Disney v. DeSantis, Trump v. Hawaii, and Citizens United v. FEC

 by Michael C. Dorf

The lawsuit by Disney against Florida Governor DeSantis makes constitutional claims under the Contracts Clause, the Takings Clause, and the Due Process Clause, as well as two First Amendment claims. In this essay I focus on the fourth cause of action, which strikes me as the central claim and certainly the one that the narrative portion of the complaint most clearly tees up: that the legislation DeSantis promoted and signed to abolish the Reedy Creek Improvement District (RCID) and replace it with an institution beholden to the governor was retaliation for Disney's exercise of its First Amendment right to free speech--in particular, its criticisms of the so-called Don't-Say-Gay law. Disney's factual claims seem unassailable. Its legal position is also strong, but it intersects interestingly with two highly controversial SCOTUS cases.

In today's essay, I'll compare and contrast Disney's First Amendment claims with Trump v. Hawaii, which upheld Donald Trump's anti-Muslim travel ban, and Citizens United v. FEC, which invalidated limits on corporate campaign speech. As I explain below, Disney should win under both the precedent as is and even as one might wish to see the First Amendment construed more sensitively to worries about undue corporate political influence.

Use Your Words (but not really): The Problem of Eggshell Conservatives and Disney

by Neil H. Buchanan 

In my most recent Dorf on Law column, "Law Schools Should Continue to Develop Critical Thinking Skills, Not Become Finishing Schools," I revisited what I (and many, many other people) view as the core purpose of law schools and higher education more generally: not memorizing codes, not becoming "practice ready," not "useful" majors or courses, and certainly not presuming that students do not know that the behavior that is expected in a court of law or in the workplace is not the same as on campus.  No, as the title of the piece makes clear, the core purpose is to teach students to think critically.

After I wrote that column, I suddenly thought to myself (using my mock-horror inner voice): Oh crap, I just used the word 'critical'!  In Florida!!  And I'm a public employee!!!  Oh, the horror.  What, oh what, shall I do?

Indeed, in addition to using the word "critical" in the title of that piece, I used it three times in the column itself -- positively each time.  Why might that be a problem?  Is it not obvious?  The movement against (a cartoonishly distorted version of) Critical Race Theory that first gained traction in the 2021 Virginia Gubernatorial election has gone national, with Florida's Republican governor and legislature embracing that issue as part of their anti-being-awake thing.  Indeed, the guy who dreamed up the idea of making CRT a bogeyman has been appointed by my governor to the board of a campus of the state university system, where they are running a beta test on how to turn the Sunshine State's university system into a lap dog of the far right.

But my purpose in this short column is not to go into detail about the future of education in Florida.  Instead, I want to observe that nothing less than "conservative political correctness" has taken hold in the Republican Party at all levels in this country.  The party that routinely derides liberals for claiming victim status and that calls left-leaning college students "snowflakes" is projecting bigly.

A Long Day's Journey into Legal Realism

By Eric Segall

There was a time when I thought constitutional law was a combination of text, history, precedent, and, of course, the personal values of the justices. I now know that Erwin Chemerinsky was right when he wrote in a famous Foreword to the Harvard Law Review that "constitutional law is now and always has been about values....There is nothing else." I began to learn that hard lesson when I was a young lawyer at the United States Department of Justice. 

I was the lead attorney in a federal case defending various federal programs giving different kinds of aid to public and private schools, including religious schools. A large part of the case involved the constitutionality of the federal government giving equipment and materials other than textbooks to private religious schools. The  problem for my case was quite simply that the Supreme Court had unequivocally held in Wolman v. Walters and Meek v. Pittenger that the government was not allowed to provide religious schools any educational equipment or materials other than secular textbooks (bus transportation to and from school and diagnostic testing were also allowed). When I first took over the case, I did not see a line of argument distinguishing those binding cases.

I represented the United States Department of Education, the lead defendant in the case, while the other defendants, the State of California, the San Francisco Unified School District, and the Archdiocese of San Francisco, were represented by extremely experienced counsel at major law firms. In addition, the United States Catholic Conference was allowed to intervene in the case, and their lawyer was a leading church/state litigator for Williams & Connolly, a prominent Washington D.C. law firm. Cross-motions for summary judgment were due in a month and the judge had set aside a whopping 60 minutes per side for oral argument. I had not yet had a single oral argument in any court but the judge insisted he wanted to hear from only one defendant, and it had to be the lawyer for the United States Department of Justice. And that lawyer was me.

Law Schools Should Continue to Develop Critical Thinking Skills, Not Become Finishing Schools

by Neil H. Buchanan

Yesterday was the last day of classes at my law school, which is as good an excuse as any to reflect on some of the timeless issues that educators face in every area of learning.  Here I want to consider two related questions: What do law schools do? and What should law schools do (and not do)?

As I teased in the title of this column, law schools are not -- and do not need to be -- finishing schools, teaching students to be well-behaved young ladies and gentlemen.  We law professors are, however, instilling habits and values that matter both to the legal profession and to society at large.

Who might imagine otherwise?  The answer might surprise you.

Statutory Stare Decisis: Mifepristone Meets Sunday Mail Delivery

by Michael C. Dorf

The Supreme Court's stay order in Danco Labs v. Alliance for Hippocratic Medicine both restores the status quo ante (under which mifepristone can be distributed in the mail) and provides an opportunity for an orderly consideration of the plaintiffs' claims.  However, because the case has been sent back to the Fifth Circuit--which already upheld (in a stay posture) the part of Judge Kacsmaryk's preliminary ruling that invalidated the FDA's 2016 expanded access to mifepristone, there is a fair chance that the plaintiffs will prevail again in the lower courts, thus ensuring that the case returns to the Supreme Court. The expedited appeal could mean a ruling in a few weeks or at most months, with a cert petition soon to follow, and thus a SCOTUS oral argument next Term.

If and when the case returns to the Supreme Court, there are multiple grounds on which the plaintiffs should lose. My personal favorite is standing. The main route to standing offered by the doctors and other health-care professionals who are members of the plaintiff organization goes like this: mifepristone and expanded access to it without the requirement of visiting a doctor for its dispensation lead to some number of complications and side effects; some of those will result in hospital visits; some of the patients who take mifepristone will show up in hospitals and doctors' offices where the plaintiff members work; at that point, one can say that these doctors' patients will have been harmed by mifepristone (and expanded access to it), so the health care professionals have standing because the approval implicates their (future) patients.

By this logic, any doctor anywhere has standing to challenge not only FDA approval of any drug alleged to be unsafe. Doctors, nurses, and other health care professionals by this route gain standing to challenge any unsafe activity that they allege has been improperly regulated. For example, pursuant to the Flammable Fabrics Act (FFA), the Consumer Products Safety Commission (CPSC) issues regulations. Under the standing theory advanced by the plaintiffs suing the FDA to dis-approve mifepristone, any doctor in the country should be able to sue the CPSC challenging any FFA-based regulation on the ground that it insufficiently protects against fire risk, leading to the possibility that someone could be burned and end up in a hospital where the plaintiff doctor needs to treat them. Standing would be unlimited under this approach.

And that's to say nothing of the utter disingenuousness of a group of people who oppose abortion on religious and embryo/fetus-protective grounds pretending to be concerned about the health and safety of a means of abortion. To be sure, there is some analogy here to lawyers who oppose the death penalty regardless of how it is performed suing to block particular execution methods as unconstitutionally cruel and unusual. But at least those lawyers want what's best for their actual clients--namely, to spare them from execution. It would be more honest if the Alliance for Hippocratic Medicine sued on behalf of zygotes, embryos, and fetuses rather than the pregnant people whose abortions they want to prevent.

I hope that if/when the case returns to SCOTUS, the Court will dismiss on standing grounds. In the meantime, because the Fifth Circuit has already shown itself willing to indulge the far-fetched standing theory of the plaintiffs, I want to say a word about the merits--in particular about statutory stare decisis.

The Pardon Power and Anti-Circumvention: A Trump Imprisonment Follow-Up

by Michael C. Dorf

I recently wrote a Verdict column on whether a person imprisoned on conviction of a crime can serve while in prison and an accompanying blog post on whether, if such a president were imprisoned pursuant to a state criminal conviction, he could successfully challenge his custody through a federal habeas corpus petition. Comments I received via email and on social media raised related questions about circumvention. In one example, a president might use the 25th Amendment to circumvent limits on the pardon power. In the other, a president might use the pardon power to circumvent a provision of Section 3 of the Fourteenth Amendment.

Let's start with a very brief recap. Suppose Donald Trump is tried, convicted, and sentenced to prison for a crime but then wins the presidency. Depending on the nature of the crime, he could be subject to impeachment and removal for it. He also could be deemed "unable to discharge the powers and duties of his office" within the meaning of the 25th Amendment. However, as I noted in the column, neither impeachment nor the 25th Amendment is self-executing. To remove an imprisoned Trump from office via either route would require the cooperation of many more Republicans (including cabinet officials Trump will himself have vetted precisely for this purpose with respect to the 25th Amendment) than are likely to come to his aid.

Thus, if Trump is in prison for a state offense--and thus beyond the reach of the presidential pardon power--there he would stay even as president, unless he could bring a successful state court case or a successful federal court habeas challenge of the sort I discussed in my earlier blog post. But what if Trump is in prison on conviction of a federal offense--in particular on what I regard as the most serious potential charges: his efforts to undercut the 2020 election result and to incite an insurrection? Could Trump pardon himself?

Do Law Schools Truly Have to Worry About Students Not Being Able to Handle Real-World Disagreements?

by Neil H. Buchanan

I have continued to dig into the controversy that erupted after some students at Stanford Law School temporarily disrupted a talk last month by a visiting speaker (an extreme right-wing judge from the 5th Circuit).  Thus far, I have published three columns on the topic: the first on Verdict last Thursday, the second here on Dorf on Law last Friday, and the third today on Verdict.  The column that you are reading right now is thus the fourth in an unplanned series, with another likely coming next week.

There is no need to summarize all three of those columns here, so I will limit myself to saying that today's Verdict piece can be boiled down in significant part to this:

Reader: How should a university respond to a situation like Stanford's, where a national arch-conservative trolling operation contrived a controversy for national political consumption?

Me: Do you know how Stanford in fact responded?

Reader: Yes, they punished the one person who did the right thing (who was also the least powerful person in the room) and repeatedly apologized to the judge who escalated the whole thing and who acted like a petulant child and a bully.

Me: So the answer to your question is ... something other than that.

Here, I want to explore two issues that are relatively less important than the larger issues at play but which have been highlighted by Stanford's bungled response.  The latter of those points is rather contrarian, which means that I am especially enjoying thinking it through.  Here is a cryptic version of my bottom line: Maybe our students already know how to be grownups, but they rationally choose during law school not to be.  But that is my final point.  What of the first?

What We've Got Against Trillion-Dollar Platinum Coins

by Neil H. Buchanan and Michael C. Dorf

As we explained in an essay on this blog late last month, we have a new academic paper available in which we consider the source of and limits on the authority of government officials to delay curing constitutional (and other legal) violations upon discovering them. As we noted, the last part of the paper extends the analysis beyond questions that involve winding down (rather than immediately ceasing) ongoing violations to circumstances in which government officials might be obligated to initiate a new course of unconstitutional (or otherwise illegal) action. Our principal example of the latter circumstance concerns the obligations of the president in the period leading up to a potential standoff with a Congress that refuses to raise the debt ceiling--a not-at-all-hypothetical period in which we currently find ourselves living.

Our prior essay teased an upcoming Verdict column on a piece of the analysis that is only tangential to our article: the recurring suggestion that the U.S. might be able to circumvent a debt ceiling crisis by minting one or more platinum coins denominated in the trillions of dollars. We have now written that Verdict column, which puts front and center our explanation why the platinum coin gambit would be unlawful. As we explain in the column, our prior work (both collectively and individually) already offered reasons why the platinum-coin gambit would likely fail, including that it doesn't even circumvent the debt ceiling and that it runs afoul of a core principle of administrative law requiring that an agency interpretation that fills a statutory gap must be reasonable.

In our article and the new Verdict column, we offer two further--and in some sense more fundamental--reasons why the platinum coin ploy fails, both relying on a careful reading of the relevant statutes. 

(1) The Federal Reserve has discretion whether to accept as a deposit even "lawful money," so in order for the platinum coin gambit to succeed, the Fed would have to cooperate, which would embroil it in a highly political battle and thus potentially do long-term damage to Fed independence. For that reason (and others), it is doubtful that the Fed will play along, as long as there is any other option available. And as it happens, our long-preferred response to a debt ceiling impasse would give the Fed the best (among bad) options, as we explain again below.

(2) When one reads the legislation that authorized the minting of platinum coins, it becomes clear that trillion-dollar platinum coins are not in fact "lawful money." Read in context, the statute unmistakably authorizes the minting of "commemorative" platinum coins only, and even then only when offered for sale to the public. This is not a matter of reading legislative history but the legislation itself. And of course this makes sense. The reason there are no denominations listed for platinum coins, unlike for other coins, is that commemorative coins don't circulate. Thus, their nominal face value has nothing to do with their sale price. Simply put, they have some value but they are not money in any sense that allows the Fed to accept them to credit the Treasury's account.

In the balance of today's essay, we want to answer an objection we imagine coming from someone who shares our broader view that congressional Republicans are acting grossly irresponsibly by toying with the debt ceiling. The objection goes more or less like this: Why do you guys (Buchanan and Dorf) want to undercut the availability of the platinum coin option? Even if it isn't your favored approach, shouldn't you support it as a backup? Any port in a storm, right?

True Threats, Free Speech, and Federalism

 By Eric Segall

Tomorrow the Supreme Court hears oral arguments in Counterman v. Colorado, which raises the issue whether the first amendment prohibits the State of Colorado from prosecuting people for stalking under an objective test that does not require proof that the defendant subjectively intended to harm his victim (disclaimer: Mike and I both signed on to a brief in the case on the side of the state). 

The defendant in the case sent numerous threatening and harassing social media messages to the plaintiff which would have objectively scared just about anyone. Even after the victim repeatedly blocked him, he found a way to send her more vile communications. Nevertheless, there is a circuit split over whether a person can be punished for this kind of abuse without proof of specific intent to harm. For the reasons discussed below, the first amendment should not disable state governments from punishing true threats where an objective observer taking into account all of the circumstances would believe he or she is at risk.

Trolling TROLP

by Diane Kemker

On April 15, 2023, the Washington Post published a shocking piece under the title, “The controversial article Matthew Kacsmaryk did not disclose to the Senate.”  Taking the facts reported in the article as true, Kacsmaryk, while working as an attorney at the First Liberty Institute, wrote an article that disclosed his extreme right-wing views about trans-affirming medical care and abortion in no uncertain terms. He then sent that article off, as one does, to a law review of which he had been an editor while a student, the Texas Review of Law & Politics (TROLP). Perhaps unsurprisingly, this secondary journal happily snapped it up. But once Kacsmaryk was nominated for a federal judgeship, which would require disclosure of all his published work, he contacted the journal and instructed them to remove his name as the author, and to substitute the names of two junior colleagues at First Liberty - whose names had not appeared on the draft the journal accepted (or even in its footnotes, as contributors).

The point of the Washington Post piece was to highlight Kacsmaryk’s clear attempt to hide his authorship of this piece, so that he would not have to disclose it as part of his Senate confirmation process. You can draw your own conclusions about what this tells us about Kacsmaryk the would-be (and current) jurist.

My point here is different. The story WaPo tells is not just about an ambitious would-be judge. It also discloses serious academic and professional misconduct by almost everyone involved, and it calls for discipline at both the law school and state bar level. The law review editors who participated in this academic fraud and cover-up, the attorneys who passed off the work of another as their own upon the unsuspecting reading public, and the faculty who failed to prevent this - all should come in for serious criticism (at least). It is not too late for the University of Texas Law School to correct this mistake: to de-publish the article in any online format, to issue a correction properly attributing its author, and to consider appropriate discipline for the students involved. (Just this month, the Texas Supreme Court ruled that Texas public universities can revoke degrees after graduation for academic misconduct.) The Texas Bar should commence an investigation. At the very least, the administration of Texas Law should issue a public statement condemning what has happened and committing itself to making sure it never happens again.

Fabricated Outrage and the Right's Attack on Higher Education

by Neil H. Buchanan

By now, almost everyone who would be inclined to read a blog like Dorf on Law will have heard some version of a story about the outrage du jour in the American right's ongoing effort to subvert higher education.  This one comes out of an incident at Stanford's law school, which made it especially useful for anti-liberal propaganda purposes.  Even so, a few reactions to the story have been thoughtful and have even used the controversy to make good points, such as my Verdict colleagues Vik Amar and Jason Mazzone's piece earlier this week (the first of a two-parter, with the second part not yet published), in which they commit the unpardonable sin of observing that "shouting down" a speaker is actually a nuanced issue.

I use the sarcastic phrasing "unpardonable sin" because the standard response to any situation in which left-leaning university students express their displeasure involves a chorus of people across the political spectrum harrumphing and saying that it is simply awful that any students would dare to express negative opinions about a speaker's views.  You kids get off my lawn!  (Except of course, the commentators do not own the lawns in question.)  Universities are supposed to be places to learn, these people say, so it is absolutely unacceptable for students to protest against ideas with which they disagree.  No room for nuance; no allowing for the possibility that it could be acceptable for young people to have opinions and push back on their betters; no skepticism that the videos that go viral have been edited to make the situation look as bad as possible for the protesters.

Soon after the Stanford story broke, I happened upon a piece in Slate by Mark Joseph Stern, who provided a much more complete story than was available in more mainstream publications (much less right-wing outlets).  I wanted to push his analysis further, so I published a fantasy piece on Verdict yesterday in which I imagined myself as the president of an institution of higher learning known as FU (Fair-minded University).  There, my purpose was to push back strenuously against the claims (from the hyper-reactionary federal judge at the center of the controversy, among others) that the Stanford protesters were a bunch of "coddled children."

The key takeaways from my column were: (1) that the judge in question was the most childish of any of the actors in that over-hyped drama, a shameless bully who apparently thinks that being invited to speak at a major law school gives him license to be a fucking asshole braying jackass and then whine about how he was treated; and (2) that the other students in the story, the members of the conservative law school club who invited the judge to speak, were acting like nasty, vindictive children.

Here, I want to ask whether my second point in that Verdict column matters.  That is, does the intent of those who invited the speaker to visit the campus in fact change how we should think about the overall controversy?  I will also point out that my explanation for how the incident began shortchanged another part of the story: a national organization's efforts to contrive controversies like this, not out of childishness but as a matter of strategic political warfare.

Justice Thomas, Frederick Douglass, and Constitutional Misinformation

 By Eric Segall

The news last week that Justice Thomas might actually prefer luxury yachts and private airplanes to RV's and Walmart parking lots, despite his many statements to the contrary, reflects a disconnect between truth and reality for Justice Thomas that has long plagued his constitutional opinions. I have documented these issues many times before on this blog. The tension between Justice Thomas's alleged originalism and textualism and his actual votes in many areas of constitutional law are well known to most legal scholars. But nowhere is this disconnect more prevalent than in his affirmative action opinions. 

Justice Thomas has never devoted any significant attention to the 14th Amendment's original meaning in his calls for judicially imposed color-blindness. It is highly unlikely that he will do so in June when he votes to end all affirmative action in university admissions, as he has done many times before. Even worse, as I previously documented, Justice Thomas has completely mischaracterized the views of one of his heroes, Frederick Douglass. This issue is worthy of a second look given that Thomas received from the same wealthy friend (read sponsor) a bible owned by Frederick Douglass and valued at $19,000 (a gift Thomas did disclose before he stopped disclosing gifts).

If Trump is in a Georgia Prison and also President, Can He Bring a Successful Habeas Corpus Petition?

by Michael C. Dorf

My latest Verdict column considers the question of what would happen if Donald Trump is tried, convicted, and sentenced to prison before January 20, 2025 but meanwhile secures the Republican nomination for President and either wins the election the conventional way or manages to secure the Presidency through Congressional approval and Supreme Court acquiescence in state legislative re-allocation of electoral votes based on bogus allegations of fraud.

My answer:

(1) If Trump is in prison on conviction of federal crimes he will attempt to pardon himself, and if that fails, he will resign the presidency, his VP will become President and pardon him, the VP will then nominate Trump to be VP, Congress (in GOP control if Trump is President) will approve the selection, at which point the President will resign, Trump will become President again, Trump will nominate the former VP/President as VP again, and Congress will approve that selection too. I call this the "musical chairs" approach to evading a presumed limit on self-pardons.

(2) However, if Trump is in prison on state charges, no Presidential pardon could do him any good, because the President's pardon power only applies to federal offenses. In my view, being in a state prison (more likely in Georgia than in New York) would render Trump “unable to discharge the powers and duties of his office” within the meaning of the 25th Amendment, but because removal on that basis would require the cooperation and initiative of his own VP and Cabinet, he would end up being President while in prison. Crazy, right?

Sure, but now what? If Trump has been duly convicted and sentenced in Georgia, and his appeals were rejected before he became President again, could he argue that state imprisonment of the President is unconstitutional on Supremacy Clause grounds or the like? I think he could argue that, but even if the argument is persuasive, it's not clear to me that he could get past the limits that the courts and Congress have placed on federal habeas corpus relief for state prisoners.

What the Rule of Law Does Not Look Like: Impeaching a Supreme Court Justice When She Takes Office

by Neil H. Buchanan

One of the safest bets in recent years was that Republicans would conveniently drop the pretense that they believe in states' rights as soon as their manufactured Supreme Court super-majority handed them their long-sought repeal of Roe v. Wade.  Although the Dobbs majority's opinion claimed to be turning the issue back to the states, it was long obvious that the radicalized anti-women's-freedom movement would look for ways to nationalize bans and create ever more hurdles for women seeking to exercise their reproductive rights.

And that is what Republicans have done.  They are trying to prevent citizens of red states from traveling to blue states, to penalize friends and good Samaritans who help those pregnant people run the gauntlet of expensive and dangerous perils that Republicans are constantly erecting and updating, and so on.  And as Professor Dorf's column yesterday explained, Trump-appointed judges are now going completely rogue, trying to nationalize a ban on an FDA-approved (and unusually safe) drug that is used for abortions -- abortions, by the way, that take place long before an embryo becomes a fetus.  It will only get worse from here.

My focus today is not on abortion, however, but on the rule of law.  In particular, I want to focus on how the Republican Party has perfected the dark arts of using the legal system for their own ends and then making it impossible for Democrats to undo what has been done.  The current leading example of this dirty trick does, however, derive in large part from the politics of abortion.

Simple question: Can Republicans in the highly-gerrymandered Wisconsin legislature impeach the person who won a landslide victory in a statewide Supreme Court election last week -- a person who is likely to join with other non-Republicans on that court to end gerrymandering and to invalidate a statute that purports to ban abortion in the state?  Simple answer: It is unclear, but if they can figure out a way to do it, why would Wisconsin's Republicans not try?  Restraint?  Respect for the voters?  Please.

Judge Kacsmaryk's Tortured Readings

by Michael C. Dorf

Reading Judge Kacsmaryk's Good Friday ruling in Alliance for Hippocratic Medicine v. FDA, I had a sense of deja vu. At first I struggled to identify when I had previously felt this way. Then I remembered: it was when I read the memoranda produced by George W. Bush administration lawyers such as John Yoo and Jay Bybee rationalizing and justifying torture. Like those memos, Judge Kacsmaryk's opinion gives the unmistakable impression of aiming at a pre-determined result, with counter-arguments and contrary evidence treated as obstacles to be overcome rather than grounds for hesitation. Just as those of the Bush administration torture memos that were prepared by the Office of Legal Counsel (OLC) betrayed OLC's longstanding tradition of providing the President with objective analysis notwithstanding his policy druthers, so Judge Kacsmaryk's anti-abortion screed clothed in the garb of a judicial opinion betrays his oath to do equal justice.

Even so, in one way Judge Kacsmaryk's opinion is the exact opposite of the torture memos. Whereas Yoo, Bybee, and the other authors of the Bush torture memos in some places sought to sanitize waterboarding, stress positions, and walling with euphemisms such as "enhanced interrogation," Judge Kacsmaryk appears to go out of his way to use inflammatory language. In eleven places in his opinion, he labels doctors who prescribe abortion-inducing medication even in the earliest weeks of pregnancy as "abortionists." He uses some variant of "unborn" (modifying either "human" or "child") in fourteen places, including in a footnote that ostensibly justifies the choice by decrying use of the term "fetus" as "unscientific" because it refers only to one specific stage of development. And in five places he refers to persons seeking to end their pregnancies at the early stages at which mifepristone is effective as "mothers."

It is difficult to know whether, in fully adopting the lexicon of the pro-life movement in an opinion that ostensibly concerns whether the FDA satisfied its statutory obligations with respect to drug and safety, Judge Kacsmaryk was deliberately trolling the large majority of Americans who want medical abortion to remain legal, or whether, alternatively, he is so ensconced in his theocratic anti-abortion (as well as anti-LGBTQ) bubble as not to realize how intemperate his opinion is. It is unclear which is worse.

There are so many flaws in Judge Kacsmaryk's opinion that it would take a document roughly comparable in length to the opinion itself (67 pages) to consider them all. I'll limit myself to two issues: standing and the interpretation of the Comstock Act.

Lock Him Up! (A Dorf on Law Classic)

Note to readers: It is Good Friday, which I suppose I could offer as my excuse to run a Dorf on Law classic today.  But given that I am an atheist, that would be silly.  The fact is that I am severely jet-lagged, and the creative juices are not flowing.  So a classic it is.

As luck would have it, today's classic is almost eerily relevant to recent events -- not just the content of the column itself (indicting Donald Trump) but, tragically, with its lead-in referring to recent mass shootings.  The familiarity of it all is beyond heartbreaking.

In any event, I offer below my Dorf on Law column from August 6, 2019.

 

Lock Him Up!  

by Neil H. Buchanan

[Note to readers: The two mass shootings over the weekend continue -- quite rightly -- to consume people's attention.  I wish that I could think of something to add to the discussion, but for now, my thoughts are jumbled and my feelings are raw.  I have thus decided to write today on a different topic, one that is important but less immediate and less emotional.]

One of the most notoriously awful aspects of Donald Trump's campaign rallies in 2016 was the howling chants of "Lock her up!"  Indeed, the people who thrill to Trump's brand of ugliness so much that they decide to attend his speeches in person clearly reveled in those chants, relishing the two-minutes-hate pulsing thrill of imagining the hated Hillary Clinton being led off in an orange jumpsuit.

Reportedly, those chants continue to be part of the audience-participation show that is a 2019 Trump rally.  And we can certainly imagine that something like this will become part of the Trump cult's response to whomever is the Democratic nominee next year.  After all, they started the "Send her back!" baying when Trump decided to attack U.S. Rep. Ilhan Omar.  Name a possible Democratic nominee, any of them, and tell me that the Trump crowds will not do something like that again.  If one is honest, it is impossible to deny that this is inevitable.

Does it matter what the content of the chant is?  And would it make anti-Trump voters equivalently awful if they were to start shouting "Lock him up!" at campaign events?  I think that the answers to those questions are yes and no, respectively, but they are certainly interesting questions that deserve some respectful consideration.  What do you do when an unindicted criminal is in the White House?

Should Catch-and-Kill Agreements Be Enforceable?

by Michael C. Dorf

Just over a couple of weeks ago, I asked, in an essay on this blog: How plausible is the Melania defense? In order to elevate the New York crime of falsifying a business record from a misdemeanor to a felony, I noted, the prosecution must prove that the defendant falsified the record for the purpose of covering up another crime. I explained that Donald Trump's lawyers could be expected to argue (as some of his defenders had been saying publicly) that Trump's motivation was personal: people who have extramarital affairs don't want their spouses to find out; thus, Trump could claim that he wasn't attempting to disguise Michael Cohen's election law crimes but only to keep his wife from learning of his affair. As I explained in the essay, this defense would not be very plausible, so long as covering up a crime was a motive, even if there also was a personal marital motive.

The actual indictment unsealed on Tuesday makes clear that what I've called the "Melania defense" won't fly on the facts. The direct payments to Stormy Daniels (aka "Woman 1" in the indictment and "Stephanie Clifford" in real life) only came about after a deal to purchase the rights to the Daniels story from the National Enquirer (via AMI CEO David Pecker) fell through. That part of the narrative accompanying the charging document states that there is an audio recording of this turn of events. So there's no way that the Melania defense can succeed.

To be sure, there are other possible lines of defense and attack for Trump and his lawyers. Although DA Bragg says that other people have been charged and convicted for felony business record falsification using federal crimes as the underlying crime being covered up, the NY Court of Appeals has never ruled on whether that's permissible. I don't see a good reason why it shouldn't be. The statute says "another crime"--which is generic. Perhaps significantly, New York's penal law generally lists "offenses," so the term "crime" does not seem limited to state offenses. And anyway, it appears that Bragg's office will also present evidence that one of the other crimes was state tax fraud, for which the state/federal issue doesn't arise.

In any event, let's put aside the specifics of the case against Trump to focus on what was supposed to be Plan A: Pecker, via the National Enquirer/AMI was going to buy the rights to unflattering stories about Trump not for the purpose of publishing them but to "catch and kill" those stories. Should catch-and-kill agreements be enforceable?

The "Concerned Non-Trumpist" Response to the NY Indictment Hints at a Successful (albeit thankfully bloodless) Coup in 2024

by Neil H. Buchanan

The endless repetition of the claim that the Trump indictment in New York is "unprecedented" annoyingly elides the fact that there is a reason for the never-before-seen situation in which we find ourselves -- actually two reasons: (1) Donald Trump is almost uniquely corrupt and so is uniquely susceptible to criminal indictment, and (2) the "almost" in #1 is Richard Nixon, who received a preemptive pardon.  Are we surprised that Harry Truman was never criminally charged?  Or, notwithstanding all of his other faults, James Buchanan (no relation)?  Taft?  Monroe?

The one thing that one would hope to see from US Senators who are not bomb-throwers is restraint in the face of political volatility and uncertainty.  Even so, it has become an insta-conventional wisdom among those conservatives who think of themselves as moderates that the Trump indictment was somehow unwise.  Thus we have two extremely conservative senators, Joe Manchin and Bill Cassidy, weighing in on the Trump indictment in the most annoying way possible, as reported in a New York Times news article under the infuriating headline: "2 Pro-Impeachment Senators Question Motives Behind Trump Indictment."

This is nonsense, but it is much worse than the already-bad immediate nonsense.  As the headline to this column indicates, I believe that this kind of political response offers insight into the likelihood that the 2024 election will be given to the Republican candidate in a bloodless coup.  This might appear to be not so much a counter-intuitive claim as simply a non sequitur, but appearances can be deceiving.  Even as the legal system is holding up very well to Trump's depredations, the reactions of political leaders including Manchin and Cassidy show how many of them might go along with a rather simple coup scenario 21 months from now.

Federalist Society Judges Acting Badly

 By Eric Segall

Leonard Leo's picks for lower court judges during the Trump administration were overwhelmingly white and male (with a few Asians thrown in). Almost all of them were associated with the Federalist Society either in school, as lawyers, and/or as judges. Although Leo (via Trump) nominated some fine people (Judge Kevin Newsom of the 11th Circuit, for example), many of his selections have also proven to be, and predictably so, awful. These men have joined other Federalist Society-adjacent judges appointed by previous Presidents to fight the culture wars both on and off the bench in ways that tar the federal judiciary with charges of partisanship and, in some cases, outright and unnecessary cruelty. Here are just a few of their stories and then a few thoughts on why these judges are acting so badly. All of the judges discussed herein, whether chosen by Leo during the Trump years or by other Federalist Society-adjacent lawyers during previous Administrations, have Federalist Society ties.

If the Trump Indictment in NYC is Political, It's Bad Politics

 by Michael C. Dorf

If I had to rank the criminal charges Donald Trump could realistically face and/or already faces from most serious to least serious in terms of the harm to the public, they would be:

(1) Federal charges relating to inciting insurrection;

(2) Georgia state charges relating to attempting to intimidate/interfere with election officials;

(3) Federal charges for deliberately concealing mishandled classified documents;

(4) New York State charges for falsifying business records in order to conceal evidence of other crimes.

Note that I have listed only those crimes for which there appear to be active criminal investigations. I have not included direct federal charges for election law violations with respect to the payments to Stormy Daniels that apparently form the predicate for New York charges that were filed against Trump on Thursday of last week. (We don't know exactly what the charges are yet.)

Nor have I included charges for obstruction of justice with respect to the Mueller investigation or for obstruction of Congress with respect to the investigation that led to Trump's first impeachment. Where exactly those would go on my list is not entirely clear, but they're all more serious than the charges that likely comprise the indictment that was issued last week. Indeed, even if we stick to falsifying business records, the sorts of shenanigans that the Trump organization performed and for which the organization was found guilty seem more serious than the crime for which Trump was indicted.

Thus, of the kinds of charges that could be credibly filed against Trump, over half a dozen concern forms of wrongdoing that are more serious--both in terms of their damage to the Republic and as evidence of Trump's wickedness--than the charges that were actually filed. Perhaps some of those other kinds of charges will soon be filed and Trump will be tried and convicted on them, but until that happens, we find ourselves in a very odd place.

Federal Judge Says Dobbs Means Arkansas Can Criminalize Adultery, Fornication, and Masturbation

 by Michael C. Dorf

With all of the attention understandably being paid to the indictment of Donald Trump, a major district court decision announced yesterday was likely overlooked. The ruling in ACLU of Ark. v. Griffin concerns a lawsuit against the Arkansas Attorney General. The ACLU of Arkansas sued to block enforcement of SB 4592, the state law enacted last month that forbids (and authorizes felony imprisonment for up to five years for) "deviant sexual practices that were constitutionally proscribable in 1791, 1836, and/or 1868" (the respective dates of ratification of the Bill of Rights, Arkansas statehood, and the ratification of the Fourteenth Amendment). The complaint alleged that "deviant sexual practices" is unconstitutionally vague and that, if construed to include all sexual practices deemed deviant at any or all of the dates listed in the statute, would encompass clearly protected practices such as same-sex sodomy.

In an opinion partially granting and partially denying the ACLU's motion for a preliminary injunction, U.S. District Lee Rudofsky agreed with the plaintiffs that SB 4592 could not be constitutionally applied to "practices such as sodomy that the Supreme Court has (whether rightly or wrongly) already deemed constitutionally protected," citing Lawrence v. Texas, but "remains valid with regard to those practices that were clearly constitutionally proscribable at the relevant dates." By including "clearly" in that aspect of his denial of injunctive relief, Judge Rudofsky wrote, "today's order protects against any potential for unconstitutional vagueness."

According to the district court opinion, what practices does SB 4592 validly proscribe? Judge Rudofsky's "not-necessarily-exhaustive catalogue" listed: "bigamy, incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." Does that list sound familiar? It should. The judge expressly borrowed it from Justice Scalia's dissent in Lawrence. Justice Scalia's list also included same-sex marriage, but Judge Rudofsky explained that, "in light of the Supreme Court's not-yet-overruled holdings in [Lawrence] and Obergefell v. Hodges, 576 U.S. 644 (2015), sodomy and same-sex marriage cannot constitutionally be proscribed, even though they fall within [the statute's] proscription of deviant sexual practices that were proscribed at all relevant times."

Although the ruling would seem to imperil not only masturbators, that aspect of the law and ruling have drawn the most attention, perhaps because of public statements by Arkansas Governor Sarah Huckabee Sanders. When asked whether, and if so, how the state would enforce the prohibition, the governor (who recently signed the legislation at a ceremony at which she was flanked by anti-masturbation activists) answered a different question, namely what purpose the law serves. "Just as I'm grateful to my mother for not aborting me and therefore we ban abortion, I'm equally grateful to my daddy for not spilling his seed and preborting me."