Wednesday, October 16, 2019

The Costs and Benefits of Economic Sanctions

by Michael C. Dorf

It is better to be shocked with a taser than shot with a gun, but a shock from a taser is nonetheless extremely unpleasant. So too with economic sanctions, which unleash less destructive force than armed conflict but nonetheless can be nasty. I'll explore the point today with reference to Trump policies and the current controversy embroiling the National Basketball Association.

Tuesday, October 15, 2019

Tramp the Dirt Down

by Neil H. Buchanan

As the world tries to understand why Republicans have not abandoned Donald Trump, despite his violation of so many of their supposed principles -- Hint: It cannot be that he "does what conservatives want him to do" (and certainly not only that), because any Republican president would be substantively identical to Trump on taxes, the environment, labor law, and so on -- it is worth remembering once again that many of those principles themselves are indefensible.

And understanding what makes the modern conservative movement indefensible in turn calls for us to remember that the same symbiosis that currently exists between the US and UK in their political malfunctions (Brexit simply being Trumpism carried out by a number of mini-Trumps rather than one mega-corrupt Trump) existed at the onset of what American Republicans think of as the dawn of a new day under Ronald Reagan when he took office in 1981.

I am referring, of course, to Margaret Thatcher, whose rise to become Britain's Prime Minister predated Reagan's inauguration by more than a year and a half.  Although Thatcher mouthed various platitudes -- including quoting St. Francis of Assisi: "Where there is hatred, let me sow love" -- she was extremely hard-edged (and not a veteran of B-movies) and thus was never able to summon Reagan's what-me-worry optimism.  Despite their stylistic differences, the two of them began the long slog that led to our current historically gaping levels of inequality, environmental catastrophe, and attempts to block or roll back civil rights gains.

Why should we care about Thatcher now, and what can we learn from thinking about her?  The short answer is that she was the leading figure in the deformation of the modern world.  While a young grifter named Donald Trump was busy discriminating against African Americans in New York City rental housing while making up stories to feed the press about his nonexistent greatness, Thatcher and her followers carried out a political agenda that made something like Trumpism both possible and inevitable.

Monday, October 14, 2019

Justice Neil Gorsuch: Hubris Masquerading as Modesty

By Eric Segall

Last Tuesday, the Supreme Court heard three cases raising the issue whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination "on the basis of sex," protects gays, lesbians, and transgender persons. During the oral argument, Justice Neil Gorsuch conceded that the textual issues were very close and then asked Professor David Cole, one of the plaintiffs' attorneys, whether a judge should "take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that -- that Congress didn't think about it ...  That's it. It's a question of judicial modesty."

This paen to "judicial modesty" is consistent with many passages in Gorsuch's new book, "A Republic If You Can Keep It," which I reviewed here. For example, in that book, Gorsuch says he has two rules for his law clerks: 1) "Don't make stuff up," and 2) "When people beg, and say, ‘Oh, the consequences are so important,’ and when they say, ‘You’re a terrible, terrible, terrible person if you don’t,’ just refer back to Rule No. 1. And we’ll be fine." Recently Gorsuch also said that the founding fathers didn't want "nine old people in Washington sitting in robes telling everybody else how to live."

This rhetoric about modesty and deference, however, comes from a man who has already shown that he has no problem telling both the American people, and the states themselves, how they should govern their lives and their citizens even when constitutional text and its history do not suggest that judges should overturn the decisions of more accountable political officials.

Friday, October 11, 2019

House Impeachment Procedures

by Michael C. Dorf

Let's begin with what's clear.

1) Congress has the power to subpoena private citizens and past and present executive branch officials to testify and to produce documents so long as the witnesses and materials sought bear some rational relationship to a legitimate congressional purpose, including impeachment and potential legislation. The Trump administration's withholding of appropriated funds from Ukraine makes the present impeachment inquiry obviously relevant to Congress's power of the purse. So too, Trump's conduct--as indicated by his own statements--makes the inquiry relevant to consideration of impeachment. Absent identification of specific objections on national security, particularized executive privilege, or other pressing grounds, executive branch officials and private parties must comply with congressional subpoenas. A court has rightly rejected Trump's claim to the contrary in litigation over Trump's financial records. Likewise, the White House Counsel letter to Congress asserting the president's right to refuse to "participate" in the impeachment inquiry is "bananas."

2) The key claim in the White House Counsel letter is that the procedures to be used in the House for the impeachment inquiry are unfair and thus unconstitutional. This is a very very bad claim. Article I gives the House "the sole Power of Impeachment" and grants it the power to "determine the Rules of its Proceedings." The letter cites procedures employed in prior presidential impeachments as precedents, but does not provide any reason to conclude that the House at the time thought it was constitutionally obligated to use the procedures it did or was setting a precedent that would be binding in the future. In Nixon v. US, the SCOTUS said that a challenge to the procedures used for a judicial impeachment trial in the Senate presents a non-justiciable political question, relying substantially on the fact that Article I assigns the Senate "the sole Power to try all Impeachments." The parallel language regarding the House means that its procedures as well would not be subject to judicial second-guessing.

So what's unclear? One question (that I'll address very briefly) is remedy. A second question concerns the most prudent course for the House to follow.

Thursday, October 10, 2019

Athletics and College Admissions at Harvard and Beyond

by Michael C. Dorf

Last week, Federal District Judge Allison Burroughs issued a 130-page opinion rejecting a challenge to Harvard College's admissions program. The lawsuit on behalf of Students for Fair Admissions charged that Harvard discriminates against Asian American applicants in violation of Title VI. Because the Supreme Court has construed the prohibition on racial discrimination in Title VI as coextensive with the Fourteenth Amendment's Equal Protection Clause, the ruling in the case has implications for public as well as private colleges and universities--assuming it stands up on appeal.

Much of the press coverage of the Harvard case has treated it as a test of the legality of race-based affirmative action. And indeed, it may prove to be that. Although Judge Burroughs applied existing SCOTUS case law allowing the consideration of race as a plus factor but not a quota and allowing colleges to seek diversity but not racial balancing, the most recent articulation of those principles occurs in a 5-4 ruling by Justice Kennedy. It is conceivable that Justice Kavanaugh or Chief Justice Roberts or both will reaffirm the permissibility of affirmative action in a future case, but it is more likely that a conservative majority will either reject the Bakke/Grutter/Fisher line of cases entirely or reinterpret those cases so narrowly as to effectively eliminate race-based affirmative action. Whether that happens in the Harvard case or some future case remains to be seen.

For what it's worth, I regard it as unfortunate that so much of the discussion of the Harvard case has gotten tied up in a discussion of affirmative action. I understand why that would be so from the perspective of affirmative action's critics. To them, the goal of increasing the enrollment of African Americans and Latinx students necessarily means decreasing the enrollment of other racial groups, including Asian Americans.

But that oughtn't to be the only basis for objecting to discrimination against Asian Americans. Liberal supporters of affirmative action could join its critics in condemning what may be a corrupt bargain, whereby colleges discriminate against Asian American applicants to enable affirmative action for African American and Latinx students while preserving white privilege. Or at least we could so join together if we were persuaded that's what is going on. Is it?

Wednesday, October 09, 2019

I Know It's Really U.S. Cultural Imperialism, But I Like It

by Neil H. Buchanan

I suppose that, in early 1933, there must have been intellectuals scattered about the world thinking about relatively lightweight topics like popular music.  They surely knew that important things were afoot politically, especially in Germany, but they likely had no idea that the Reichstag fire was imminent.  Today, at least we have reason to know that something like that is all too possible.

Wikipedia helpfully explains that "[t]he term 'Reichstag fire' has come to refer to false flag actions facilitated by an authority to promote their own interests through popular approval of retribution or retraction of civil rights."  Today, as Donald Trump's political nightmare deepens and he becomes increasingly untethered to even his abnormal version of normal day-to-day behavior, it seems more than reasonable to wonder what extreme and desperate measures he will take to save himself.

Groups of his supporters -- possibly even including some in Congress, but certainly some among the people on whom he is counting to take to the streets to save his presidency -- are surely also thinking along such lines.  One reason that it has not happened thus far is that Trump has seemed relatively untouchable, with the Mueller report inexplicably having had virtually no impact and Senate Republicans solidly behind him, no matter what he has done.

I write today gripped by a grim near-certainty that something truly catastrophic is in our future.  The reasons that we might be optimistic that people would not do this -- basic human decency, a sense of limits, worry about being found out -- seem naive at best when applied to Trump and his cultists.  Unlike the people in 1933, most of whom presumably did not yet have reason to believe that the rising nationalists in Berlin were capable of doing anything so horrible, we are reduced today to the choice between facing this reality or living in denial.  But other than sheer hope, there is little reason for anything but pessimism.

What to do?  Like those people whom I imagined living their lives back in 1933, I am going to think about popular music!  Why?  Because it is better than worrying about something over which we have no control and which is likely to fundamentally change the future.  Why not sing and dance instead?

Tuesday, October 08, 2019

The Way to Stop the Title VII Parade of Horribles is to Stop Parading the Horribles

by Michael C. Dorf

Today the SCOTUS will hear oral argument in two cases apparently presenting the questions whether Title VII's prohibition on sex discrimination thereby forbids discrimination based on sexual orientation and gender identity. As Prof Marty Lederman explained in a blog post last month, the framing of the cases as involving categorical policies excluding LGBT persons from employment is wrong on the facts, but he also argued (and I agree) that if the cases are framed that way the plaintiffs still should win. (Interested readers can find the brief by Marty, me, and three other law professors in support of plaintiff Aimee Stephens in the Harris Funeral Homes case here).

Today I want to address two arguments made against recognizing gender identity discrimination as sex discrimination. Both have the flavor of a parade of horribles and feature in various briefs by the defendants and their amici. The arguments are that if gender identity discrimination is deemed unlawful under Title VII, then it will be unlawful under other statutory prohibitions of sex discrimination and as a matter of equal protection, which, in turn, will be the end of sex-segregated restrooms in public and publicly funded institutions as well as the end of girls and women's high school and college sports.

My response is that the restroom concern is mostly hysteria, but that if it isn't, that's not a reason to reject the plaintiffs' claims here. I have the same response to the sports objection: If it's persuasive, that's a reason to draw the line there, not a reason to reject claims in a totally different context. Now I'll elaborate.