling the rule of law in this country, and that there seems precious little that we can do to stop any of that from happening.  The most dramatic and direct way for that to happen would have been for Donald Trump to have succeeded in his efforts to supplant the results of his 2020 loss.  At that point, there would no longer have been even the fig leaf of democratic legitimacy, and an unbound Trump would have been -- as he put it to his most devoted followers at a conference a few days ago -- "your retribution."  Meaning, of course, his retribution.

To my surprise and delight, that did not happen in 2020/21 (though only barely).  Even so, the evidence of creeping authoritarianism was all around us, and Republicans' rapid pivot from post-insurrection shock to denialism made it all seem less like creeping on tiptoe (though still creepy) and more like a brisk trot.  We are not yet at a full sprint, but it does seem that the Republicans' strides are getting longer and more confident -- much of it under the cover of culture-war craziness, but with a very consistent goal of establishing one-party rule in the US.

Here on Dorf on Law, I have been noting with some dismay that my current state of residence has seen itself become a laboratory of autocracy.  This includes the Republicans' negating of an extremely popular constitutional amendment that would have re-enfranchised over a million Floridians, the voter intimidation that that negation then allowed, the absurdly extreme gerrymandering that keeps them all in power, the punishing and threatening of private businesses for violating conservative orthodoxy, and too many other heavy-handed moves to list here.

Today, I want to pick up on a few loose ends of this discussion, mostly to add some thoughts and fill in some gaps.  I will then move outside of the boundaries of the Sunshine State, to show that the dictatorial fever is alive and well in other states -- even among Republicans who have otherwise done some unquestionably honorable things amid the recent chaos of American politics.  The trend lines are all moving in the wrong direction, and the slopes are all rising menacingly.

Wednesday, March 08, 2023

Of Bruen, the Second Amendment, and Constitutional Insanity

 By Eric Segall

Last week, I wrote an essay explaining why New York State Rifle & Pistol Ass'n v. Bruendecided last June by the United States Supreme Court, is one of the most radical, anti-originalist, ahistorical, and tragic decisions of my lifetime. Bruen directs judges to perform a text, history and tradition only analysis to Second Amendment cases without any judicial balancing of the government's interest in the challenged law against the importance of the asserted right to "keep and bear arms." As I wrote here, this rejection of judicial balancing of rights against the public good would have been universally rejected by the ratifiers of both the Second and Fourteenth Amendments and the public during both time periods. Bruen is an anti-originalist opinion written by the Court's staunchest originalist Justice- Clarence Thomas. Oh, the irony.

This Friday I head to New Orleans for a symposium on judicial review and democracy where I will argue that Bruen wrongfully elevates judicial review above democracy in dangerous and maybe even fatal ways. In this blog post, I use a recent Fifth Circuit Second Amendment case and its majority and concurring opinions to illustrate many of these problems. Bruen is quite simply a national nightmare.

Tuesday, March 07, 2023

Can Florida Require Bloggers to Register with the State? 'The Crucible' Comes to Academia in 2023

by Neil H. Buchanan

"Florida bill would require bloggers who write about the governor and legislators to register with the state," warns the headline of an NBC news article.  As it happens, I did not come across that article on my own; it was sent to me by one of my nieces, who added a question: "Have you seen this?"  Generally speaking, I assume that my family is only vaguely aware of what I do, so when one of them (who is a novelist, not a news junkie) brings something like this to my attention, I have to assume that it is big news even outside of my siloed world.

And that supposition, in turn, suggests to me that the state legislator who proposed the bill might merely be trolling.  How better to Own the Libs, after all, than to suggest something outrageous to grab attention, watching non-Republicans get their panties in a bunch about possible government censorship?  On the other hand, things that were only recently unimaginable in my current home state are now becoming grim reality, especially in education (at all levels).  Although this proposed law does not target only professors, it certainly is of a piece with the Sunshine State's Republicans' efforts to put pressure on scholars and other policy experts.

I will, therefore, for present purposes take this proposed censorship seriously -- which includes seriously questioning whether the appropriate response is to ridicule it and to play games in response to it.  I think the answer is ultimately that we have to be aware that these guys are not playing around, no matter how absurd such proposals might seem.  But there is some humor to be mined here as well.

Monday, March 06, 2023

Should We Rename the Democratic Party? An Inadvertently Interesting Suggestion From a Trolling Politician

by Michael C. Dorf

Last week, Florida state senator Blaise Ingoglia proposed a bill that would "cancel" the Democratic Party. The "Ultimate Cancel Act" (as the bill itself labels the measure) does not mention any party by name but requires the state's election authorities to "cancel" any "political party, if the party’s platform has previously advocated for, or been in support of, slavery or involuntary servitude." That's a not-at-all-veiled reference to the Democratic Party. Why? Because prior to realignment, the Democratic Party, especially in the South, was the party of slavery and then Jim Crow. Thus, most of the worst white supremacists were Democrats before Nixon's Southern Strategy led them and later racists to make their home in the Republican Party, which, into the 1960s, was still the "Party of Lincoln."

To state the obvious, the bill is absurd. Ingoglia is apparently a longtime critic of "cancel culture"--a somewhat amorphous concept that generally applies to instances of people being publicly shamed or losing employment or other economic opportunities based on having said or done something that many others regard as offensive. Let's grant that some of the incidents that Republicans and Republican-aligned media label as instances of cancel culture involve disproportionate penalties for either innocent mistakes or relatively minor offenses. Even so, the comparison to what Ingoglia's bill would do is inapt.  No one subject to "cancel culture" is literally canceled in the sense of silenced by the government. Perhaps Ingoglia knows that and is only trolling. I had never heard of him before last week, so I don't know whether he is a dimwit or an evil-but-not-entirely-stupid provocateur.

In any event, the bill is unconstitutional. The government cannot, consistent with the First Amendment, prevent private associations and entities (such as the band "The Slants") from obtaining a trademark in a name that others regard as offensive. State registration of a party involves no greater, and probably less, state association with the party's name than does federal granting of a trademark. Political parties are private entities whose names are their speech. Just as no state could decline to register the Republican Party based on its recent and ongoing association with racists and insurrectionists, no state can deny recognition to the Democratic Party based on its 19th-century association with slavery. 

So we can dismiss Ingoglia as a dimwit, a provocateur, or (as the chair of the Democratic Party in Florida called him based on The Ultimate Cancel Act) a would-be "dictator." But if wisdom can come from the mouths of babes, as the proverb says, why not from a Republican troll? Is there a case to be made for re-naming the Democratic Party?

Friday, March 03, 2023

Again, this is Not Our Parents' Republican Party

by Neil H. Buchanan

When now-President Biden was running for the Democratic Party's nomination in 2019 and 2020, he was roundly mocked by people like me for talking about how well he would be able to work with his Republican pals after their inevitable post-Trump "epiphany."

A year or so into his presidency, Biden finally acknowledged reality with a speech in which he emphasized the label "MAGA Republicans," differentiating between the people he used to know and the extremist movement that Republicans have now become.  The not-entirely-rare group of people like Liz Cheney, who have been drummed out of the party that they once defined, are probably who Biden had in mind as non-MAGA Republicans, even though they are not welcome in the Republican Party anymore.

To end the week, I want to use this space to offer a reflection on the theme of how much American conservatives have changed.  In doing so, I will look at how even some of their worst old habits have morphed into something more ridiculous and damaging, while their new obsessions are outright contradictions with some of the conservative movement's supposed core commitments.

Thursday, March 02, 2023

Of New Rules and New Applications of Old Rules

by Michael C. Dorf

My latest Verdict column discusses last week's SCOTUS opinion in Cruz v. Arizona. In a 5-4 opinion for the Court by Justice Sotomayor (joined by the other Democratic appointees plus CJ Roberts and Justice Kavanaugh), the Court held that it had the authority to review and then reversed the Arizona Supreme Court's rejection of John Montenegro Cruz's challenge to his death sentence. The trial judge had failed to inform the sentencing jury that rejection of a death sentence would result in life imprisonment without parole (LWOP). That clearly violated Simmons v. South Carolina. However, the Arizona Supreme Court held that Cruz could not bring a second state post-conviction claim because his case didn't fit a state law exception for when there "has been a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence.”

That was quite dubious because Cruz pointed to Lynch v. Arizona--a SCOTUS ruling after Cruz's sentencing that held that the courts of Arizona had no sound basis for their failure to apply Simmons. Not good enough, said the Arizona Supreme Court: Lynch was a change in the application of pre-existing law, not a change in the law.

Justice Sotomayor's opinion says that the distinction between changes in the law and changes in the applications of pre-existing law was inconsistent with the Arizona courts' prior cases. In light of this inconsistency, the state court construction of the procedural rule governing the availability of a second or successive postconviction petition was not an adequate basis for defeating Supreme Court review of the underlying federal question. As I explain in the column, that's fair, but I would have preferred a holding that the distinction between changes in the law and changes in applications of the law would be an unreasonable basis for denying federal rights, even if the Arizona courts applied it consistently.

The column lays out the foregoing argument in greater detail and with more background. Here I want to pivot to discuss the distinction the Arizona Supreme Court drew in wider context. As I'll explain, one can point to a sensible conceptual difference between changes in the law and changes in the law's application, but it's hard to see why this distinction should make a practical difference in most settings.

Wednesday, March 01, 2023

Standing for Gravediggers? A Comment on the SG's Concession in the Student Debt Forgiveness Case and a Coda on the Major Questions Doctrine and Fairness

by Michael C. Dorf

Over the course of two oral arguments and more than three and a half hours yesterday, the Supreme Court considered challenges to the Biden administration's student debt forgiveness program. I have written about these cases before, both on the blog--here and more recently here--and in an essay in The Nation. In today's essay, I'll make a point regarding the oral argument that builds on my previously articulated view that the plaintiffs lack standing. I'll also offer brief observations about two other aspects of the arguments, one involving the major questions doctrine and the other concerning a fairness issue that was raised by Chief Justice Roberts and then pushed by Justice Alito.

Tuesday, February 28, 2023

The Attack on Higher Education Heats up from Simmer toward Boil

by Neil H. Buchanan

Pending legislation in Florida would, if enacted, make it illegal to teach Economics in the state's universities.  It is not being described that way, of course, but what else could one conclude about a bill that prohibits the state's colleges and universities from offering general education courses "with a curriculum based on unproven, theoretical or exploratory content"?

If that sounds like snark, it is.  It is also true even on its own terms, however, because even the most true-believer orthodox economists -- the ones who insist that theirs is the only true science outside of the STEM curriculum, making the field in which I earned most of my advanced degrees "the queen of the social sciences" -- would certainly embrace the idea that economics as they understand it is both theoretical and exploratory.  Many of the rest of us know that it is also unproven (and unprovable), but even setting that aside, the people who glory in the idea that "theory" is the most exalted of the sub-fields of economics -- intellectually akin to theoretical physics -- and that they are "exploring" the contours of modern economies, have habitually violated two of the three prohibited items on a list that is connected with an "or."  Oops.

Oh, and speaking of theoretical physics ...  Gone from Florida's GenEd courses too, right?

No one imagines, of course, that this is where things will go.  The new legislation -- HB 999, which might more accurately be called HB 666 -- is all about extending and intensifying the attacks on academic freedom and making Florida's universities teach only content that is approved by political appointees of the Republican governor.

So although it can be fun to point to the clumsy wording and the illogic behind such legislation, this needs to be taken seriously.  This column will begin to explain what is happening, and what might happen next.  Unfortunately, it will almost surely be necessary to write many more such columns.

Monday, February 27, 2023

It's (Long Past) Time to End Pretext Stops

 by Tracey Maclin

In America, police targeting blacks for arbitrary and disproportionate searches and seizures is a tradition as old as the nation itself. Today, pretextual traffic stops are routinely used against black drivers, and, as in the case of Tyre Nichols, are sometimes fatal. Nichols was stopped by a unit of the Memphis Police Department, known as SCORPION – the Street Crimes Operation to Restore Peace in Our Neighborhoods. Officers in this unit were assigned to crime hot spots in Memphis and utilized pretext stops to investigate motorists and their passengers.

American law enforcement officials should abolish pretextual traffic stops immediately. Doing so would save the lives of future victims and end a practice that has haunted black motorists for decades.

Friday, February 24, 2023

Freedom from Fear

by Neil H. Buchanan

President Franklin Delano Roosevelt's "Four Freedoms Speech," which was in fact his 1941 State of the Union address, identified two ideas drawn directly from the nation's founding documents -- freedom of speech and freedom of worship -- along with two that are not as familiar and less often discussed -- freedom from want and freedom from fear.

FDR spoke those words nearly a year before the attack on Pearl Harbor but well after the Axis powers had launched what became World War II, so he understandably focused on the fear of the aggression that might come from foreign military powers: "The fourth is freedom from fear, which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor—anywhere in the world."  The four freedoms became essential components of the Universal Declaration of Human Rights, adopted by the UN General Assembly a bit less than eight years later.

Here, I want to talk about the freedom from fear, but to translate it back into domestic terms.  Specifically, I want to discuss why it is so important to make people in this country safe from the epidemic of gun violence that has overwhelmed the US, and to explain why this is a much more fundamental freedom than the "liberty" that people who oppose any regulation of guns talk about.

The short version of the story is that there is a straightforward way to understand freedom that would protect people by attempting to bring about, in Roosevelt's words, a domestic "reduction of armaments to such a point and in such a thorough fashion that no [malevolent actor] will be in a position to commit an act of physical aggression against any neighbor."  Sound radical?  If so, it is only because we have stopped thinking about how much the fear of being gunned down -- and, far too often, the reality of wholesale death -- impinges on people's freedom.

Thursday, February 23, 2023

Pending Congressional Revision of Section 230, Courts Should Treat it Like the Sherman Act

by Michael C. Dorf

In 2021, a panel of the U.S. Court of Appeals for the Ninth Circuit construed Section 230 of the Communications Decency Act mostly to shield major internet companies from civil liability to the families of victims of ISIS murders. The plaintiffs alleged that the algorithms of Facebook, YouTube, and Twitter promoted ISIS content, thus rendering them liable under the civil liability provision of the Anti-Terrorism Act (ATA). On Tuesday and yesterday of this week, the Supreme Court heard oral arguments in the two cases that seek reversal of the Ninth Circuit decision.

Why two cases? Because the Ninth Circuit decision reached a split decision.  It approved one district court's determination that Section 230 provides a shield but reversed another district court's dismissal of the complaint on the ground that it failed to state an ATA claim. Accordingly, in Tuesday's argument in Gonzalez v. Google, the plaintiffs appealed, arguing that Section 230 should not be construed to shield platforms whose algorithms "decide" to display ISIS (and similar) content. In yesterday's argument in Twitter v. Taamneh, the Court heard Twitter's appeal of the portion of the Ninth Circuit's decision that found that the plaintiff had stated a claim under the ATA.

As a shorthand, think of the Twitter case as involving the construction of the ATA, while Gonzalez involves Section 230. To my mind, Gonzalez is the more important case because it is possible for the plaintiff to prevail in SCOTUS in Twitter but still lose the case on remand on the basis of the Section 230 shield. Gonzalez is also the more important case in that Section 230 provides a cross-cutting defense against all sorts of liability, not just liability under the ATA.

In the balance of today's essay, I'll offer an observation about the Gonzales oral argument to tee up a pitch for the proposition that titles the essay.

Wednesday, February 22, 2023

Professor Fallon on Selective Originalism and Precedent

 By Eric Segall

Professor Richard Fallon of Harvard Law School is one of our most prominent and productive constitutional law scholars. He brings to the table a strong liberalism that makes him a forceful critic of the current conservative supreme court. His most recent article, "Selective Originalism and Judicial Role Morality," targets the Justices' selective use of originalism in constitutional cases and argues that, even if the justices used originalism consistently, they would still need some theory, steeped in morality and other concerns, for when to reverse what the justices deem to be erroneous non-originalist precedent. How even sincere originalists should blend originalism with non-originalist precedent is under-theorized, although a few originalist professors are beginning to try and articulate some criteria and standards. The Court, however, is nowhere close to having such as theory, as Fallon emphasizes.

I want to strongly encourage people to read this excellent article by one of our leading constitutional theorists. To effectuate that goal, I provide below a few ideas and conclusions from the article some of which readers of this blog will recognize as reaffirmations of what Mike and I have written about over the years. But there is also much in this article that treads new ground. Moreover, Fallon supports his critiques and arguments with such clarity, depth, and persuasion that originalist judges, academics, and lawyers will have a difficult time overcoming his arguments.

Tuesday, February 21, 2023

The US Could Do Much Better for its Citizens, Starting with Keeping them from Being Shot

by Neil H. Buchanan

It was only five days ago that the news broke of the shooting at Michigan State, in which 3 students died immediately and 5 others were seriously injured.  Today, that story is completely missing from the news sources that I monitor.  It is old news, and by the standards of the US, that incident is sadly (but frankly) not especially notable.

As frequent readers of Dorf on Law know, my academic and professional commitments have changed in the last decade.  In particular since I accepted a position at the University of Florida's Levin College of law four years ago, my work has called on me to do a great deal of foreign travel.  This involves the usual academic trips to attend conferences for a few days, but it also includes spending weeks or months at a time as a visiting scholar at foreign universities.  I am on sabbatical this semester, and I chose to spend part of the time living in Amsterdam and doing my research independently, before resuming my standard pattern for the next two months, in this case by visiting universities in New Zealand and Australia.

When I am on these trips, there is a constant stream of news from home about mass shootings, many of them at colleges and universities.  Unsurprisingly, I sit up and take notice.  Until I followed up on the Michigan State story to write this column, I had not known that the shooting happened while a class was in session, with the professor seeing a masked gunman walk into the lecture hall and open fire on his students.  I have had precisely that nightmare vision when thinking about the trend of violence in my country.  Coldblooded killing is always tragic, but there is no denying that we take special notice when it feels most salient, as if it could be us.

What do I, as an American spending long stretches of time abroad, take away from all of this -- not only in this most troubling trend of American exceptionalism regarding off-the-charts gun deaths, but more generally regarding life in the US as opposed to life in its peer countries?

Monday, February 20, 2023

Time to Retire Presidents' Day?

 by Michael C. Dorf

Today is Presidents' Day--or, as we say here at Cornell Law School, Monday February 20, which we treat as no different from any other typical Monday during the academic year. In today's brief essay, I'll offer two reasons to abandon Presidents' Day.

(1) There's something more than a little problematic about honoring George Washington, whose Mt. Vernon estate and thus his livelihood did, after all, rest on the enslavement of hundreds of people, most of whom were not in fact emancipated after his death. Needless to say, stripping Washington of the honors our national culture affords him is not going to happen any time soon. There are obvious practical obstacles, like renaming the capital district, the Washington Memorial, Washington state, and much more.

There is also a range of reasonable views about whether and how to honor people for their honorable accomplishments despite the evil they also perpetrated. One might conclude that honoring the likes of Robert E. Lee because of his efforts on behalf of the Confederacy is substantially different from honoring Washington despite his role as an enslaver. Even so, while it is thus unlikely that we will start de-Washingtonizing America generally, we might think that it's not necessary to treat his birthday as a national holiday, especially one that comes during Black History Month.

Ah, but what about Abraham Lincoln? One can rightly point out that Lincoln's moniker "The Great Emancipator" is unearned, given that the Emancipation Proclamation did not even purport to emancipate anybody in the slave states that were loyal to the Union. And as illustrated by the recent criticism of sports reporter Chris Berman over his odd seeming crediting of Lincoln for the fact that the most recent Superbowl featured two Black quarterbacks, many people are appropriately dubious about holding Lincoln up as some sort of civil rights hero or great white savior. That's fair enough and reason not to celebrate Lincoln for ending slavery (because he didn't). Even so, he could be celebrated for preserving the Union. So a national holiday for Lincoln's birthday could be justified on that ground, I suppose.

Friday, February 17, 2023

Open the Pod Bay Doors, Hal

by Michael C. Dorf

Continuing my recent blurring of the lines between a law blog and the revival of my childhood interest in science fiction that I indulged by my discussion of extraterrestrials on Tuesday (and my more actual-science-based Verdict column on Wednesday), today I'll talk about artificial intelligence. My point of departure is a story in yesterday's NY Times and an accompanying fascinating and deeply disturbing transcript of a conversation between Times reporter Kevin Roose and the new chatbot that Microsoft is rolling out as part of its relaunch of its search engine Bing.

After providing some background info, I'll tackle a couple of questions about the relation between artificial intelligence and sentience. As I'll explain, AI that can mimic sentience without actually achieving it can nonetheless be extremely dangerous.

Thursday, February 16, 2023

Republican Fear-Mongering on Social Security Is Nothing New

by Neil H. Buchanan

The political news continues to be favorable for President Biden and Democrats, as Republicans continue to flail in response to his calling them out on their longstanding (and that means longstanding) attacks on Social Security and Medicare.  In his State of the Union address, Biden specifically criticized the plan published by Florida Senator Rick Scott -- who, we should not forget, was once forced to resign as CEO of a company that was convicted of 14 felony counts of defrauding Medicare, in what was at the time the largest Medicare fraud in history -- but of course it has not been difficult to find examples of Republicans saying things that they are now frantically trying to explain away.

As I discussed in my column yesterday, one prominent example of this is Utah Senator Mike Lee, who explicitly and directly stated in a speech in 2010 that he would "pull [Social Security] up by the roots and get rid of it."  This was not a momentary lapse of reason, because Lee was the surprise nominee when his state's Republican nominating convention that year turned against incumbent Senator Bob Bennett for having had the nerve to vote in favor of saving the global financial system from a complete meltdown (thus helping to prevent the Great Recession from becoming the Second Great Depression).  Lee was one of the original wild-eyed Tea Party darlings.

Lee, of course, is now saying that his remarks were taken "out of context."  As far as I can tell, however, that merely means that he said those words in a context in which he would politically benefit from them, whereas now he would be politically harmed by them, so he wants to change the subject.  It is similar to the time (also in 2010) when Kentucky's Rand Paul went on Rachel Maddow's show and spent almost the entire 20-minute interview arguing that the "public accommodations" provision (Title II) of the Civil Rights Act of 1964 is a violation of people's freedom.  When that position became politically inconvenient, Paul's defenders claimed that Maddow had "ambushed him."  Whatever else one might say about her, Maddow is as far from an ambush journalist as one can get.

The point is that Republicans hate it when they say things that they know are going to go over well with their target audience but are suddenly confronted with the unpopularity of their insular views.  Mitt Romney's infamously disparaging comments in 2012 about the poors -- who in Romney's telling “believe that they are victims,” have an undeserved belief “that they are entitled to health care, to food, to housing, to you name it,” and can never be convinced to take “personal responsibility and care for their lives” -- were delivered to a private audience of appreciative wealthy donors.  When the recording of his remarks was released publicly, it did not go well for Romney.

On Social Security, it is especially easy to find Republicans saying things that they now would like to bury.  Here, however, I want to talk about the less explosive kinds of comments that Republicans make that nonetheless show how willing they are to try to distort the public's understanding.  Not Lee-style "by the roots" stuff, but in their own way even more of a problem.  If you can convince people that the system is already doomed, can you also convince them to let you destroy it preemptively?  Republicans certainly seem to think so.

Wednesday, February 15, 2023

Even Now, the Attacks on Social Security and Medicare Will Not Stop

by Neil H. Buchanan

As political strategies go, President Biden's attack last week on the Republicans who have been attacking Social Security and Medicare worked brilliantly -- most likely beyond what anyone in the White House had planned or even dared to hope.  My guess is that the Biden team, as they thought through his State of the Union address and what to highlight,  thought (rightly) that they could position themselves in a favorable political light by pointing out that various Republicans have been very vocal over the years in trying to cut, privatize, or simply eliminate those two wildly popular government programs.

Did they expect the political gift that Republicans offered in response?  I honestly doubt it, but who cares?  The Republican caucus, rather than doing what most people would have anticipated them doing, which is to go on the talk shows and try to say that they have always been at war with Eastasia loved Social Security and Medicare and that it is the dastardly Democrats who cannot be trusted, instead jeered and heckled Biden like middle schoolers, calling him a LIAR for saying that any Republicans would suggest sunsetting the two big middle-class social insurance programs.  They could not bear even for a moment the idea that Biden could say something about them that, while true, was politically uncomfortable.

Few people have ever thought of Biden as being an agile in-the-moment debater, but he certainly timed his coming-out party well.  Again, it seems unlikely (though hardly impossible) that he could have planned for this, but he deftly seized the moment and said, in essence: You've got a deal!  No cuts to Social Security or Medicare.  We good?

This happens to be great news for someone with my political leanings, of course, because my oft-disappointed feelings about the Democratic Party are nothing compared to my paralyzing fear of what Republicans will soon do to end our constitutional democracy.  Even setting politics aside, however, this is great news substantively, because I happen to have spent a great deal of my professional life debunking baseless conservative attacks on Medicare and especially Social Security.  And here I do mean "conservative" to include more than Republicans, as I will explain below.

It has been barely a week since Biden's big moment, and the backlash from the budget hawks (or, as Paul Krugman calls them, the Very Serious People, or VSPs) has already begun.  Democrats and Republicans, in an unplanned way, have agreed to leave in place two of the most successful pieces of social legislation in human history (perhaps not as transformative as child labor laws or the 5-day work week, but that is pretty good company).  The VSPs' response: This cannot stand!

In the face of Biden's success, what is a good anti-government fiscal scold to do?  Present their political preferences as facts, and count on elite institutions like The New York Times to lead the way.  What could be more bipartisan than to have the supposedly liberal Times front for an attack on the middle class?  How about passing it off as neutral reporting rather than opinion?  They can do that, too.

Tuesday, February 14, 2023

What if Extraterrestrials Sent the UFOs?

 by Michael C. Dorf

First of all, I refuse to use the term "UAP," given the rich and weird history of "UFO." I get that "unidentified aerial phenomena" is technically more accurate than "unidentified flying objects" because some of the observations might not be of "objects," while some of the objects lack the capacity to "fly" in the sense of direct their own course. Even so, it's not as though the term UFO offended extraterrestrials or anyone else. It seems to me that the Kansas City pro football team and the Atlanta major league baseball team should change their names (and their fans should abandon the "tomahawk chop") long before we give up "UFO."

Meanwhile, yes, I know. By far the most likely explanation for the discovery of the three UFOs that the U.S. and Canada have shot down since shooting down the Chinese spy satellite is simply that the more finely tuned parameters for detecting and acting on high-altitude objects have revealed more stuff floating in North American airspace than we previously cared about. However, while that fact means that it's highly unlikely that there are suddenly more UFOs above the North American skies than in the past, it doesn't rule out the possibility that some of them are of extraterrestrial origin. Maybe the hyper-intelligent octopus-people of Kepler-62f have been silently watching us for years and we're only now noticing their probes.

Undercutting the ET explanation is the statement by the National Security Council that the three objects shot down since the downing of the Chinese balloon were (as reported by NPR) "uncrewed and . . . have limited abilities, from a lack of communication signals to a lack of obvious propulsion capability." But of course, the spacefaring octopus-people could have all sorts of technology we barely comprehend--means of hiding their crew, communications, and propulsion methods. Thus, when White House press secretary Karine Jean-Pierre said "[t]here is no – again, no — indication of aliens or extraterrestrial activity with these recent takedowns," it's possible that our technology is unable to detect the cloaked signs of extraterrestrial activity.

Am I serious? No, of course not. But my Verdict column tomorrow will discuss the Chinese spy balloon, so I thought it would be fun to write about ETs in today's essay for the blog. The column discusses the scientific and legal distinctions between spy balloons and spy satellites. In the balance of this essay, I'll say a few words about how we might think about contact with alien civilizations.

Monday, February 13, 2023

The Perils of American Exceptionalism--at Home and Abroad

 by Michael C. Dorf

On Friday of last week, I critiqued President Biden's statement during the State of the Union asserting that the U.S. is unlike other countries in the world, which are based on geography and/or ethnicity because the U.S. is based on the idea that every member of the polity "is created equal in the image of God." I explained that each of the four propositions implicit in that statement is wrong. To recap, those four propositions are: "(1) The U.S. is not defined by or based on geography or ethnicity, but is instead based on an idea; (2) the idea on which the U.S. is based is human equality; (3) the idea of human equality is Divine in origin; and (4) no nation other than the U.S. is based on an idea."

Why did I go into so much depth? Because Biden's false claims--which echo views that we might call patriotic hyperbole passed off as conventional wisdom--are widely held and conducive to great mischief in both constitutional law/politics and foreign policy. I elaborate each of those forms of mischief below but first I'll follow up with a brief clarification and further development of a couple of points I made on Friday.

Friday, February 10, 2023

Is the U.S., as Biden said in his SOTU, "the only nation in the world built on an idea?"

by Michael C. Dorf

Very near the end of his State of the Union address on Tuesday night, President Biden said that the United States is 

the only nation in the world built on an idea. The only one. Other nations are defined by geography [and] ethnicity, but we're the only nation based on an idea. That all of us, every one of us, is created equal in the image of God. 

There are four claims there: (1) The U.S. is not defined by or based on geography or ethnicity, but is instead based on an idea; (2) the idea on which the U.S. is based is human equality; (3) the idea of human equality is Divine in origin; and (4) no nation other than the U.S. is based on an idea.

The good news is that no one in the chamber booed or heckled when Biden delivered the foregoing patriotic and inspirational lines. The bad news is that none of those four propositions is true. I offer the analysis below not so much as a criticism of Biden in particular--who, in making the foregoing statement expressed something like the conventional wisdom offered by American politicians--but as a critique of a common brand of American exceptionalism.

Thursday, February 09, 2023

With Manchin in the Lead on the Debt Ceiling, What Could Possibly Go Wrong?

by Neil H. Buchanan

Now that the first wave of uninformed press coverage about the debt ceiling has run its course, superseded by things like the Turkey/Syria earthquake and Republicans heckling the State of the Union speech, the real work will begin.  That is, even though we reached the nominal debt limit a few weeks ago, we have some unknown number of months (most likely until June or July) before the drop-dead date on which Republicans might shoot the hostage and push the US into a constitutional crisis.  Four or five months is not a long time, and it will involve ebbs and flows of news as real discussions take place that will determine our collective fate.

Professor Dorf pointed out a few days ago that the Biden Administration seems to be trying to "win the politics" of the debt ceiling by priming the public to blame Republicans if everything goes to hell.  I completely agree with his forceful retort:

If Biden thinks that he has painted McCarthy into a corner where McCarthy will have to concede lest the unpopularity of the GOP position be exposed, he hasn't been paying attention.

For God's sake, AFTER A MOB INSPIRED BY A DEFEATED REPUBLICAN PRESIDENT TRIED TO VIOLENTLY OVERTHROW THE U.S. GOVERNMENT, A MAJORITY OF HOUSE REPUBLICANS VOTED TO END DEMOCRACY IN AMERICA. What price did they pay? They won back the House by a smaller margin than expected, but meanwhile, the few patriotic House Republicans willing to stand up to the madness lost their seats. And Joe Biden thinks Republicans will be embarrassed by the fact that they haven't specified what budget items they want to cut? Or that they won't simply lie about it?

As Professor Dorf went on to point out, Biden might be trying to negotiate with hostage-takers while denying that he is doing so.  In any case, it is surprisingly not Biden's inherently cautious centrism that underpins his thinking on this.  As I noted here recently, even the genuine left-liberal thinker Bob Kuttner has enthusiastically embraced the idea that Biden should affirmatively harm vulnerable people (like Social Security recipients), because that would allow Biden to point the finger at Republicans.

That means that even some of the people who should be aggressively telling Biden that he needs to pay all the government's bills when the time comes, even if that means issuing debt that Congress has not authorized, are instead mired in wishful thinking about harnessing harm to real people to their side's political advantage.

But an even larger part of the problem is that Biden's supposedly cautious strategy (which is in fact quite risky) requires following the conventional rules of politics.  If he is going to win the politics, he is going to have to play politics.  And who else is on this playing field?  None other than the barely-Democratic senator from West Virginia, Joe Manchin.  When I first saw reports indicating that he will play a major role in negotiations (although, again, Biden claims that he is not willing to negotiate), my heart sank.  On the other hand, Manchin would have been a stumbling block no matter what, so I guess it does not matter that he is in the mix now.

Or does it?  Two days ago, The Washington Post ran an op-ed under Manchin's byline.  The piece was not so much terrible as comically confused, showing a lack of understanding that will make his presence in these we-swear-they're-not-negotiations talks especially problematic.  Although he stumbled his way toward something that almost sounded like a reasonable position for a fiscal hawk (and while I am definitely not a fan of budgetary orthodoxy, at this point any argument from conservatives that is not utterly daft is a welcome change of pace), his presence will almost certainly make matters worse.

Wednesday, February 08, 2023

Schadenfreude and Third-Party Standing in the Student Debt Forgiveness Case

by Michael C. Dorf

Later this month, the Supreme Court will hear oral argument in two cases challenging the Biden administration's student debt forgiveness program: Dep't of Educ. v. Brown and Biden v. Nebraska. Each case presents a threshold question whether the respective respondents have standing as well as a merits question. Although the merits questions are worded a bit differently in each case, they boil down to the same basic objections: (1) that the HEROES Act, which the administration invoked as authority for the debt forgiveness plan, does not in fact authorize it because, say the respondents, most of the beneficiaries of the plan were "not placed in a worse position financially in relation to that financial assistance because of their status" as individuals affected by the national emergency of the COVID-19 pandemic; and (2) the adoption of the plan was procedurally flawed.

As I wrote in my Verdict column last week, the recent announcement of the Biden administration's intention to end the COVID-based national and public health emergencies puts the Solicitor General in a somewhat awkward position rhetorically but as a logical matter should not affect the merits. The national emergency first declared by the Trump administration and used initially by that administration as the basis for temporary cessation of student loan interest payment obligations was a valid exercise of the authority granted by the HEROES Act, and the effects of an emergency can linger after the emergency ends. The sticking point, as noted above, is just what those after-effects are--a question to which the end of the emergency is not really relevant. Even so, as I noted in the column, I would not be surprised if lawyers for the respondents invoke the impending end of the emergency to score points, nor would I be surprised if one or more Justices make the same contention.

Readers interested in the merits might wish to view my recent "debate" with Professor Ilya Somin about the case. (I put the word "debate" in quotation marks because it was more of a friendly discussion in which I agreed with some of what Prof Somin said and disagreed with other points.) Prof Somin's opening remarks focused mostly on the cases' merits, discussing standing only at the end, whereas my opening remarks were directed mostly to standing; in our second round and during the Q&A, we each addressed both standing and the merits. (Due to a technical glitch, the video cuts off the Introduction and starts about a minute into Prof Somin's remarks but is otherwise easy to follow.) In the balance of today's essay, I'll recap and further elaborate on a couple of points I made about standing.

Tuesday, February 07, 2023

The UK's Self-Immolation Proves (Among Other Things) That Business Needs Regulations

by Neil H. Buchanan

Apparently, "Everyone Regrets Brexit," according not only to one UK-based news outlet but to poll after poll showing that the people of the UK now rue their country's 52-48 plebiscite vote to leave the EU.  Astonishingly, according to a recent mega-poll of ten thousand respondents, the "we should have stayeds" outpace the "glad we lefts" by almost a two-to-one margin.  That is hardly surprising, because the idea of getting out of Europe was sold on lies in the first place, and the county's long, grinding decline has only accelerated in the last six years.

Does that mean that the UK will soon be back in the EU?  That would make too much sense.  Before we even get to the question of rejoining, recall that that 2016 vote was non-binding, and it was only when the Conservative Party decided to go all-in on carrying through with Brexit -- and "hard Brexit" at that -- that the divorce was hammered out.  In addition, the supposed mandate from the voters in 2019 that put the serial liar Boris Johnson (whose career of brazen, very public lying stretches back at least to 1988) in charge of "getting Brexit done" in fact saw more than half of the voters that year choosing parties that opposed Brexit.  Again, this is a train wreck that the Tory party embraced and delivered, ignoring every warning along the way.

So surely the Labour government-in-waiting will seize on popular discontent.  Right?

Monday, February 06, 2023

A Debt Ceiling Deal That's Not Called a Debt Ceiling Deal is Still a Debt Ceiling Deal

by Michael C. Dorf

Following his meeting last week with President Biden, House Speaker McCarthy stated that he and the President should be able "to find common ground" regarding raising the federal debt ceiling. Yet the two sides seem to be starting at an impasse. McCarthy says he wants budget cuts in exchange for raising the debt ceiling; Biden says that raising the debt ceiling is non-negotiable.

Biden clearly has the moral high ground here. This is not like a budget negotiation in which, say, Democrats want billions for some domestic program while Republicans want billions for some military program, so they come together to fund both. Biden's ask is not on behalf of any Democratic agenda item. Raising the debt ceiling is necessary to avoid tanking the global economy and perhaps permanently undercutting the role of the dollar as the world's reserve currency.

And yet, even though McCarthy's position is unreasonable, to paraphrase Donald Rumsfeld, you don't negotiate with the House Speaker you wish you had but the one you have. Just as hostage negotiators sometimes find themselves negotiating with hostage takers and U.S. diplomats sometimes negotiate with unsavory regimes, so too here, the administration must deal with McCarthy and his caucus of ideologues and imbeciles. What are the options? Let's consider.

Friday, February 03, 2023

How Might We Make Britain (and America) Great Again?

by Neil H. Buchanan

The UK's many problems have become too obvious for even the most obtuse anglophiles to ignore or deny.  That country's post-Brexit meltdown, which has (among many other things) renewed the possibility of Scotland declaring independence -- Sexit, it seems -- continues to get even worse, with the empire on which the sun once never set now seeing an acceleration of its long, agonizing decline.

In yesterday's column here on Dorf on Law, I asked whether the US or the UK will be the first to fully implode, economically and politically.  I acknowledged that the Brits have a significant head start on the Americans in terms of frittering away their many advantages, having begun their decline in 1945 (at the very latest) and showing no signs of rejuvenation at any time since then.  On the other hand, the US's particular pathologies -- most obviously the chaos that Republicans are unleashing via debt-ceiling-based threats of Armageddon, although in fact it all comes down to our constitutional infirmities, such as a Supreme Court that laughs off gerrymandering -- might allow us to speed past our former colonial overlords on the highway to hell.

Moving from predictions of doom to the possibility of changing our fates, what might be done to stop all of this?  A brief conversation with a British colleague earlier today sparked some thoughts.  A possible alternative headline to this column captures the basic idea: "National Renewal and Soaking the Rich: What Must Be Done to Reinvest in Our Future?"

Thursday, February 02, 2023

Can the US Best the UK in the Art of Self-Destruction?

by Neil H. Buchanan

Russia, emerging from the ashes of the Soviet empire, was until less than a year ago thought to be a world power in its own right, with the invasion of Ukraine to be the first in a series of assuredly unstoppable steps to returning itself to the status of something like an imperial power.  On the other hand, China's post-Maoist history is a mixture of impressive advances and setbacks.  Turning more than 300 million rural peasants into middle-class city dwellers is, after all, almost incomprehensible in its scope.  But perhaps its most consequential setback, as we recently learned, was not caused by a singularly bad decision (like Vladimir Putin starting a land war in Europe).  There is now, instead, the sudden recognition that the country has badly mishandled its population policies for the last half century, with the result that there is now an "age bomb" threatening the country's still-unknowable future.

The colonial empires of the various European powers had all petered out by roughly 1960, with only the most ridiculous remnants remaining.  For example, I have been spending the last month in the Netherlands, which is formally the Kingdom of the Netherlands, consisting of Aruba, Curaçao, the Netherlands and Sint Maarten.  There is a royal family, but the king has actually piloted commercial jets incognito.  (I am not kidding.)  New Amsterdam (the city, not the now-canceled TV series or the Manhattan brewpub) was a long, long time ago.  Last semester, I was in Austria, which does not even hold onto any remains of the Austrian or Austrian-Hungarian Empires.  (It does have awesomely beautiful architectural grandeur that the country is maintaining very well, however.)  France?  Spain?  Portugal?  Sweden?  Denmark?  Germany/Prussia?  Italy?  Please.

I mention these recent and not-so-recent powers not because they are my focus today, but because I want to think about the two countries that have undeniably been global superpowers within the lifetimes of at least the oldest people alive today, and for much longer than that.  The UK (technically the United Kingdom of Great Britain and Northern Ireland) and the US (the United States of America -- USA, USA, USA!!) are the two most recent global hegemons.  In both countries, things are not going well, and the trends all point in the wrong direction.

Why are both once-great powers now in such a bad way?  And which one will flame out more ignominiously or spectacularly?  In this competition that neither country should want to win, both the UK and the US show plenty of signs of losing by winning.

Wednesday, February 01, 2023

Text, History, and Tradition in the 2021-2022 Term: A Response to Professors Barnett and Solum

 By Eric Segall

The 2021-2022 Supreme Court term was one of the most important in American history. In Dobbs v. Jackson Women's Health, the justices returned the issue of abortion completely to the states (and potentially Congress). In New Yok State Pistol & Rifle Ass's., v. Bruen, the Court substantially limited the ability of states to pass meaningful gun control laws. And in Carson v. Makin and Kennedy v. Bremerton School Dist., the justices further weaponized the free exercise clause as a restriction on the states while further limiting the reach of the establishment clause. 

Constitutional law scholars across the ideological spectrum have been trying over the last seven months to make sense of these decisions and how they relate to originalism and the use of text, history, and tradition in constitutional law. One such effort is a recent article by two of the country's most prominent academic originalists--Professors Randy Barnett and Lawrence Solum. Their article, "Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition," is a complex and provocative assessment of three of the cases discussed above (they leave out Carson), as well as the authors' suggestions for how best to incorporate history and tradition into originalist judicial decision-making. There is little doubt this article will be widely-read and will constitute a major contribution to our academic debates over originalism. The authors posted the paper on SSRN just a few days ago and it already has over 1000 downloads.

Tuesday, January 31, 2023

Who Says the President Should "Invoke" the Fourteenth Amendment?

by Michael C. Dorf

The approach of debt ceiling doomsday has provided Professor Buchanan and me with further opportunities to elaborate on our "least unconstitutional option" approach. We are making some new points, but much of what we have to say now simply aims to clarify or popularize our prior academic writing--as in my recent op-ed in The Boston Globe. Today's essay will do a little of both: (1)  clarify a prior point; and (2) offer a set of new observations.

In addition to our own new writings, we find that journalists have also taken an interest in our work. Sometimes they do so without contacting us, as Jamelle Bouie did, citing us in this excellent January 20 essay in the NY Times. Other journalists may cite our prior work but also wish to talk to one of us, as reporter Jeff Stein did for this Washington Post article over the past weekend. I was very grateful to Mr. Stein for giving me the opportunity, after we talked, to review and edit the quotations he attributed to me based on our conversation.

I was also grateful to Mr. Stein for really understanding our position. Often when I talk to reporters, I must spend some substantial portion of the conversation explaining how the Buchanan/Dorf view differs from others with which they have conflated it. One of the most common assumptions I must dislodge in these discussions is that the Buchanan/Dorf position would have the President "invoke the Fourteenth Amendment."

Here I'll explain what's wrong with that assumption. I'll then turn to my new observations--involving others who are actually invoking the Fourteenth Amendment.

Monday, January 30, 2023

A Few Reflections on the Horrifying Police Murder of Tyre Nichols

by Michael C. Dorf

Along with millions of other Americans, I was horrified and sickened by the police murder of Tyre Nichols. I am also somewhat in awe of his mother and family for how they have handled this devastating loss--promoting the public good even while experiencing unimaginable grief. I don't claim to have any special insight, but I also don't think it would be appropriate to say nothing about this incident. Accordingly, I offer three observations regarding: (1) traffic stops; (2) excessive force; and (3) race.

Friday, January 27, 2023

Would it Even Be Possible to "Prioritize" When Republicans Create a Debt Ceiling Crisis?

by Neil H. Buchanan

The public discussion of the debt ceiling crisis is reverting to a slow burn, now that everyone (and I do mean apparently everyone) has offered their hot take on last week's report that the US has again hit the formal debt ceiling.  That was both big news and a non-event, the former because of course it is a very big deal that Republicans have made it clear that they truly are willing to shoot the hostages this time, the latter because the real drop-dead date is not when we hit the ceiling but when Treasury exhausts the (misleadingly named and revealingly absurd) "extraordinary measures" that a long-ago Congress made available for these situations.

With the heat temporarily turned down, it seems worth taking a moment to address an issue that I mentioned briefly in a column last week: What is wrong with the possibility of "prioritization"?  Specifically, if President Biden soon finds himself on the drop-dead date without a deal to increase/suspend/repeal the debt ceiling, would it be possible for him to ignore the Buchanan-Dorf advice of issuing new debt in order to pay all of the bills (which we have long called "the least unconstitutional option") and instead pick and choose which bills to refuse pay in full and on time?

I am not asking whether such a move would be constitutional or even a good idea, because it is obviously neither of those things.  I am asking whether it is possible.  It is not -- or, more accurately, even if it is logistically possible, it is legally untenable as well as politically suicidal.  Why?  Glad you asked.

Thursday, January 26, 2023

Is New York's Recreational Marijuana Law the Best Way to Compensate People Unjustly Harmed by the War on Drugs?

 by Michael C. Dorf

Just before the new year and almost two years after the passage of the law permitting the sale of recreational marijuana in New York Statethe first dispensary in the state opened for business in lower Manhattan. I expect that eventually cannabis dispensaries will become fairly common in New York State, but so far the rollout has been quite slow. Meanwhile, the combination of decriminalization of possession and the dearth of legal dispensaries has led to what I imagine is at least a temporary flourishing of the illegal marijuana distribution business: increased demand from New Yorkers who might have been deterred from purchasing marijuana by the old enforcement regime will have been met by marijuana dealers operating outside the law.

In the long run, however, one would expect that the illegal market will shrink once the legal market expands. How much it shrinks depends on a number of factors. Municipalities may opt out of permitting dispensaries (thus relegating marijuana buyers in those places either to traveling substantial distances to purchase from legal dispensaries or to purchasing locally from illegal sellers). Even when a municipality does not opt out entirely, it can register objections to particular dispensaries. Meanwhile, in New York, as in other states, marijuana buyers are likely to be sensitive to perceived quality differences and price differences between what's available legally versus illegally. New York's 21.5% tax on legal sales is lower than in some other states but hardly trivial. Further, dispensary operators have substantially higher overhead costs than illegal dealers do. Accordingly, price-sensitive marijuana purchasers might prefer to take the risk of buying from illegal sellers even after dispensaries become more widespread. And state law forbids dispensaries to sell to people under the age of 21, some of whom will continue to buy their weed from illegal sellers.

Accordingly, at some point the market for marijuana in New York will equilibrate with a mix of state-licensed and illegal sellers. So why is it taking so long? A big part of the answer is that New York doesn't allow just anyone to open a dispensary. Among other things, the selection criteria for running a dispensary set forth in the regulations require that "justice involved" individuals have a controlling interest in the business. Someone is "justice involved" if they or a close relative were convicted of a marijuana offense before the enactment of recreational marijuana legalization. Non-profits that serve the public interest in various ways defined by the statute and regs can also operate dispensaries, but the NY law, as written and implemented, gives a preference to people who were caught up in the war on drugs. Is that legal? Is it sensible? Let's consider.

Wednesday, January 25, 2023

Of Dad, Death, and Dying With Dignity (Or the Lack Thereof)

 By Eric Segall

My Father Maurice Segall died a little over a week ago in the middle of the night in his sleep at the age of 93. Tragically, that was the only peace my father found over the last few months of his life. His death has been very difficult for all of his family but I wanted to write this blog post because of what I saw towards the end of his life. 

Tuesday, January 24, 2023

The Debt and the Debt Ceiling Have Virtually Nothing to do with Each Other

by Neil H. Buchanan

One of the many, many problems with the current discussion surrounding the Republicans' renewed threats to take us all hostage via the debt ceiling is that it invites everyone to spout off about anything that comes to their minds about debt, deficits, and spending.  These things have virtually (and to be clear, I mean as close as possible to literally) nothing to do with each other.

As I discussed in a column last week, people conflate government shutdowns with a possible debt default, which is also deeply problematic.  What makes the "I'm just gonna say whatever comes into my head about government and money" response especially annoying, however, is that it opens up an unfiltered fire hose of statements based on confused thinking, uninformed priors, and an inability to separate the past from the present.  Please allow me to illustrate.

Monday, January 23, 2023

SCOTUS Leak Investigation and the First Amendment

by Michael C. Dorf

Much of the public discussion of the inconclusive Marshal's Report of the investigation into last year's leak of the draft opinion in Dobbs has focused on a question that raises doubts about its thoroughness and fairness: why were the Justices not subject to the same requirements--such as signing affidavits--as law clerks and other Court personnel?

Marshal Gail A. Curley, who headed the investigation, stated in response to this question that she "spoke with each of the Justices, several on multiple occasions" and "followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits."

Maybe that's all there is to it, but given the status of the Marshal relative to the Justices versus her status relative to other Court personnel, it's also possible that she was predisposed not to push too hard to find leads that might implicate a Justice. 

I don't have much to add to this line of inquiry. Hence, I'll focus today's essay on leaks as such. Although the Court's statement introducing the Marshal's Report describes the Dobbs leak as "a grave assault on the judicial process," the Court's precedents regarding unauthorized disclosure of information suggest a more ambivalent position.