Happy (?) Independence Day

by Neil H. Buchanan

Today, Friday the 3rd of July, is designated "Independence Day observed" on my calendar.

We at Dorf on Law are hardly giddy optimists, but we do hope that next year's celebration of this country's declaration of independence will occur in a time with more reasons to feel confident about the future than we can see today.

In any event, we wish all of our readers health and happiness,

Biden's Statues and Names Compromise is 2020's Version of Civil Unions

by Neil H. Buchanan

I never thought that I would see NASCAR ban the Confederate flag from its events.  Ever.  I could not imagine Mississippi getting rid of the that flag's inclusion in its state flag.  Ever.  I never thought that entire high school sports teams would take a knee during the national anthem, or Mitt Romney would join a civil rights march against systemic racism, or any number of other politicians would embrace the phrase "Black Lives Matter."  Ever.  Ever.  Ever.

Even so, we often see things happen suddenly that had once seemed unthinkable.  I have noted at various times, for example, that the public's attitude about cigarette smoking once seemed implacable: Smoking was viewed as an individual's right, goddammit!  But in very short order, not only did smoking become "uncool" but New York City's smoking ban -- even in bars and restaurants -- was adopted in cities across the country and the world.  Paris without people smoking arrogantly (and now merely being arrogant)?  Quelle horreur!!

Drunk driving went from cool to unacceptable in a few short years in the mid-1980's.  Marijuana is now legal and widely accepted in many states, with nary a Jeff Sessions to turn it into a culture war battle.  Bill Cosby is a pariah.  Harvey Weinstein is serving a 23-year prison sentence.  There are, of course, different reasons for each of these changes, but they all once seemed unthinkable.  Some are small and some are large.

In addition to the current debate about statues/flags and names, same-sex marriage is the other huge issue about which, when public attitudes suddenly and radically changed for the better, advocates happily said things like: "I thought that, if this ever happened, it certainly would not be in my lifetime."

Here, I first want to discuss the current reconsideration of Confederate and other racist iconography, offering some examples that I think are especially telling.  But my larger point, telegraphed in the title of the column, is that I think the position that Joe Biden and others have taken -- yes to ending idolatry of traitors, no to similar treatment of slave-owners and others -- is the equivalent of the creation of so-called civil unions during the years prior to the acceptance of same-sex marriage.

Some Puzzles in Espinoza v. Montana Dept of Revenue

by Michael C. Dorf

The big news in yesterday's SCOTUS ruling in Espinoza v. Montana Dep't of Revenue is that there is very little remaining "play in the joints" between the First Amendment's Free Exercise and Establishment Clauses. That's a quote from the two most recent previous Chief Justices: Chief Justice Burger writing for the Court in Walz v. Tax Comm'r (1970) and Chief Justice Rehnquist writing for the Court Locke v. Davey. Play in the joints is a federalism-friendly idea. It allows that some states have some discretion in deciding how to treat religion and religious institutions. The Free Exercise Clause limits the ability of states to act on hostility towards religion, while the Establishment Clause limits their ability to favor religion, but there is a range of permissible policies in between. Thus, in Locke, the Court allowed the State of Washington to provide scholarships to postsecondary students so long as they did not use them to study "devotional theology." Although the federal Establishment Clause would allow the money to be spent that way (because the students rather than the state would choose the course of study under a generally neutral program), Washington was allowed to take a somewhat stricter view of church/state separation without being deemed to run afoul of the federal Free Exercise Clause.

The majority opinion of Chief Justice Roberts in Espinoza nominally leaves Locke undisturbed, distinguishing rather than overruling it on two grounds: (1) Montana's exclusion of religious institutions from its scholarship program is based on their religious status rather than the use to which the funds would be put, as in Locke; and (2) a “historic and substantial” tradition of not funding the clergy that does not extend to not funding education at religious schools. Whether these distinctions and thus the play-in-the-joints principle itself survive in the long run remains to be seen. Justice Breyer writes in dissent that the Court renders the play-in-the-joints principle "a shadow of its former self." And elsewhere in his majority opinion, CJ Roberts notes that Justices Thomas and Gorsuch have questioned the status/use distinction (as they do again in concurrences in Espinoza) and suggests that in a future case the Court could eliminate it. If so, that would mean that point (1) would no longer distinguish Locke. And even if the Court would adhere to point (2), that would restrict the play-in-the-joints idea to the very narrow category of state decisions not to fund the clergy themselves, as opposed to a wide range of other funding decisions.

Accordingly, it is fair to read Espinoza as very substantially undercutting the freedom of action of states with respect to religion. In that respect, it's 5-4 against "states' rights," with the conservatives against and the liberals for. But the substantive holding is not the only aspect of Espinoza that has peculiar implications. 

SCOTUS Erred In Seila Law But Congress Should Require A Heightened Self-Dealing Risk Before Creating Independent Agencies

By Michael C. Dorf

In his majority opinion in Seila Law v. Consumer Financial Protection Bureau, CJ Roberts summarized prior precedents on the scope of Presidential removal power as recognizing "only two exceptions to the President’s unrestricted removal power.  . . . Congress [can] create expert agencies led by a group of principal officers removable by the President only for good cause [and] provide tenure protections to certain inferior officers with narrowly defined duties." The CFBP Director is an individual, not a group, so he doesn't fall within the first exception. And the CFBP has broad and far-reaching duties, so the Director doesn't fall within the second exception either. Thus, according to the majority, the restrictions on at-will Presidential removal of the Director are unconstitutional.

Justice Kagan's dissent is very persuasive. The Constitution's text contains no removal limit at all, and there is nothing in the Court's prior cases to suggest that Congress may not combine the two kinds of limits in the CJ's exceptions or, for that matter, that establishes any general rule of the sort the Chief Justice finds. Meanwhile, she derives from history a very different sort of limit, beginning in the earliest days of the Constitution. Justice Kagan writes:

Congress took the first steps— which would launch a tradition—of distinguishing financial regulators from diplomatic and military officers. The latter mainly helped the President carry out his own constitutional duties in foreign relations and war. The former chiefly carried out statutory duties, fulfilling functions Congress had assigned to their offices. In addressing the new Nation’s finances, Congress had begun to use its powers under the Necessary and Proper Clause to design effective administrative institutions. And that included taking steps to insulate certain officers from political influence.

The history Justice Kagan cites suffices to show why the majority is wrong. Outside the area of foreign and military affairs, the Constitution leaves to Congress the decision whether to insulate the holders of offices it creates from Presidential dismissal absent good cause. But to say that Congress has (or even ought to have) unreviewable authority in some area is not to say how Congress ought to exercise it. Congress has sometimes created independent agencies without a good policy justification for doing so. And while that oughtn't affect the constitutionality of those agencies, Congress's promiscuity in this area probably plays a psychologically causal role for some of the conservative Justices who favor a stricter constitutional approach.

Two Cheers for the Roberts Concurrence in the Judgment in June Medical

by Michael C. Dorf

Unsurprisingly and (mostly) appropriately, the big news in the SCOTUS decision in June Medical Services v. Russo is that, as the NY Times headline put the point, "Supreme Court Strikes Down Louisiana Abortion Restrictions." The fact that Chief Justice Roberts was willing to cast the fifth vote to invalidate any state abortion restrictions is a big deal. As I explain below, it hardly guarantees that he will in the end cast a fifth vote to retain abortion rights in the future, but at the very least it buys time. That is no small thing. Thus one cheer.

The Chief Justice should also be praised for not hiding behind procedural legerdemain. The dissenters say that there needs to be a full-dress trial in Louisiana while its law is in effect before a court can strike it down, notwithstanding the fact that it is identical to the Texas law struck down four years earlier by the SCOTUS in the Whole Woman's Health case. Yet that course would invite and reward defiance of SCOTUS precedent. The undue burden test of Planned Parenthood v. Casey and Whole Woman's Health is fact-sensitive, but construing it as so fact-sensitive as to require a full trial in every state would be a roadmap to overturning the abortion right in all but name.

So why do I withhold the third cheer for the Chief Justice? Two aspects of his opinion trouble me.

Is Living Constitutionalism our Law? A Response to Charles Barzun and Jack Balkin

By Eric Segall

Last Wednesday I had the great privilege of recording my first Supreme Myths Podcast/Video with Yale Law Professor Jack Balkin. Also last week, Professor Charles Barzun completed a three-part series on Balkinization on living constitutionalism and originalism. Both Balkin and Barzun share some common views about constitutional interpretation, judicial review, and the relationship between originalism and living constitutionalism that I will address in this post.

Justice Alito's Opinion in Dep't of Homeland Security v. Thuraissigiam Reveals Why "Custody" in the Narrow Sense Should Not Be a Requirement for Habeas

by Michael C. Dorf

There is much that's wrong with Justice Alito's majority opinion for the Court in Dep't of Homeland Security v. Thuraissigiam, but I want to begin by acknowledging that there's something basically right about Thuraissigiam: Justice Alito is right that the writ of habeas corpus is typically said to be available only as a means of challenging custody. The disagreement in Thuraissigiam concerns the question of what counts as a challenge to custody. I want to suggest here that the defects in Justice Alito's opinion illustrate a flaw in our familiar way of talking about habeas as a means of challenging unlawful detention. Habeas has long been and should be broader than that. It is a means of challenging substantial restraints on liberty, which include detention but also other kinds of government action.

Keeping the Troops in the Barracks

by Neil H. Buchanan

Every month, week, and day of the Trump Administration has been shocking and disorienting.  It has become a cliche to say that "this is a new low" and that maybe there is no bottom at all.  Even in that context, I believe that June 2020 is one of the most consequential months in American history, for better and for worse -- but mostly for better.

My new two-part series of columns on Verdict reflects upon the better-and-worse aspect of this month.  Part 1 was published yesterday: "Trump’s Upcoming Refusal to Leave Office: The Good News."  Part 2 landed on the virtual newsstands today: "Trump’s Upcoming Refusal to Leave Office: The Very Bad News."  Even though I note that the bad news is "very bad" but leave the good news unmodified, this has still been a good month overall, because until now there was almost no good news at all.  Relatively speaking, things are a lot better.

The reason that I am suddenly less pessimistic -- and in less guarded moments actually somewhat optimistic -- is that there has been a sudden willingness on the part of the political and media classes to stop minimizing Donald Trump's danger to the republic and the rule of law.  Even though Trump has been appropriately criticized and reviled throughout his presidency, people still acted as if the foundations of the country, including fair elections and the presumption that a losing incumbent would leave office peacefully, were not under sustained assault.

That has now changed.  And even though it is frightening to look at the world clearly, at least people are now looking and increasingly being willing to admit what they are seeing.

What is frightening?  Almost everything.  Here, I discuss one of the most extreme dangers facing the country, which is the possibility that Trump will use military and paramilitary violence to stay in office.  Yes, people are finally conceding that this is worth worrying about.  Finally.