Wednesday, May 31, 2023

Steve Shiffrin

by Michael C. Dorf

My dear friend and colleague Steve Shiffrin has passed away. Steve was a towering figure in First Amendment law, but he was so much more than that. He was a profoundly moral but never moralistic person. I apologize for what will be a somewhat disjointed and rambling remembrance. Steve contained multitudes.

Steve was a values pluralist and a rules skeptic. He did not think that the First Amendment could be reduced to a single value or encapsulated in formal rules. Nonetheless, his signature scholarly achievement--the bumper sticker or elevator pitch version of his oeuvre--can be summed up in a single word: dissent. Steve's books and articles made a powerful argument that the most important (though not the only) purpose of free speech and freedom of the press in a democratic society is to shield dissenters. Like Brandeis said (in his Whitney concurrence) about the framers' supposed view of liberty, Steve "valued [dissent] both as an end and as a means."

That commitment extended beyond abstract principle. After Steve took emeritus status--and even as he continued to write influential books and articles--he undertook a course of study to train himself to represent indigent clients in the local courts. The role of lawyer was hardly unfamiliar. For three decades, Steve had served as counsel to Irell & Minella, principally representing media companies. Thus, when he returned to litigation, it did not take long for free speech clients to come knocking. Steve did not disappoint.

I was lucky enough to work with Steve on a few of his many pro bono cases. One stands out in particular. The U.S. Air Force operates some of its drones out of a base near Syracuse. As a result, a group of pacifists who object to U.S. military policy protest just outside the base. As an act of civil disobedience, one such protester, Daniel Finlay, symbolically, non-violently, and temporarily blocked an entry point to the base. He was arrested. The town court judge before whom Mr. Finlay appeared imposed a protective order on behalf of the base commander in terms that were so vague and overly broad as to make it effectively impossible for Mr. Finlay to participate in fully protected protests without risking contempt. Steve (and I) thought it was ridiculous to use a statute that had been enacted to protect domestic violence victims against their abusers to prevent a pacifist in his 70s from protesting. However, the procedural posture of the case precluded a direct appeal, so we needed to devise a novel mechanism to obtain relief. New York's habeas statute didn't seem to cover Mr. Finlay's circumstances, so we argued to Judge Brunetti of the Supreme Court (New York's general trial court) that the preserved right of common-law habeas or, alternatively, the writ of coram vobis, was available. We won! Steve was delighted that our many hours reading old English cases paid off but he was even more delighted for the client. Steve wasn't just a zealous advocate for Dan Finlay. He had genuine fondness for Dan. When Steve told me about his other clients--including some accused of serious wrongdoing--he always spoke of them with empathy.

65 Reasons Why The Supreme Court is Terrible, Has Always Been Terrible, and Needs to be Reformed

 By Eric Segall

Tomorrow I turn 65 years old. Having just returned from a meeting about, gasp, Medicare, I have been reflecting on what my future holds.

I got nothing.

But I do have 65 reasons why SCOTUS is terrible. Here they are in no particular order other than the first one. 

Tuesday, May 30, 2023

Sophistry is Sophistry: from Debt Ceiling Doubletalk to Book Bans

by Neil H. Buchanan

After the chaos of the last month or so, the world now finds itself in an unexpected limbo, waiting to see whether the deal that President Biden worked out with Kevin McCarthy late last week will be passed by both houses of Congress and signed into law.  This must happen on time (apparently by next Monday), or we will be back to facing two damaging alternatives: the US government will default on its obligations for the first time in history, or the White House will refuse to allow such a default and instead will issue new federal debt in excess of the debt ceiling.

And to be clear, even though Professor Dorf and I have repeatedly emphasized that the damage from defaulting is much, much worse than the damage from being forced to violate the debt ceiling statute, both paths would create constitutional and economic crises.  If the current deal does goes through, Professor Dorf and I (together, separately, or more likely both) will offer a few postmortems in due course.  For now, however, we are in limbo along with everyone else.

In the interim, I want to take this opportunity to revisit one of the low points of the recent tumult and compare one commentator's utterly dishonest argument regarding the debt ceiling to one politician's utterly dishonest argument regarding book bans.  Those two topics appear to have virtually nothing in common, but when sophists get their grooves on, there are certain common go-to moves that they cannot resist.

Saturday, May 27, 2023

The "Dark Donald" Scenario Underscores the President's Lack of Prioritization Authority

 by Neil H. Buchanan and Michael C. Dorf

Since we began writing about the debt ceiling back in 2011, we have occasionally been met with an objection to our contention that borrowing in excess of the debt ceiling is less unconstitutional than failing to spend appropriated funds. Precedents like Train v. City of New York and Clinton v. City of New York, the objection goes, indicate that--absent a valid congressional delegation to the President of the power to spend less than some fixed amount--the President must spend all of an appropriation, but that such obligation is contingent on there being money in the government's bank account to spend. If authorized borrowing plus tax revenues amount to some number less than the expenditures Congress has required, the objection continues, then the President is not under an obligation to spend the full amount. Thus, according to this line of pushback, there is no trilemma when the debt ceiling becomes binding: the President simply spends as much money as the government has on hand; under these circumstances, the failure to spend the full amount authorized doesn't usurp Congress's spending power.

That is, to be blunt, weird -- or at least naive. It ignores the irreducible complications of budgetary tradeoffs, the setting of next-best policy priorities, and more generally the hard work of hammering out compromises in the course of writing complicated legislation. Those hard-fought agreements are reached with both sides of a deal believing that those elements of the legislation about which they care the most will not fall by the wayside, which would happen all but randomly when (if the objection above is taken seriously) the President stops paying those bills which by sheer bad luck came due on a day when the Treasury's shelves were bare. If that is not an assault on Congress's spending power, it would be difficult to know what is. There are many, many moving parts. Throwing some of them away, whether actively or passively, changes what Congress legislated.

More to the immediate point, as we've noted elsewhere, there's nothing in Train or Clinton that suggests that the cases are limited to circumstances when the government is flush with cash, but we acknowledge that the distinction is one a court could draw if there were good reason to draw it. In today's essay, we shall explain why there isn't good reason. Or to be more precise, we will intensify an explanation we have already given.

Thursday, May 25, 2023

There is No Historical Precedent for Prioritization in a Debt Ceiling Crisis

 by Neil H. Buchanan and Michael C. Dorf

Conor Clarke, who will shortly begin his appointment as a faculty member at the Washington University School of Law (and whom we shall accordingly, albeit slightly prematurely, refer to as Professor Clarke) recently posted on SSRN a fascinating draft article titled The Debt Limit. In it, he traces the history of the current debt ceiling statute to origins that long pre-date what is often said to be the first debt ceiling statute in 1917. As he explains, the original purpose of the debt ceiling statute currently codified at 31 U.S.C. § 3101 had nothing to do with fiscal restraint, as Republicans now claim for the current version.

Rather, in prior years Congress had not enacted a general authorization for the Treasury to borrow money, instead passing borrowing authorizations to accompany specific appropriations bills. The debt ceiling statute, Prof Clarke says, was part of a legislative package that obviated the need for new borrowing authority. It was intended to expand, not restrict, the government's ability to borrow. In the current era, he concludes, it serves no useful purpose and therefore should be repealed. Needless to say (because we've said it many times before), we agree with that conclusion.

Despite sharing our policy views about the debt ceiling, Prof Clarke disagrees with our analysis of the situation the President would face (quite possibly within a week) should Congress fail to raise the debt ceiling sufficiently to cover the gap between tax revenues and appropriations. His chief argument is rooted in historical practice.

In The Debt Limit, Prof Clarke recounts a great many interesting details about the pre-1917 experience. He summarizes some of them in a recent essay on The Volokh Conspiracy, where he also links to  popularizations of academic writing and promises additional efforts along those lines for broader public consumption. Both the longer article and the short summary on Volokh endorse what we have called the conventional wisdom: in a debt ceiling crisis, the President should prioritize some appropriations over others, paying bondholders before everyone else and then making discretionary judgments about which bills to pay (and when and to what extent) from the leftover funds on hand. He rejects our view that the exercise of such enormous executive discretion without clear congressional authorization or any statutory guidance would be a much worse usurpation of legislative power than would be simply issuing bonds in excess of the debt ceiling. As Prof Clarke says on Volokh, we "get it wrong on the constitutional 'trilemma.'"

Why? Perhaps Prof Clarke has been holding in reserve a secret killer argument to show how and where we are wrong. However, as we explain below, what he has written so far provides no grounds at all for thinking we're wrong and arguably even reinforces our position.

Constitutional Makeweights, The Supreme Court, and the Rule of Law

By Eric Segall

Professor Ronald Krotoszynski, Jr., recently published an important and provocative article titled, "On the Importance of Being Earnest: Contrasting the Dangers of Makeweights with the Virtues of Judicial Candor in Constitutional Adjudication." The first sentence of the article is compelling: "For better or for worse--and mostly for worse--the Supreme Court does not always play it straight with We the People." 

Krotosznski argues, citing Ronald Dworkin and others (disclaimer, including me), that the "legitimacy" of a court's decision depends on the quality of the reasons the judges provide as the basis for the holding. This much-needed transparency furthers the rule of law and allows the people to judge the court's work. Krotosznski contrasts sincere reasons with "constitutional makeweights," which obscure and hide the judges' true rationales for their decisions. He argues that all courts "should abstain from the practice of offering bogus reasons in support of their judgments" because:

Genuine peril exists ... for a judge who assumes that they enjoy the same freedom of choice as an elected politician to take inconsistent positions over time in order to reach congenial results on important questions of constitutional law. For a judge to say one thing today, and then adopt an entirely inconsistent position tomorrow, makes it clear that the reasons offered in support of one of the judgments were insincere (at best) and patently false (at worst). Going forward, a reasonable consumer of that jurist’s opinions will take whatever they say with a grain (or two) of salt. Perhaps the judge’s stated reasons are the actual reasons for their judgment--or perhaps they are not. Over time, a sensible person would give less credence to the reasons offered by a judge who exhibits little or no regard for embracing the outcomes that their own precedents, and the legal reasons set forth within those decisions, 

Although all courts should abstain from using makeweight reasons, Krotoszynski accurately says that what "holds true of courts in general holds doubly true of the Supreme Court of the United States."

Wednesday, May 24, 2023

If the Debt Ceiling Comes to SCOTUS, It Would Help to Play Defense, Not Offense

 by Michael C. Dorf

In just over a week, the government will have insufficient funds to pay all of its bills. President Biden and Speaker McCarthy still haven't gotten to yes on a deal that includes raising the debt ceiling. Even if they reach one as early as later today, there is no guarantee that it will get through Congress. Under the Hastert rule, a majority of Republicans will need to support the deal in order for McCarthy to bring it to the floor, so even substantial support from House Democrats would not ensure passage. And there might not be time for a discharge petition to succeed, even assuming enough support could be found for that avenue. Thus, the path to passage would be narrow, to say the least.

What happens if the debt ceiling isn't raised? Whenever a version of that question is asked, two families of answers are given: (1) the government "prioritizes" certain payments, especially those due to bondholders, while delaying or only partially paying or not paying at all certain other payments, such as the salaries of federal employees, doctors and hospitals that are due payments under Medicare, etc.; or (2) the government employs one (or more) of a number of devices and/or arguments to pay everyone in full while continuing to borrow (in substance even if not in name).

In recent weeks, President Biden has, on a number of occasions, appeared to rule out at least one of the options on the menu for family (2)--invoking the Fourteenth Amendment. However, as Prof Buchanan and I noted in our Verdict column on Monday, it is possible that the President is simply bluffing and is holding in reserve other contingent plans or even invocation of the Fourteenth Amendment (or better yet, in our view, separation of powers). Accordingly, both (1) prioritization and (2) one or more workarounds that allow full payment remain live possibilities. Under either scenario, lawsuits will follow.

Tuesday, May 23, 2023

How I Went from Media Hound to Camera Shy: Rudy Giuliani Becomes Greta Garbo

by Neil H. Buchanan

The debt ceiling mess is looking more and more likely to cause an epic catastrophe, which means that only adults should be in the room trying to fix the problem.  More generally, it also means that the media and political leaders should be seeking out and listening to people who know what they are talking about.  Instead, we have now reached the point where anyone with a laptop or a camera thinks they should share their half-baked idea about an issue that is not -- or at least should not be -- a subject for hot-takes and gut feelings.  As things become more dire, then, the public discussion has if anything become even less helpful.  As a result, the likely upcoming course of events could be disastrous.

One particularly worrying aspect of this bad turn is that President Biden's advisors and other people with his ear appear to be appealing to his inherently cautious nature, telling him to do the safe thing rather than follow the advice of people like Professor Dorf and me when we tell him that he should take decisive action to neutralize the debt ceiling once and for all.  The problem with that "stay on the safe side" instinct is that the Republicans have manufactured a crisis that has never included any riskless options.  There are no "normal" moves in a completely abnormal situation.

Accordingly, we published another Buchanan-Dorf column yesterday on Verdict, where I then published a companion piece today.  In both, the point is to try to disabuse Biden and his team of the fantasy that there is a way to get through this without doing something dramatic.  If Biden and the Republicans do reach a deal this week, that would harm the economy right away and embolden Republicans to take hostages again next time (and the time after that, and ...).  Without a deal, there will only be two possibilities; (1) Biden pays the bills, even if the debt ceiling becomes binding; or (2) Biden doesn't pay the bills, causing the US to default for the first time in history.  That's the list.  Do you see anything "safe" there?

This column is not, however, dedicated to discussing the substance of the rolling disaster yet again.  Instead, I will address a question that is implied by my observation above that the entire debate has become polluted by insta-pundits.  How did we reach the point where knowledge and expertise do not matter on this issue -- just as it no longer matters to so many people on issues such as climate change, vaccines, and on and on?  The future of the global economy is at stake, to say nothing of the US constitutional system.  But hey, why not ask some professor or columnist who has not thought about the issue for more than five minutes what he thinks?  What could go wrong?

Monday, May 22, 2023

Justice Gorsuch's Conspiracy-Theory-Adjacent Rant About COVID Restrictions

 by Michael C. Dorf

My Verdict column on Friday praised Justice Gorsuch for the sensitivity towards animal welfare that he demonstrated in his lead opinion in National Pork Producers Council v. Ross. Because the universe has a sense of humor, naturally, just a few hours after that column posted, Justice Gorsuch showed that, while he occasionally provides pleasant surprises, more often the surprises, not to mention the predictable decisions are, shall we say, not so pleasant. 

In Arizona v. Mayorkas, the Supreme Court vacated the DC Circuit’s decision denying various red states' motion to intervene and ordered that court to dismiss the case--which involves the so-called Title 42 policy at the border--as moot. Justice Jackson briefly noted that she wouldn’t have vacated the lower court ruling but didn’t disagree with the conclusion that there’s nothing left to decide, in light of the ending of the COVID emergency and the Title 42 policy.

Justice Gorsuch added a “statement.” Its ostensible point is that the Trump and Biden administrations kept the Title 42 policy in effect well beyond any plausible basis for it. After all, even by the spring of 2020, it was apparent that COVID was widespread in the United States, so that people crossing the border from Mexico were not likely to have more than a negligible impact on the nation’s public health. It was clear for three years that COVID was being used as a pretext--first by the Trump administration and then by the states that sued the Biden administration to keep the Title 42 policy in effect--for keeping asylum seekers and other migrants from gaining entry to the country. And the SCOTUS order temporarily freezing the status quo kept the pretextual policy in place for months.

Justice Gorsuch could have stopped there. If he had, his statement would have been entirely fair and appropriate. But he didn’t stop. Rather, he went on for another four-and-a-half pages to rant against all manner of COVID emergency measures, including: stay-at-home orders; vaccine mandates; limits on gatherings, especially as applied to worship services; and “censorship” of “debate” about “public policy.”

Friday, May 19, 2023

Against Incommensurability in the Prop 12 Case and Beyond

by Michael C. Dorf

My latest solo Verdict column (by contrast with the various debt-ceiling columns I've been co-authoring with Prof Buchanan) offers an animal-welfare-centric view of last week's SCOTUS decision in National Pork Producers Council (NPPC) v. Ross. The pork industry plaintiffs challenged a provision implementing the part of California's Proposition 12 that mandates minimum welfare standards for the (mothers of and the) pigs slaughtered for pork products sold in state. Nearly all of the pork sold in California is produced out of state, so the plaintiffs argued that Prop 12 is extraterritorial legislation in violation of the dormant Commerce Clause (DCC).

After explaining why the case is unlikely to have far-reaching consequences for state abortion regulations, my column focuses on the pleasantly surprising fact that the Court treats animal welfare as a very serious concern of the law. To be sure, I'm realistic. I don't fool myself that Prop 12 will lead to the collapse of animal agriculture. But I count the case as a modest victory. Readers interested in the animal welfare issues should also look for my conversation with Mariann Sullivan, host of the Animal Law Podcast, which will air next week and follows up on the episode we recorded shortly after the oral argument in NPPC.

In today's essay, I examine a somewhat more abstract issue that was not ultimately decisive in NPPC but that divided the Justices: the possibility of balancing incommensurate values. 

Thursday, May 18, 2023

Conservatives' Sophistry Enables Republicans' Cruelty

by Neil H. Buchanan

The debt ceiling crisis is no laughing matter.  Even so, there have been some truly funny moments along the way.  Some of the best were when I read a New York Times op-ed by a law professor named Michael McConnell this past Sunday, in which he repeated almost verbatim some weak arguments that he had made in 2012.  His claims, at most, could most likely defeat a strawman version of the now-familiar Fourteenth Amendment argument -- the non-strawman version of which is sufficient but not necessary (and definitely not the strongest available) to allow President Biden to end Republicans' hostage-taking via the debt ceiling.

Before I even knew that the essay had been published, I received multiple emails from readers telling me how weak McConnell's arguments were and encouraging me not to hold back in writing a reply.  I have now obliged, publishing "Justifying Republican Hostage-Taking as Merely Normal Negotiating is Sophistry at Its Worst," today on Verdict.

I admit that it was genuinely fun to write the piece.  Even though it felt like I was punching down in terms of rhetorically shooting an unarmed man, this particular sophist is a former Republican-appointed federal judge, a professor at an elite law school, and a resident scholar at a major right-wing think tank.  If he is willing to publish what he did in The Times, consequences follow.  Moreover, the stakes could not be higher, as I will emphasize in this column.

I will mention a few of the main points from my Verdict column below, but my core purpose here is to use McConnell's many misfires to return to a point that is often forgotten in all of the back-and-forth legal argumentation.  Specifically, the stakes here are more than legal principles and financial abstractions.  Real people, especially those in vulnerable positions in society, will suffer if Republicans get their way.  And McConnell's essay inadvertently concedes that he and his allies simply do not care.

Do I care about the rule of law?  The separation of powers?  Preventing the United States from becoming a deadbeat nation?  Absolutely, as tens of thousands of words that I have published readily demonstrate.  But I also care about stopping conservatives from continuing to use their political power to harm people who should not be harmed, including children and other innocents whose lives would be shattered (and in many cases ended) by what is happening in Washington this month.

When people like me say that Republicans are taking the economy hostage, then, we are not speaking in hypotheticals or about bloodless generalities.  The Republicans affirmatively want to harm some people whom they despise, and they are willing to harm other people in order to get their way.  Those are the stakes.

Wednesday, May 17, 2023

Is the Debt Ceiling Law the Most Unconstitutional Statute?

by Michael C. Dorf

Prof. Buchanan and I have long argued that presidential borrowing in violation of the debt ceiling should Congress fail to raise it would be the "least unconstitutional option" (LUO). We illustrate with some homey examples in our new op-ed in the Los Angeles Times. The LA Times essay also indirectly responds to Prof. Michael McConnell's high-profile non sequitur in the NY Times, in which he argued that the president has no independent authority to borrow money on the credit of the United States because that power belongs to Congress. Well, duh. The question, though, is what happens when the president's only options all involve usurpation of a power of Congress. (There are other problems with Prof. McConnell's view as well, as I explained in a Twitter thread over the weekend.) Assuming that none of the proposed workarounds we discussed in our Verdict column on Monday actually works, and that therefore a genuine trilemma arises, our LA Times piece shows why the answer is that issuing debt minimizes the violation.

But wait. There's more. Prof. Buchanan and I also have yet another Verdict column out today. In it, we offer President Biden a tool to use in the ongoing negotiations discussions with Kevin McCarthy and House Republicans. He could channel his alter ego, Dark Brandon, to say that if the debt ceiling isn't raised he'll do what the Republicans seem to want him to do then: "prioritize" certain spending over other spending BUT in a way that rewards Dark Brandon's political friends and punishes his enemies. The very prospect, we say, dramatically illustrates what's wrong with prioritization.

Two new Buchanan/Dorf debt ceiling essays not enough for you, today? Good news! I've got more to say in this very essay, in which I consider yet another way to get around the debt ceiling should the negotiations discussions fail to produce a deal.

Now that Prof Laurence Tribe has pretty much endorsed the Buchanan/Dorf view that presidential borrowing in violation of the debt ceiling would be the LUO, I have begun to wonder whether our view might be too generous to the Republicans trying to use the debt ceiling as leverage. To understand how and why, it will help to consider the origin story of the LUO--in which Prof Tribe played a key catalytic role.

Tuesday, May 16, 2023

Why the Court Should Dismiss the Most Important Case of the Year (Moore v Harper).

 By Eric Segall

Professor Mark Lemley recently wrote the following striking paragraph in the Harvard Law Review in an article titled the "Imperial Supreme Court."

The past few years have marked the emergence of the imperial Supreme Court. Armed with a new, nearly bulletproof majority, conservative Justices on the Court have embarked on a radical restructuring of American law across a range of fields and disciplines. Unlike previous shifts in the Court, this one isn’t marked by debates over federal versus state power, or congressional versus judicial power, or judicial activism versus restraint. Nor is it marked by the triumph of one form of constitutional interpretation over another. On each of those axes, the Court’s recent opinions point in radically different directions. The Court has taken significant, simultaneous steps to restrict the power of Congress, the administrative state, the states, and the lower federal courts. And it has done so using a variety of (often contradictory) interpretative methodologies. The common denominator across multiple opinions in the last two years is that they concentrate power in one place: the Supreme Court.

One striking example of this power grab is a case from a few years ago, Trinity Lutheran v. Comer, involving the religion clauses, where the Court decided the merits of a Missouri grant program excluding religious schools even though by the time the case was argued, a different governor had been elected, he had changed the policy to allow religious schools to apply, and all the parties to the case agreed on every issue in the litigation. The Court should have dismissed the case for both mootness and a total lack of adversarialness, but instead the Court issued a major constitutional decision giving the free exercise clause prominence and essentially reading the establishment clause out of the Constitution.

When the current Term started, despite the important affirmative action, free speech, and other constitutional law cases on the docket, many Court watchers thought that Moore v. Harper, a North Carolina case with country-changing implications for our elections, was the most important case of the year. In Moore, the North Carolina Supreme Court allowed plaintiffs to successfully challenge a redistricting map on the basis that it was an illegal gerrymander under the state constitution. The defendants' argument that the federal constitution does not allow a state court to oversee state elections under state law because of a provision of the federal Constitution, known as the Independent State Legislature theory ("ISL"), was rejected by the state court. Although there were still some proceedings in the lower courts after the decision, the United States Supreme Court decided to hear the case to decide the validity of the ISL theory.

Monday, May 15, 2023

Some Technical Details (and Math!) About Premium Bonds

by Neil H. Buchanan and Michael C. Dorf

In our latest Verdict column on . . . wait for it . . . wait for it . . . the debt ceiling (duh!), we offer the Biden administration a novel approach. Although we remain very dubious about the legality of platinum coins, exotic bonds, and other allegedly magical means to avoid a trilemma when the debt ceiling hits, we accept the point that one of these gimmicks might appeal to a court asked to invalidate whatever the administration might do to mitigate the damage of a debt ceiling impasse without unconstitutionally usurping legislative power by refusing to pay the nation’s bills.

In a previous essay here on the blog, we explained that we don’t just think that the platinum coin gimmick fails as a matter of statutory interpretation; we worry that if the administration were to attempt it, that would crowd out the better course of simply issuing debt-ceiling-violating bonds as the “least unconstitutional option” (LUO). As we wrote: “the administration will have only one shot at mitigating the damage if Congress doesn't raise the debt ceiling before the witching hour. Using that one shot on the platinum coin gambit when it would be so much simpler and more credible to issue debt in the usual course would be profoundly unwise.”

But maybe the administration can, as we say in the new Verdict column, have its cake and eat it too by rolling all of the various proposals into its one shot. The Treasury could issue what we call “fallback bonds,” which specify that if they are held invalid they will be replaced by other kinds of bonds, which in turn could be replaced by platinum coins if the first fallback option is also held invalid, and so on. Interested readers should consult the Verdict column.

In this accompanying essay, we offer two kinds of technical details that the Verdict column omits in the interest of space: (1) some math; and (2) further parsing of the debt ceiling statute as it applies to premium (i.e., very high interest) bonds.

Friday, May 12, 2023

Taking a Bit of a Break from the Latest Lunacy by Talking About ... Florida?

by Neil H. Buchanan

Almost exactly a year ago, I wrote a column here on Dorf on Law that I described as a "mental health break."  Even though that column ended up veering into tragic territory that was anything but a break from the news (the mass murder dominating the headlines at that time being the one in Uvalde, which has been followed by literally hundreds more since then), the main focus of that column was the utterly banal topic of homeowners insurance.  Click-bait extraordinaire.

In any event, I explained that I needed a mental health break because of "the ongoing wave of unrelentingly horrifying news on all fronts."  That has certainly not improved in the year since, and this year has the added un-fun of the debt ceiling crisis to keep me biting my fingernails and dealing with uninformed reporters.  Therefore, when my new homeowner's insurance bill arrived in the mail, I was almost grateful that it contained a surprise that justifies a followup to last year's column.

But today’s column is not ultimately about insurance. In the end, it implicates decades of bad governance by conservative politicians who claim to believe in "free" markets -- although we have recently learned that there is an exception when the largest employer in your state makes a public statement that an ambitious governor dislikes.  What is happening here in Florida is a leading example of what happens to a state that experiences decades of a corrupt political culture, spanning the decades before and after segregationist Southern Democrats became Republicans.

To put it differently, most of the news coming out of Florida in the last few years has been in some sense unprecedented, with an emerging wave of Trumpian authoritarianism and aggressive repression leading to dictatorial attacks on Democratic politicians, the state's universities, local control of schools, and so on.  We should remember, however, that in fact the deep rot has been here all along, in some states even worse than in Florida -- hello, Texas!  Confronting that fundamental problem might help us to understand how the new wave of reactionaries is building on that rotten history.

Thursday, May 11, 2023

As News Coverage of the Debt Ceiling Expands, It Goes from Bad to Worse

by Neil H. Buchanan

The dangerous insanity of the Republicans' hostage-taking via the debt ceiling continues apace.  Even though very little has changed about the basic contours of the situation, I continue to be surprised by how much there is to write about this endless nightmare.

Here, I will discuss a recent example of what I would describe as bad but (probably) innocent media coverage of the debt ceiling story, specifically a news article that appeared yesterday in TIME.  I am focusing on that article because I was one of the legal scholars quoted in it, based on a nineteen-minute interview with the reporter via telephone on Monday afternoon.  I thus have some knowledge of the process that led to the published piece.

Even though there is no apparent ill intent on the part of the reporter, the article is simply not good.  Not exactly terrible, and not openly pushing a bad agenda (or not exactly doing that), but just ... certainly a long way from good.  Occasionally, it is useful to go through something like this line-by-line, but here I will first set the article in context and then point only to its most important failings.

I concede that there is almost no way to write this column without having it come across as a harsh statement about the reporter.  Even so, that is not my intent, so although anyone who is interested can see his byline on the story, I will not use his name here.  That is because his identity is decidedly beside the point, especially because I will note in various places that many of the problems with the article seem to spring from his editors rather than his own errors or biases.

In my most despairing moments, I wonder how there is any hope for the survival of the US as anything resembling a democratic republic when the press has been as hollowed out and degraded as it is today.  Regular readers of this blog know, however, that I do not in fact think that the American political system will survive.  So there it is.

But what can we learn from one unhelpful news article, an article that is merely a single raindrop within a veritable downpour of useless-or-worse news coverage of the greatest threat to the global economy and the US Constitution that we have seen in our lifetimes?

Symposium on the Scholarship of Sherry Colb: September 29 at Rutgers-Newark and co-sponsored by the Cornell Law Review

 by Michael C. Dorf

On Friday September 29, 2023, the Rutgers Law School and the Cornell Law Review will co-host a one-day symposium commemorating and exploring the scholarship of Sherry Colb. The symposium will take place at the Rutgers-Newark Law School. The day's events will feature papers and discussion by three panels of distinguished faculty from Rutgers, Cornell, and around the country, focusing on and inspired by Sherry's work in: criminal procedure; feminist jurisprudence; and animal rights. The papers will ultimately be published in the Cornell Law Review.

Sherry was a beloved member of the Rutgers law faculty from 1993 to 2008 (for the first two years at Camden and then at Newark) and the Cornell law faculty from 2008 until her death in 2022 (interrupted by stints as a visiting professor at the University of Pennsylvania and Columbia law schools). 

In the coming weeks and months, the other organizers of the symposium and I will launch a website and provide additional details. For now, consider this a save-the-date announcement for what we expect to be a fitting tribute to Sherry's many important contributions to legal scholarship.

Wednesday, May 10, 2023

Litigating Debt Ceiling Plan B

by Michael C. Dorf

At his impromptu press conference after meeting with congressional leaders yesterday, President Biden said that he's "thinking about" Section 4 of the 14th Amendment as a Plan B in the event that no legislation raises or suspends the debt ceiling in the next few weeks, adding that he had come to that view because of the view recently expressed by Prof Laurence Tribe, who has long advised him on constitutional matters. However, Biden also said that the "the problem" with a unilateral presidential decision "is it would have to be litigated."

I count Biden's statement as substantial progress. I confess that at least a small part of my satisfaction is ego-driven. It's good to see Biden coming around to more or less the position that Prof Buchanan and I have long advocated: make utmost efforts to get legislation but if that fails, unilaterally issue debt in violation of the debt ceiling. It's also nice to see that our work seems to have played a causal, albeit indirect, role. The Tribe op-ed that apparently persuaded Biden closely followed the Buchanan/Dorf analysis, linking our 2012 Columbia Law Review article with the phrase "the most insightful literature" and citing no other scholarship.

To be sure, neither the Tribe op-ed nor the Buchanan/Dorf argument (in countless articles and essays) depends primarily on the 14th Amendment. As I noted earlier this year, the primary basis for unilateral presidential action in the event of congressional failure to raise the debt ceiling would be separation of powers. Still, as Prof Buchanan explained here last week, although the better argument makes the 14th Amendment unnecessary, an approach rooted in the 14th Amendment is not exactly wrong and is close enough to what we advocate that we would welcome the president's adoption of it. And Biden only referred to the 14th Amendment after a reporter specifically asked him about it. It's possible that he and his legal team would rely chiefly on separation of powers in any formal documents accompanying unilateral action.

The bigger difficulty is Biden's further assertion that such unilateral action raising the debt ceiling "would have to be litigated." I don't doubt that it would be litigated. As Tocqueville observed long before Ken Paxton and his ilk blighted the federal courts, "[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." But there's a difference between "would be litigated" and "would have to be litigated."

Tuesday, May 09, 2023

Platinum Coins are Islamic Finance, While "Premium" and "Consol" Bonds are Shabbos Goys

 by Michael C. Dorf

The holy texts of the Abrahamic religions condemn the charging of interest on loans, but it is impossible to run even a modestly sophisticated economy without debt-finance. Accordingly, people who accept the authority of their holy books but also hope to enjoy the fruits of a functioning economy find workarounds.

In medieval Europe, Christian rulers permitted Jews but not Christians to lend money at interest (even as they forbade Jews from earning a living in many other ways). This arrangement was permissible for Jews, for whom the prohibition on interest runs only between transactions in which both lender and borrower are Jewish. For loans between (very observant) Jews, the rabbis circumvent the interest prohibition through a form of partnership that reproduces some of the features of lending. To this day, banks in Israel offer use of this formality to customers who want it.

In majority-Muslim countries that officially follow Shari'ah, very clever lawyers and economists have developed an elaborate system of Islamic finance to substitute for interest on loans. Some of the resulting instruments and structures of Islamic banks differ from conventional banks; that is to say, Islamic finance is not entirely about creating legal fictions to disguise what are in substance interest-bearing loans. But that's certainly an important part of what's going on.

To state the obvious, I am not an expert in Shari'ah in general or Islamic finance in particular. I therefore won't venture an opinion about whether the arrangements offered by Islamic banks that are functionally equivalent to lending with interest thereby violate (any particular version of) Shari'ah (a somewhat fraught question helpfully explored by Prof Hamoudi here). Whether any particular attempt to circumvent a rule should be deemed impermissible on function-over-form grounds is highly contextual.

Instead, I mean only to use Islamic finance and a similar move employed by some orthodox Jews as a launching point for thinking about another context in which clever people are looking for means of circumventing a legal prohibition through financial legerdemain: two families of gimmicks being floated to circumvent the debt ceiling. As I'll explain, these gimmicks are pretty obviously ineffective.

Monday, May 08, 2023

Kings and Tyrants

 by Michael C. Dorf

[N.B.: Below is an essay inspired by the coronation of King Charles III. Meanwhile, my latest Verdict column addresses the unrelated subject of . . . wait for it . . . wait for it . . . no surprise here: the debt ceiling. In particular, I offer a speculative (and partly tongue-in-cheek) account of how President Biden's meeting with Speaker McCarthy and Minority Leader McConnell might go tomorrow. Speaking of the debt ceiling, in yesterday's New York Times, Prof Laurence Tribe wrote an op-ed explaining how he came to abandon his prior view and adopt what is essentially the Buchanan/Dorf view that absent new legislation raising or suspending the debt ceiling, Biden should issue new bonds anyway as the least unconstitutional option. His essay links our first Columbia Law Review article on the topic, which he describes as "the most insightful literature" on the subject. Okay, now onto the coronation.]

The American history I learned in elementary school in the 1970s was not exactly nuanced. It omitted a great deal and included all sorts of oversimplifications and outright falsehoods that enterprises like the 1619 Project seek to correct (albeit not entirely accurately itself). In the ensuing years, I've sought to fill in the gaps and come to a better understanding. Even so, I have held onto one fundamental truth I learned in elementary school: Americans don't need or want a king. The fascination some of my fellow Americans have with the British royals has always struck me as vaguely unpatriotic. Thus, I didn't watch much of the coronation ceremony of King Charles III. 

Having established my anti-monarchical bona fides, I want to say a couple of words in favor of hereditary monarchy as against non-hereditary systems for undemocratic selection of the head of state.

Friday, May 05, 2023

The Ideological Stakes of Overruling Chevron

 by Michael C. Dorf

On Monday, the Supreme Court granted certiorari in Loper Bright Enterprises (LBE) v. Raimondo in an order that limited the grant to question 2 of the petition, which asks: "Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency?"

For those of my readers who did not attend law school in the last 40 years, didn't take administrative law when they did, or took administrative law but forgot the one thing that everyone else remembers from that class, Chevron refers to the 1984 case of Chevron U.S.A., Inc. v. NRDC. It has long been cited for the proposition that, when Congress delegates power to an agency in unclear statutory language, a court reviewing administrative action will defer to a reasonable agency interpretation of the statute even if the court believes that some other interpretation is better.

For many years, Chevron was understood to involve a two-step process: First, is the statute unclear? If not, courts give no deference. If yes, then second, is the agency's interpretation reasonable? More recently, scholars have argued that there are additional steps. There is step zerostep one-and-a-half,  and as I once suggested mostly tongue in cheek, step negative one.

The Court could resolve LBE by addressing only the second half of the cert question on which it granted, but doing so would really amount to a Chevron step zero holding: it would be saying that when one reads the statute as a whole, indulging ordinary rules of statutory construction, what appears to be an ambiguity in a clause standing in isolation is not in fact ambiguous. I don't have a view about whether that proposition fairly applies to the particular statute at issue in LBE but I doubt the Court granted review in the case in order to "clarify" a proposition that is already entailed by its prior step-zero cases.

Moreover, if the Court were interested in finding a way to resolve LBE without deciding whether to overrule Chevron, it would have granted review on both questions presented in the cert petition. Because it didn't, it appears there are at least four Justices who want the opportunity to overrule Chevron. Given the druthers of the Chief Justice, this is not the sort of issue with respect to which I see him seeking to moderate the Court's direction--especially given that the Court is unlikely to pay a price with public opinion for overruling Chevron. Despite what I expect to be the best efforts of the likes of Nina Totenberg and Adam Liptak, most of the public won't comprehend the case or its stakes.

My readers aren't most of the public, however, so I'll add a few words about those stakes. Spoiler alert: I think they're modest rather than very high, but only because, the courts already have powerful tools at their disposal to undercut effective regulation, even without formally overruling Chevron.

Thursday, May 04, 2023

Political Polarization, Legal Education, and a Few Modest but Serious Proposals

 By Eric Segall

Twenty years ago, Justice Sandra Day O'Connor wrote the following in Grutter v. Bollinger:

Law schools, represent the training ground for a large number of our Nation’s leaders. Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges.

Justice O'Connor told us what we already knew: law schools and especially elite law schools, are the "training ground" for many of our nation's political leaders and judges. Justice O'Connor made this observation in the context of her opinion upholding the use of race in admissions by the University of Michigan Law School. Her point, of course, was that the benefits of attending highly ranked law schools were substantial and should be open to people of diverse races, backgrounds, and experiences. 

Wednesday, May 03, 2023

The Fourteenth Amendment Argument is Good But Clearly Second-Best: Does That Matter?

by Neil H. Buchanan

Now that the Treasury Department has jolted the debt ceiling back into the news by announcing that the drop-dead date is much earlier than expected (June 1 instead of late Summer or early Fall), every uninformed reporter, politician, and pundit once again has an opinion about something that they in fact know little or nothing about.

Over the decade-plus that this recurring nightmare has haunted us, one of the most frustrating aspects of news coverage has been an almost willful misunderstanding of the Buchanan-Dorf "least unconstitutional" trilemma analysis -- which, to repeat once again, is based on the observation that there are NO legal avenues available for a President to pursue once the debt ceiling becomes binding, including so-called prioritization of whose obligations will be paid.  Because of that obtuseness, our argument is treated as merely one item on a laundry list of "work-arounds" that might allow a President to frustrate Congress with a clever strategy.  This puts us on the same footing as the platinum coin gambit (about which we have written extensively in the last few weeks) and other weird financial tricks, as well as the argument based on Section 4 of the Fourteenth Amendment.

That latter argument, however, at least has the advantage of being correct, which very much separates it from the coin idea and other loopy fantasies.  The problem is that it is not the best argument available, and beyond that, when people hear "constitutional argument" in this context, they automatically think: "Oh, right, that's that Fourteenth Amendment thing."

My question for today is deceptively simple: If the drop-dead date comes, and President Biden takes the path that we have long advised him to take -- declare that he cannot allow the existence of the debt ceiling to force him to violate the appropriations laws and that his Treasury Department will thus continue to issue securities in the usual way, as necessary to pay our bills in full and on time -- but he says that he is doing so because of the Fourteenth Amendment and not because he is facing a trilemma, should I or anyone care?

Tuesday, May 02, 2023

Our MMT Critics Are Not Just Wrong About The Big Picture. They're Also Wrong About The Details

by Neil H. Buchanan and Michael C. Dorf

In our April 17, 2023 Verdict column (The So-Called Platinum Coin Option is Illegal, Even on Its Own Terms), we discussed a widely promoted gimmick that its proponents claim would enable the government to continue to pay all of its bills even if Congress fails to raise, suspend, or repeal the debt ceiling before the Treasury's "extraordinary measures" run out in the next few months. The gimmick exploits a supposed federal statutory loophole that would enable the executive branch to mint a platinum coin worth as large a sum as needed (potentially trillions of dollars), deposit it with the Federal Reserve, and use the credit to its account to pay bills with real money. Although we sympathize with the goal of circumventing efforts to tank the global economy, as we explained in the column, the gimmick fails because there is no such statutory loophole.

Our April 17 column recapped arguments we first made over a decade ago and highlighted new ones. The column garnered considerable attention, most of it positive but some extremely negative. We seem to have particularly irked one subset of the coin gimmick's proponents: advocates of modern monetary theory (MMT), an unorthodox economic perspective that advocates funding most if not all of government's functions by creating money rather than through taxing and borrowing. MMT-based platinum-coin enthusiasts took to social media to accuse us of "lying," "bad faith," and incompetent research.

Revealingly, none of the substantive points that accompanied the invective from the MMT crowd addressed the ultimate legal flaw with the coin gimmick (beyond the basic textual error that we also explained, and that we will explain again below): because the argument for the legality of multi-trillion-dollar platinum coins has no logical connection to the debt ceiling, if accepted, it would mean that a presidential administration would always have unilateral authority to fund the government entirely through minting platinum coins. Although that proposition would surely be welcome news to MMT adherents, it is simply preposterous to suppose that when Congress authorized the minting of platinum coins, it thereby also authorized completely circumventing our entire system of public finance through borrowing and the country’s extremely detailed laws governing taxation. Because our April 17 column mixed that argument in with other, more technical ones, we are willing to be generous and say that perhaps it was relatively easy for the critics to ignore it.

Accordingly, we have written a new Verdict column, in which we focus on this core argument showing why the platinum-coin gimmick's proponents' reading of the key statute is plainly mistaken. Again, that argument is that if the loophole exists, it could be used for anything and everything, meaning that we were needlessly modest in our April 17 column when we wrote this:

Put simply, it is beyond implausible to imagine that a Congress that did not directly repeal the debt ceiling statute nonetheless hid an Easter Egg in a different statute that would authorize the Treasury to avoid the debt ceiling by writing the words "one trillion dollars" on a hunk of platinum (but not on other metals or physical objects).

If it is silly to think that any Congress would hide an implicit repeal of only one law (the debt ceiling) in a statute authorizing coinage--and it is--how cuckoo-bananas would it have to be to think that Congress inserted a full-on repeal of the entire system of public finance, including the Internal Revenue Code, and make that repeal visible only to those with extra-sensory perception?

Monday, May 01, 2023

If Justice Alito Doesn't Have Enough Evidence to Name the Dobbs Leaker, Maybe He Shouldn't Say He Knows Who It Was

 by Michael C. Dorf

Last week the Wall Street Journal published a story based on an interview with Justice Samuel Alito. The WSJ requires a subscription but for readers who lack one, I can briefly quote the key portions on which I want to focus. Regarding last year's leak of Justice Alito's majority opinion in the Dobbs case, he says:

“I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody . . . .” The reporter then states that Alito is "certain about the motive," which was, in the Justice's words,  “part of an effort to prevent the Dobbs draft . . . from becoming the decision of the court. And that’s how it was used for those six weeks by people on the outside—as part of the campaign to try to intimidate the court.” He goes on: “Those of us who were thought to be in the majority, thought to have approved my draft opinion, were really targets of assassination,” in an apparent reference to the apprehension of an armed man outside the home of Justice Brett Kavanaugh. Justice Alito adds: “It was rational for people to believe that they might be able to stop the decision in Dobbs by killing one of us.”

Justice Alito did not (so far as I'm aware) receive but fail to report extravagant largesse from an eccentric billionaire patron with a collection of Nazi memorabilia, nor did his wife participate in a plot to overthrow U.S. democracy. Accordingly, he is not the most ethically challenged of the current Justices. But we oughtn't to grade on a curve. At a minimum, Justice Alito's statements to the WSJ reporter (assuming they were reported accurately), reflect poor judgment.