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.

Friday, January 20, 2023

Only the Current Level of Insanity Could Let Republicans' Tax Policy "Ideas" Fly Under the Radar

by Neil H. Buchanan

Yesterday, in what I admitted was a rather grumpy column, I waded back into the muck of the debt-ceiling debate.  I made it clear up front that there is nothing important about technically reaching the statutory debt limit this week, because the impending catastrophe will happen only if the Treasury Department exhausts its so-called "extraordinary measures," most likely in late Spring or early Summer.  Even so, it matters how the debate is framed over the coming months, and readers can be assured that both Professor Dorf and I will not be able to avoid writing again and again about the debt ceiling.

Today, however, I want to turn to one of the most basic, old-fashioned seitan-and-potatoes political issues out there: taxes.  If the Republicans who are threatening to blow up the global economy by refusing to adjust the debt ceiling were truly interested in "fiscal sanity" of any kind, they would be talking sensibly about taxes and spending.  Instead, they are making vague threats about spending cuts while refusing even to consider tax increases to address what they claim are horrible deficits.  And of course, their first order of business this month (after ritually humiliating Kevin McCarthy for a solid week) was to defund the police -- specifically the tax police, because the IRS is the federal law enforcement agency that Republicans most love to hate.

If their threats to take the economy hostage were not in play, we would all be talking about what Republicans do and do not want to do regarding taxes.  And although we can put their tax policy preferences in the category of "at least not tantamount to terrorism, unlike their debt ceiling plans," their tax plans are truly terrible.  I referred to their "tax policy 'ideas'" in the title of this piece, and the scare quotes are quite apt.

Here, I will discuss a recent interview of a purportedly reasonable Republican member of the House, as a window into just how far off into la-la land one of America's two parties has gone.  This is not governing.  This is at best wishful thinking.  At best.

Thursday, January 19, 2023

It Matters that the Debt Ceiling "Debate" is Being Left to Poseurs

by Neil H. Buchanan

References to "Groundhog Day" cannot possibly do justice to the absurdity of the ever-returning debt ceiling madness, but I have not come up with anything better.  Maybe "the 'Groundhog Day' of 'Groundhog Day'"?  No, probably not.  In any event, having recently recovered from another bout of Covid-19, I have had more than enough of repetitive traumas.  But here we are, beginning yet another iteration of debt ceiling inanity.

There has been a flurry of public discussion about the debt ceiling in the last couple of weeks, for two related reasons.  First, what we can now accurately call the "hostage-takers' caucus" -- also known as virtually the entire Republican Party -- announced loudly and clearly that they are planning to use their new House majority to threaten to force a US government default unless their demands are met.  It does not matter how slim their majority is, or how often pundits and journalists pretend that there are "moderates" among House Republicans, because everyone on the right is all in on this murder-suicide pact.

Second, today is the day that the federal government hits the official debt ceiling.  Or maybe that was yesterday, not that it matters.  This has led to the usual resurgence in media requests for me to go on TV or the radio and explain yet again what all of this means and does not mean.  This week, however, I am having none of it.  Even though this is an insane situation with which I will surely have to engage, what is happening right now is utterly unimportant.  The current chatter means nothing.

We are months away from the drop-dead date on which the Treasury Department will have exhausted its "extraordinary measures," and as always, the availability of those extraordinary measures makes the technicality of reaching the debt ceiling a non-event.  And by the way, those measures are a constant reminder that the entire notion of the debt ceiling is beyond silly.  (Side note: the Dorf on Law column found at the hot link in the previous sentence is from nine years ago.  "Groundhog Day" indeed.)

Clearly, I am in a grumpy mood -- about everything, I suppose, but especially about the debt ceiling.  Stipulating that I will surely re-engage with the actual arguments about the debt ceiling soon enough (far too soon, really), I will go meta in today's column, not debating but instead talking about the debate -- where the word debate most definitely deserves the scare quotes that I used in the title of this column.

My question of the day is this: Given that all political discussions are dominated by poseurs, charlatans, cranks, and even outright idiots, is it worse to have an irrational debate about the debt ceiling than it is to have the usual run of irrational debates about climate, taxes, critical race theory, cancel culture (which never existed and never will), foreign policy, public health, insurrection, or anything else?

Wednesday, January 18, 2023

Legitimating and Delegitimating Constitutional Theory (cross-posted on Balkinization)

by Michael C. Dorf

[N.B.  The following essay also appears on Balkinization as part of that blog's 20th Anniversary Symposium on the Present State of Constitutional Theory. I'm grateful to Jack Balkin for inviting me to participate and for permitting me to cross-post here.]

* * *

Constitutional law mostly comprises the rules and standards that courts purport to derive from the constitutional text, as informed by original understanding, historical development, judicial precedent, and normative considerations. I say “mostly” because courts are not the only actors who make constitutional meaning and some exceptionally clear constitutional rules need not be derived at all; no substantial contests arise over such questions as when a new Congress begins or the age requirements for being a representative, Senator, or President. Nonetheless, the Constitution is short; governing a modern country with a population of a third of a billion people is complex; and as Tocqueville observed long ago, “[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” Thus, the body of court-made constitutional law that fills in textual gaps is very substantial.

Constitutional theory is more abstract than constitutional law, but pinning down the precise difference poses challenges because the two realms overlap. We might say that constitutional theory concerns how to decide questions of constitutional law, but questions about the nature of interpretation, construction, and judicial review—which might be thought to lie at the core of constitutional theory—are also internal to constitutional law. Landmark cases from the early republic like Calder v. Bull and McCulloch v. Maryland are remembered more for their contribution to the debate over interpretation, construction, and judicial review than for their particular holdings. More recent examples abound as well. For example, an assertive conservative Court eager to move the law with respect to abortion, affirmative action, church-state separation, gun control, and more has lately sparked debates within constitutional law about originalism and stare decisis—matters that also figure centrally in constitutional theory.

Luckily, for most purposes it is not especially important to draw a sharp boundary between constitutional law and theory. Even so, as I explain below, those constitutional theories that have the greatest overlap with constitutional law will also have the greatest tendency to work as justifications of the work of the Supreme Court (whether or not they are intended for that purpose). Depending on one’s view of the Court’s work, that is either a feature or a bug of a constitutional theory.

Tuesday, January 17, 2023

Does a Trigger Warning Merely Indicate an Intent to do Harm? Hamline University Edition

 by Michael C. Dorf (***Updated with link to column)

My latest Verdict column discusses the saga of Erika Lopez Prater--the art history adjunct professor who lost her position at Hamline University as a result of the administration's craven capitulation to a Muslim student's complaint that Professor Lopez Prater's respectful display of a historically significant painting of the prophet Muhammad was Islamophobic. My column focuses on Hamline President Fayneese Miller's disingenuous claim that Lopez Prater wasn't "fired;" she was simply not renewed. As I explain in the column, this sort of claim (which administrators at other universities also make) only works because of the shabby treatment of the adjunct faculty who comprise a majority of instructors in American higher education.

Here I want to discuss one aspect of the merits of the complaint against Professor Lopez Prater. Part of what made the student's complaint unreasonable--and the university's reaction to it doubly unreasonable--is the fact that Lopez Prater warned students in advance, both in her syllabus and again in class, that a painting of Muhammad would be among the many works of art that would be displayed during the class. Any Muslim students who believed that viewing an image of the prophet was sinful could have averted their eyes or briefly left the classroom. In other words, Lopez Prater gave a trigger warning.

The offended student's allies did not consider that fact mitigating. The executive director of the Minnesota chapter of the Council on American-Islamic Relations (CAIR) said that “a trigger warning is an indication that you are going to do harm.” Now, to be clear, this is not the position of the national CAIR, which disavowed the local chapter's position. But that disavowal does not seem to have changed the position of the university administration.

In any event, what should we make of the claim that "a trigger warning is an indication that you are going to do harm?" Let's consider.

Monday, January 16, 2023

An MLK Day Classic: The Uses of Official Holidays

 by Michael C. Dorf

[In honor of Dr. King, today's short rerun comes from 2010 (originally posted here). I think it holds up pretty well, except in one detail. I had worried that celebration of Dr. King's legacy could lead to the false belief that racism in America was a thing of the past. No one paying attention could think that today--although, of course, a whole lot of people do believe it.]


The Uses of Official Holidays

Back in the 1980s, it was still politically acceptable for some prominent Republicans to oppose an official holiday recognizing Dr. Martin Luther King, Jr.  Prominent examples included Jesse Helms (well, duh), Ronald Reagan, and John McCain.  Reagan eventually capitulated and McCain changed his mind in that mavericky way of his.  Even at the time, it wasn't clear what angle there was for a politician in opposing the holiday, except for someone like Helms, whose appeal was unabashedly racist (in a way that Reagan's and McCain's were not).  Would anything really turn on whether kids stayed home from school, and department stores held mattress sales, on one day in late January?

Sunday, January 15, 2023

My Poem is Better Than AI's Poem

 By Eric Segall

Over at the originalism blog, which has been more than generous to my work over the years, Professor Michael Rappaport used the new ChatGPT to write a poem on constitutional originalism. Here it is:

The Constitution, a guiding light,

Originalism, a principle bright.

Friday, January 13, 2023

The Mild COVID Myth and a Missed Public Health Messaging Opportunity

 by Michael C. Dorf

For three years I managed to avoid getting COVID, but my luck ran out last week. Well, not really. My luck didn't change. My precautions did. Until August, when Sherry died, I was extremely careful, not wanting to expose her (with immunity weakened by chemotherapy drugs) to the virus. But since then, like a lot of people in the last year, I let my guard down. Maskless, I taught a class of 73 nearly-all-maskless students three days each week. I resumed eating in indoor restaurants. I went to a couple of Cornell hockey games and even to a sold-out Madison Square Garden to see the Knicks. So it was inevitable that I would be exposed.

My first day my symptoms were similar to a mild cold. In fact that's what I thought I had for that first day, as my rapid test came back negative. However, on the morning of day 2 I took another rapid test, which came back positive. My daughter, whose symptoms preceded mine by a couple of days and who had also tested negative at first, also tested positive, so I trusted the result. Even so, I thought, this will be no big deal. I'm fully vaccinated and multiply boosted, including with the bivalent booster. I'm still in my 50s, so not especially high risk due to age, and I'm otherwise in generally excellent health. No big deal, right?

Days 1 and Day 2 included some modest fever and chills, but still not as bad as I've had with the flu in the past--although honestly it's hard to be certain about a frame of reference, given that I went the previous three years without catching anything. I followed the protocol: I isolated in my bedroom (and meanwhile the daughter home for winter break who also tested positive was isolating in her room, while the other daughter home for winter break was catering to us while avoiding us, so that she could remain uninfected); I figured I would read a lot and nap and then I would go about my normal routine masked up on Days 6 - 10, per CDC guidelines. Then came Days 3 and 4, during which the fever and chills were gone, but I had the worst sore throat of my life.

A little Googling revealed that "worst sore throat of my life" is quite common with Omicron, especially with BA.5, although whether it's equally common with  XBB.1.5 or whatever sub-variant I caught is unknown to me. I do know that Days 3 and 4 were extremely unpleasant. (Today is Day 9. Now I have the remnants of a cough and slight congestion that feel like the tail of an average cold.)

I recognize that, compared to hospitalization, death, or long COVID, it looks like I did in fact have a mild case. I'm grateful for the vaccines that very likely played a role in helping me avoid a worse case. I'm not kvetching only for the sake of kvetching. Rather, I want to observe that the unpleasantness I experienced reveals a missed opportunity for public health messaging.

Thursday, January 12, 2023

Of Vermeule, Baude and Sachs, and Saving Originalism by Destroying It

 By Eric Segall

Professors Will Baude and Steve Sachs are at it again. In their Arthurian quest to convince the world that originalism is our law (it isn't), they had to jump into the fray to try and take on Professor Adrian's Vermeule's devastating critiques of originalism in his book "Common Good Constitutionalism." Their review in the Harvard Law Review takes on numerous aspects of the book but their main focus is on originalism. The last line of their review is the following: "[W]hile we can’t root for the book’s success as a manifesto, movement, or call to arms, we wish it were better as a book." I wish Baude and Sachs were either better originalists or not originalists at all.

One of the recurring themes of both Vermeule's critiques of originalism and my own is that once judges are allowed to discard the expected applications of those who ratified the relevant constitutional text, which most of today's originalists say is permissible, then originalism is essentially irrelevant to constitutional litigation and becomes a smoke screen for the imposition of modern-day judicial value judgments--they very thing originalists says they don't want. In my own review of Vermule's book, I said the following:

His critique of originalism is spot on when he says that originalism is an 'illusion' because there is no way to implement it without importing substantive normative values. Additionally, his point that New Originalism leads to results few in the founding generations of 1788 and 1868 would agree with is just true. As he so elegantly put it: 'It is a strange originalism indeed that would be unanimously voted down by the enacting generation.' I might have said 'not recognized' but the point is pretty much the same. Very few people in 1868 thought the 14th Amendment guaranteed equal rights for women; yet most originalists today through various sleights of hand reach that result. The result is correct, the theory is wrong.

Wednesday, January 11, 2023

The Scope of "Legal" Advice

 by Michael C. Dorf

On Monday, the Supreme Court heard oral argument in In Re Grand Jury. The case presents a not-especially-ideologically-loaded question: when a lawyer participates in a conversation with a client, how much of the conversation must be law-related for the attorney-client privilege to shield it? Lawyer Daniel Levin, arguing for the petitioner, urged a rule under which a conversation or document is protected if obtaining legal advice is a "significant purpose" of the conversation or document.

The rule in most U.S. states is that for the privilege to apply the "primary" purpose of the conversation or document must be legal advice. The U.S. argued that should also be the rule in federal court with respect to contested federal questions. Federal Rule of Evidence 501 directs federal courts to look to fashion a common law of privilege "in the light of reason and experience." That directive leaves SCOTUS free to choose a different rule from the one applied by state courts, but as Justice Sotomayor highlighted in her questioning, there should be at least a presumption in favor of adopting the approach of most states. After all, ex ante, neither lawyer nor client knows whether a case will end up in state or federal court. Indeed, even in federal court with respect to state substantive issues (as in a diversity or supplemental jurisdiction case), state privilege law applies. Harmonizing federal law with state law would thus facilitate planning.

Mr. Levin's chief responses to the uniformity concern were: (1) already some states (he gave Texas as an example) use the significant purpose test; (2) when one examines the state cases that recite the primary purpose test, one discovers that, as applied, it's more like the significant purpose test he advocates; and (3) after SCOTUS rules, many or most state courts will construe state privilege to follow the federal lead.

Much of the argument focused on the question whether "primary" is a preponderance (i.e., >50%) standard and, regardless, whether it should be quantified at all. In the end, I came away uncertain about how the Court will or should rule. Here, however, I want to focus on a point that struck me as odd: an unduly narrow definition of what counts as a lawyer giving legal advice.

Tuesday, January 10, 2023

The Football Conundrum When Life and Death Is No Longer a Metaphor

by Neil H. Buchanan

After the New Year's weekend of college bowl games, I was planning to write a column here on Dorf on Law exploring the increasingly callous attitude that our society is showing toward the health and futures of the very young men who play those games.

Before I could do so (and before I ended up having to take last week off for unrelated reasons), however, the dangers of playing American football suddenly became Topic A not just on sports shows but more generally across the country.  Last Monday, early in one of the most widely watched games of the NFL season, Damar Hamlin of the Buffalo Bills pro football team went into cardiac arrest and nearly died.

Several silver linings quickly emerged out of this scary situation, but the bigger picture is still quite depressing.

Monday, January 09, 2023

Three Decades of SCOTUS Rewriting the Constitution: The Rule of People or the Rule of Law?

By Eric Segall

I started teaching constitutional law in 1991 just a little over thirty years ago and also the same year that Justice Clarence Thomas became a Supreme Court Justice. We both have life tenure, which is wrong, but at least I have no power and little influence, whereas tragically, Justice Thomas has lots of both. 

Although the Constitution has not been amended since 1991, with the exception of the never-litigated 27th Amendment, constitutional law has changed dramatically since my first year of teaching and Thomas's first year on the Court. Below is a partial list of these major changes that demonstrates, when it comes to the Supreme Court, we are governed by the rule of people, not the rule of law. Keep in mind the list does not even include any cases dealing with criminal law or criminal procedure, where there have been many major changes as well.

Thursday, January 05, 2023

The Deal Hakeem Jeffries Should Offer Kevin McCarthy (or Any GOP Would-Be Speaker)

 by Michael C. Dorf

Thus far, Democrats have treated the Republicans' inability to elect a Speaker of the House as a spectacle to mock and (judging by my email inbox) a fundraising opportunity. Perhaps the time has come to get off the sidelines and offer a deal. 

What kind of deal? Democrats should agree to provide Kevin McCarthy (or another Republican) enough votes to secure the Speakership in exchange for abandonment of the Hastert Rule--under which no matter makes it to the House floor without support of a majority of the majority party. With the House arrayed as it is, the Hastert rule allows just over a quarter of the body--likely consisting of the most right-wing members--to block legislation that has support of the vast majority of the House. Eliminating the Hastert Rule would not undercut the Republicans' ability to stymie action if they are united, but it will make it much easier for must-pass legislation (like raising the debt ceiling) to pass.

Would such a deal be enforceable? Might McCarthy take the Speakership and then renege? That's possible, but it's also possible that McCarthy (who has no core convictions of any sort) might follow through because it would prevent the Trumpiest/FreedomCaucus-iest Republicans from hamstringing him in the same way they undid the Speakership of John Boehner.

Wednesday, January 04, 2023

What the Constitution Has to Say About the Election of a Speaker of the House

 by Michael C. Dorf

Here's what the Constitution (Art. I, Sec. 2) says about the election of a Speaker of the House: "The House of Representatives shall choose their speaker and other officers . . . ." That's it. Notice that the provision does not say how the House shall choose its Speaker, but the conventional wisdom--with which I agree--is that it requires a majority vote. That's because wherever the Constitution sets a different threshold, it does so expressly.

That said, if the House were to decide, say, that the winner of a plurality will be Speaker, that decision would almost certainly not be subject to judicial review (i.e., it would be a non-justiciable political question). However, the decision to choose by plurality (or some other mechanism other than majority-vote of the full chamber) would itself need to be taken by a majority of the House. Thus, so long as a blocking minority of House members opposes any particular choice for Speaker, the House will almost certainly not vote to adopt some other mechanism for choosing the Speaker.

Thus, most of what you have been reading and hearing about the selection of the Speaker is accurate. What about other congressional business?

Tuesday, January 03, 2023

What's Wrong (and One Thing That's Right) with an 11th Circuit Ruling Allowing a Florida School District's "Biological Sex" Restroom Policy

 by Michael C. Dorf

In Bostock v. Clayton County, the Supreme Court held that the prohibition on sex-based discrimination in employment found in Title VII of the 1964 Civil Rights Act encompasses a prohibition based on sexual orientation discrimination as well as on gender identity discrimination. Relying chiefly on the text of Title VII, Bostock's holding pretty clearly should also apply to Title IX (of the Education Amendment Acts of 1972), which forbids sex discrimination in and by federally funded educational institutions. The relevant language of Title IX does not materially differ from the language of Title VII. However, Bostock left unresolved important questions that are now working their way through the lower courts.

One such question is whether and how Bostock applies to the federal constitutional requirement of equal protection (rooted in the Equal Protection Clause of the Fourteenth Amendment with respect to state and local government actors, while rooted in the Due Process Clause of the Fifth Amendment with respect to the federal government). Since the 1970s, case law has subjected sex discrimination to (at least) intermediate scrutiny and sometimes to the seemingly stricter requirement of an "exceedingly persuasive justification."  The logic of Bostock appears fully applicable to federal equal protection, requiring that even outside the areas covered by federal civil rights statutes, sexual orientation discrimination and gender identity discrimination by government actors must satisfy the same test as conventional sex discrimination. However, because the word "sex" does not appear in the Fifth Amendment or the relevant portion of the Fourteenth Amendment, the strictly text-based argument from Bostock would need to be adapted at least a little to make it applicable to the constitutional context.

Bostock also left open questions of application, including the implications of the holding for sex-segregated public bathrooms and locker rooms. Writing for the majority in Bostock, Justice Gorsuch said that the Court did "not purport to address bathrooms, locker rooms, or anything else of the kind."

Last week, the U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, addressed both of these questions. In Adams v. School Board of St. Johns County, the court rejected a transgender boy's challenge under the Equal Protection Clause and Title IX to a school board policy that denies him access to the boys' bathroom at his Florida public high school. The policy relegates him either to a gender-neutral bathroom or the girls' bathroom, which the school policy and the court deem the bathroom that matches his "biological sex." As I shall explain, I believe the court erred badly in its bottom line in Adams, but it also got something important right about both equal protection and Title IX.

Monday, January 02, 2023

Is it Ever Okay to "Embellish" a Resume?

 by Michael C. Dorf

My latest Verdict column addresses three main legal issues arising out of the lies of George Santos: (1) what it would take for the House of Representatives to judge him unqualified or expel him (neither of which will happen because he's a Republican); (2) what legal jeopardy he may face for violations of campaign finance laws and possibly other laws; and (3) whether prosecuting him or a future candidate specifically for lying to voters would be consistent with the First Amendment, given that the Supreme Court has held that lies are not categorically unprotected speech. I conclude the column with a thought about where Santos fits in the contemporary GOP.

Here I want to consider the closest that Santos has come to justifying his lying: “I’m not going to make excuses for this," said Santos in an effort to make an excuse for his lying, "but a lot of people overstate in their resumes, or twist a little bit. … I’m not saying I’m not guilty of that."

There are at least three claims here: (1) that a form of behavior in which many people engage, ipso facto, cannot be very harmful; (2) that the misrepresentations of Santos--who lied about just about everything--are a form of mere overstatement; and (3) that being a member of Congress is the kind of job for which no harm comes from grossly misstating one's qualifications. I'll consider these claims in order.