tag:blogger.com,1999:blog-369517522024-03-28T07:44:34.844-04:00Dorf on LawOpinionated Views on Law, Politics, Economics, and More from Michael Dorf, Neil Buchanan, Eric Segall, & (Occasionally) OthersMichael C. Dorfhttp://www.blogger.com/profile/02021009233932690926noreply@blogger.comBlogger5285125tag:blogger.com,1999:blog-36951752.post-16635117997509798322024-03-28T07:43:00.004-04:002024-03-28T07:43:45.664-04:00The Don’t Say Gay Settlement: A Papier-Mâché Shield<div style="text-align: center;"><i>Note to readers: This guest column was written by Donald J. Murdaugh, Class of '25 at the University of Florida Levin College of Law.</i></div><div style="text-align: center;"><i> </i></div> <div><p>
</p>
<p style="line-height: 19.2pt;"><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">As many readers of this blog are aware, in 2022, during the heat
of his war against “woke,” Florida Governor Ron DeSantis signed into <a href="http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=1000-1099/1001/Sections/1001.42.html">law</a>
the bill known colloquially as Don’t Say Gay. A little over two weeks ago, a
group of plaintiffs who had challenged the law’s constitutionality in federal
court signed a <a href="https://www.politico.com/f/?id=0000018e-2fc2-dd9d-a5bf-effb6de60000">Settlement
Agreement</a> (the “Settlement”) with the Florida Department of Education (“DoE”).
The group of plaintiffs, comprising students, parents, educators, and
pro-LGBTQ advocates, hailed the Settlement as a victory that protects civil
liberties for LGBTQ students and educators. Specifically, their attorney </span><a href="https://www.nytimes.com/2024/03/11/us/florida-dont-say-gay-law-settlement.html"><span style="font-family: Roboto; font-size: 11.5pt;">claimed</span></a><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;"> that the Settlement
“safeguards against hate and bullying” and said, “Simply put, the State of
Florida has now made it clear that L.G.B.T.Q.+ kids, parents and teachers in
Florida can, in fact, say they are gay.”</span></p>
<p style="line-height: 19.2pt;"><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">Given the optimism of that statement, it is surprising that DeSantis
claimed victory as well. In a </span><a href="https://www.nytimes.com/2024/03/11/us/florida-dont-say-gay-law-settlement.html"><span style="font-family: Roboto; font-size: 11.5pt;">statement</span></a><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;"> from the Governor’s
office, DeSantis asserted that the Settlement – by allowing the law to remain
on the books – was a win for children who must be “protected from radical
gender and sexual ideology in the classroom." But if DeSantis is happy (or
at least says that he is), and the law remains in place, what exactly did the
Settlement accomplish?</span></p>
<p style="line-height: 19.2pt;"><i><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">The New York Times</span></i><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">, echoing what appears to be the general
consensus, </span><a href="https://www.nytimes.com/2024/03/11/us/florida-dont-say-gay-law-settlement.html"><span style="font-family: Roboto; font-size: 11.5pt;">offered</span></a><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;"> this summary of the
settlement:</span></p>
<p style="line-height: 19.2pt;"></p><blockquote><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">The settlement language, which the state must share with
Florida’s 67 public school districts, makes clear that the law does not
restrict "literary references to a gay or transgender person or to a same-sex
couple" in public school classrooms. It says that L.G.B.T.Q. references are not
prohibited in literature, classroom discussions, students’ academic work or its
review. Nor are such references prohibited when it comes to teachers’ spouses
or partners, or any other context outside of instruction.</span></blockquote><p></p>
<p style="line-height: 19.2pt;"><i><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">The Times</span></i><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;"> goes on to list examples of clarifying
language that emphasize that the statute was designed to apply neutrally to both
hetero- and non-heterosexual students and educators. As a believer in
affirmative action, I view neutrality in a culture war statute as already a bit
concerning, given the historical vulnerability of the gay community in America
and the demonstrable harm that comes from facially neutral laws that are not
neutrally enforced. Colorblindness, for example, has worked wonders for racial
minorities, hasn’t it? If you’re not convinced, read Eduardo Bonilla-Silva’s </span><a href="https://rowman.com/ISBN/9781538151419/Racism-without-Racists-Color-Blind-Racism-and-the-Persistence-of-Racial-Inequality-in-America-Sixth-Edition"><span style="font-family: Roboto; font-size: 11.5pt;">Racism Without Racists</span></a><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;"> for an in-depth
empirical analysis of how colorblindness masks racist ideology and erodes
interracial relations.</span></p>
<p style="line-height: 19.2pt;"><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">But how much legal force is actually attached to the clarifying
language that the LGBTQ community is currently celebrating? Put another way,
how secure should LGBTQ students, parents, and educators (or non-LGBTQ folks
who simply wish to discuss real life on a school campus) be in feeling that
they are no longer being targeted by Florida’s government?</span></p>
<p style="line-height: 19.2pt;"><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">The answer -- which every news organization missed, and which the
plaintiffs’ attorneys are likely trying to avoid admitting publicly -- is not
at all. I am normally a glass-half-full type of person, but it is frankly impossible
to find a victory in this Settlement for the plaintiffs and the LGBTQ community.
Sadly, this Settlement was unequivocally a victory for DeSantis, with no genuine
compromise on his part. The real result of the Settlement is that DeSantis (1) successfully
removed a group of plaintiffs from this and future potential litigation, (2) allowed
Florida Republicans to leave the Don’t Say Gay statute in place and untouched, and
(3) created an opening for DeSantis to claim that he’s somehow moderating his
views.</span></p>
<p style="line-height: 19.2pt;"><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">Regarding the first point, paragraph (1) of the Settlement
requires that the plaintiffs drop the current case and “[r]elease and forever
discharge” the defendants for any actions that the plaintiffs “raised or could
have raised” in this case, including any future challenges to the law’s
constitutionality. Written so broadly, this provision at least arguably estops
the named plaintiffs from bringing <i>any</i> challenge not just to the Don’t
Say Gay law itself but also to its enforcement. Cross those potential future
plaintiffs off the list.</span></p>
<p style="line-height: 19.2pt;"><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">Regarding the second point above, the Don’t Say Gay law remains
in place and <i>untouched</i>. I emphasize that word because there is no
provision in the Settlement that could lead anyone to reasonably believe that
the Settlement requires any substantive change either to the law or its
enforcement. </span></p>
<p style="line-height: 19.2pt;"><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">As a threshold matter, private contracts, even if mediated by a
District Court, do not have the force of law. The purportedly clarifying
language in the Settlement can therefore have no effect on how the statute will
be interpreted by a federal or state court. At most -- and this point is in
fact the only positive impact that the Settlement could have on civil liberties
– the Settlement sets out certain concessions that the State’s executive made
during this litigation as to its own interpretation of the legislature’s intent.
That, however does not preclude the DoE from reinterpreting the language in the
future; it does not stop a future judge from concluding that the law means
something else entirely; and the conceded policy interpretations will likely
have very little, if any, persuasive (much less precedential) value in any
future challenges to the law. A hypothetical plaintiff might claim, for
example, that the DoE has erroneously defined the term “classroom instruction”
because the definition set forth in the Settlement created some sort of
“executive custom” that was not codified into policy. Unfortunately, no judge will
be required to take that claim seriously, unless the judge chooses to use it to
craft their own definition that <i>then</i> becomes law. And barring any
subsequent legislative action, this Settlement does nothing to change the plain
meaning of the statute itself.</span></p>
<p style="line-height: 19.2pt;"><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">The Settlement also contains two glaring curiosities that, shockingly,
seem to have gone unnoticed. The first is that the clarifying language – the
safeguards that Floridians are supposed to use as their shield against discriminatory
educational practices – appear only in the recitals of the contract. I am a
current law student who took Legal Drafting last semester, so I remember
clearly that the recitals in a contract are unenforceable as a matter of law.
The purpose of recitals is merely to introduce background material to help
illuminate the purpose of the agreement. Any statement in the recitals cannot
be held against a party to the contract without in some way being incorporated by
an actual provision in the contract.</span></p>
<p style="line-height: 19.2pt;"><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">Even worse, the only substantive provision in the Settlement that
might change the actions of DoE states, in its entirety: </span></p>
<p style="line-height: 19.2pt;"></p><blockquote><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">2. Through counsel, the Florida Department of Education shall
provide a copy of this Agreement, including the Recitals set forth above, to
the school board of each of Florida’s school districts. In so doing, counsel
shall note that Recital F [the 5-page recital that encompasses all clarifying
language] above sets forth considered positions the State of Florida has taken
in court about the scope and meaning of the Statute and shall encourage the
school districts to send a copy of this Agreement to the principals of the
schools within their respective districts.</span></blockquote><p></p>
<p style="line-height: 19.2pt;"><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">That’s it. Every other paragraph within the <i>enforceable</i>
section of the contract relates to the standard general provisions. This is the
only provision that requires any action on the part of the DoE – and what it
requires is nothing at all.</span></p>
<p style="line-height: 19.2pt;"><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">Let’s discuss what the provision does not do. It does not
require the State to amend the DoE’s policy to codify the language in the
recitals. In fact, it does not require the State to amend any policy at all. It
does not issue an instruction that the recitals shall be conceded in any future
litigation challenging the statute. And it does not bar the DoE from taking
action against educators or students who may rely on the interpretations set
out in the clarifying language. For example, if an educator had some sort of
“safe space sticker,” as referenced on page 5 of the Settlement under the
Bullying heading, this Settlement <i>does not</i> <i>stop</i> the State from
requiring the removal of the sticker, even though such an enforcement action
flies directly in the face of this Settlement. </span></p>
<p style="line-height: 19.2pt;"><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">Equally as appalling as what is not contained in that paragraph
is what is actually included. The only action that DoE must take is to send the
Settlement to the school districts, informing them that the language in the
recitals “sets forth considered positions” that Florida has taken in court
about the statute’s interpretation. But that is devoid of any real meaning. A
“considered position” is as forceful to a board in shaping its policy
guidelines as it would be for the President, say, to tweet that the Vice
President should unilaterally overturn the results of an election. What is law
is law, and an executive’s opinion means nothing if it will not be enforced.</span></p>
<p style="line-height: 19.2pt;"><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">Even if these “considered positions” were somehow supposed to
shape policy at the district level, however, the terms of the Settlement do not
require them to be taken seriously. There is nothing that could stop a district
board member from hitting “send to junk” after receiving this Settlement in an
email from the DoE. The DoE is supposed to “encourage” school districts to
forward the Settlement to principals, but there is absolutely no incentive to
comply – and no consequence for failing to comply – with the provision. </span></p>
<p style="line-height: 19.2pt;"><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">The reality is that this settlement agreement is a promise to do
nothing, and it’s even more hollow than that. It’s not merely <i>not</i> a
victory for the plaintiffs; it gives DeSantis cover to appeal to moderates. He
continues to claim that his “war on woke” is not as big of a deal as it is, and
this Settlement allows him to pretend to have extended an olive branch to
people who have fought him the hardest. News reports about the settlement have
been very both-sides-y, claiming that each side got something it wanted. In
fact, however, only one side won, and now DeSantis can say to America that the
Don’t Say Gay governing philosophy is acceptable even to the people who sued
him.</span></p>
<p style="line-height: 19.2pt;"><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">Being the eternal optimist that I am, I am trying to convince
myself that DeSantis’s DoE might actually abide by the language set forth in
the Settlement. He would certainly seem to have an incentive to order them to
do so, given that his political career is now as cold as a crisp morning in an Arctic
winter. He was never supposed to act against the woke mob; he was only supposed
to yell and scream about it. His poll numbers after suing Disney, banning
books, and passing this very bill are proof of that. Indeed, this Settlement hands
him the kind of toothless platitude that his platform thrives on: he gets to keep
the bill intact for his conservative supporters, even as he claims that he's
much more moderate, likeable, and human than everyone thought. </span></p>
<p style="line-height: 19.2pt;"><span style="color: #727272; font-family: Roboto; font-size: 11.5pt;">But if the political soil in Florida ever again becomes fertile ground
for right-wing extremism (if it ever wasn't), this Settlement will provide no obstacle
to prevent DeSantis (or his successor) from re-launching an assault against his
favorite scapegoats.</span></p></div>Neil H. Buchananhttp://www.blogger.com/profile/17577335934943074615noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-90331475029649935032023-11-13T07:00:00.007-05:002024-03-27T08:49:28.326-04:00One of Judge Luttig's 14th Amendment, Section 3 Arguments is Too Clever By At Least Half<p>As attentive readers of this blog are aware, I have a modest disagreement with my friend and co-blogger Professor Segall about whether Donald Trump should be disqualified from the 2024 Presidential ballot pursuant to Section 3 of the 14th Amendment. <a href="https://www.dorfonlaw.org/2023/10/section-3-originalist-chaos-and-why.html" target="_blank">Professor Segall thinks</a> that there are too many difficult questions to which the text and original understanding do not unequivocally speak and that disqualifying Trump could lead to violence by his supporters; <a href="https://www.dorfonlaw.org/2023/10/the-problem-with-beating-trump-at-polls.html" target="_blank">I think</a> some of the questions Professor Segall identifies as dividing scholars are actually pretty easy to resolve (against Trump), and while I acknowledge that it would be better to beat Trump at the polls than to disqualify him, the fact that he has shown himself willing to use violence to challenge the results of an election make that a problematic route; I also regard Trump as an existential threat to constitutional democracy and much else, so I'm willing to support any peaceful and legal means to prevent him from regaining the White House.</p><p>(Retired) Judge Luttig--whom I regard as a great patriot for his role in persuading Mike Pence to ignore Trump's entreaties and threats leading up to January 6, 2021--has been one of the most vocal proponents of disqualifying Trump. I agree with various of the points he makes, especially that Section 3 is self-executing in the sense that it does not require congressional action to be effective. As I have previously explained, the last sentence of Section 3 ("But Congress may by a vote of two-thirds of each House, remove such disability") pretty clearly implies that absent congressional action, the default is disqualification.</p><p>In saying that some of the objections to Trump's disqualification can be easily dispatched, I would not say that every argument favoring disqualification is persuasive. In particular, Judge Luttig recently made an argument that strikes me as very much mistaken. In <a href="https://www.youtube.com/watch?v=Ll4DFbHrOmA&t=268s" target="_blank">an interview on MSNBC</a>, Judge Luttig said that both Trump's lawyers <i>and </i>the lawyers who otherwise agree with him that Trump should be disqualified have been reading Section 3 erroneously. These other lawyers, Judge Luttig says, read the provision to disqualify someone who, having previously taken an oath to support the Constitution, engages in insurrection or rebellion against the United States or the authority of the United States. But that's not what Section 3 says, according to Judge Luttig. It says that a prior oath-taker is disqualified for insurrection or rebellion <i>against the United States Constitution.</i> And insurrection or rebellion against the Constitution, Judge Luttig suggests, is broader than insurrection or rebellion against the U.S. or its authority. In the MSNBC segment, he describes Trump's various efforts to remain in power past the end of his term as insurrection or rebellion against the Twentieth Amendment, which says a term expires at noon on January 20th.</p><p>Wait, what? Here's the key text of Section 3: "No person shall . . . hold any office, civil or military, under the United States, . . . who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same . . . ." Although he didn't parse the language for the MSNBC interview, Judge Luttig's claim is that "the same" refers to "the Constitution of the United States" rather than "the United States."</p><p>That's a plausible reading of the text. Indeed, given the placement of the comma after the phrase "Constitution of the United States," one might even contend that Judge Luttig's reading is preferable--purely as a matter of punctuation--than the alternative reading. But the punctuation-based argument is hardly a slam-dunk. And more importantly, Judge Luttig's reading is contrary to how a competent speaker of the English language would ordinarily understand the phrase "insurrection or rebellion."</p><p>What does it even mean to "rebel" against the Constitution? Surely the term must connote something more than merely <i>violate </i>the Constitution. In New York State, every state and local official takes an oath (set forth in Article XIII, Section 1 of <a href="https://dos.ny.gov/system/files/documents/2022/01/Constitution-January-1-2022.pdf" target="_blank">the state constitution</a>) to support the Constitution of the United States. So far as I'm aware, other states follow the same practice. If every violation of the Constitution is an act of insurrection or rebellion against the Constitution, then every time a police officer conducts an unlawful search or seizure, that officer becomes ineligible to hold federal office--even if the officer would have qualified immunity in a civil suit.</p><p>Perhaps we might say that only the sorts of knowing or intentional constitutional violations that could give rise to civil liability rise to the level of insurrection or rebellion. Yet even that seems like quite an expansion of the meaning of the phrase "insurrection or rebellion." President Lincoln intentionally ignored Chief Justice Taney's ruling in <i>Ex Parte Merryman</i>, refusing to release prisoners who, according to Taney, had a right to habeas corpus because Congress, not the President, has the power to suspend the privilege of the writ. Although Lincoln had moral right on his side, the judgment of history is that Taney, not Lincoln, was right about habeas: suspension requires an act of Congress. But is there any possibility that the Reconstruction Congress that adopted the Fourteenth Amendment would have thought that Lincoln--in unlawfully and even unconstitutionally suspending habeas in order to suppress the Confederate insurrection/rebellion--thereby himself "engaged in insurrection or rebellion"? Of course not. And thus, even intentional constitutional violations do not necessarily count as insurrection or rebellion.</p><p>To be clear, in the Lincoln example, I'm not asking after the subjective intentions and expectations of the Fourteenth Amendment's drafters. I'm saying that construing Section 3 to refer to insurrection or rebellion <i>against the Constitution</i>--as Judge Luttig would construe it--is not only contrary to the natural meaning of the phrase "insurrection or rebellion" but leads to bizarre results. The extreme awkwardness of Judge Luttig's reading of Section 3 thus explains why even the lawyers pushing for Trump's disqualification have not relied on it.</p><p>Finally, Judge Luttig's reading is unnecessary. Because a reading of <i>insurrection or rebellion against the Constitution </i>would have to refer to a class of actions substantially narrower than all intentional acts that merely <i>violate</i> the Constitution, Judge Luttig's reading ultimately calls for the same sort of inquiry that the more obvious reading of Section 3 does: courts must decide how much of an affront to the United States and its Constitution is required before they can say that someone has engaged in insurrection or rebellion. Creating the Confederacy and waging war against the Union Army on its behalf clearly count. Most mere constitutional violations without any violence or threat thereof do not. I believe that Trump's actions leading up to and on January 6, 2021--including his failure to intervene for hours--count; others will disagree; that disagreement will not be resolved by staring hard at the placement of a comma in Section 3.</p>Michael C. Dorfhttp://www.blogger.com/profile/02021009233932690926noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-60675510027203705662024-03-27T07:00:00.003-04:002024-03-27T07:25:57.068-04:00The Potential Role of the Conscience Objection in a SCOTUS Decision Rejecting Plaintiffs' Standing in the Mifepristone Case<p>Cutting to the chase, I agree with <a href="https://www.scotusblog.com/2024/03/supreme-court-appears-likely-to-allow-abortion-drug-to-remain-available/" target="_blank">Amy Howe's assessment</a> (on SCOTUSblog) of yesterday's Supreme Court oral argument in <i><a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-235_q8l1.pdf" target="_blank">FDA v. Alliance for Hippocratic Medicine</a> </i>that, one way or another, SCOTUS will likely reverse the Fifth Circuit, with the result that mifepristone remains available without the requirement of in-person dispensation and in accordance with the protocol approved in 2016. The simplest way to get there would be to hold that the plaintiffs lack standing. As <a href="https://www.dorfonlaw.org/2024/03/the-supreme-court-abortion-and-standing.html" target="_blank">Professor Segall argued</a> on this blog on Monday, although standing doctrine is notoriously manipulable, the plaintiffs' argument for standing is extraordinarily weak here.</p><p>To recap very briefly, here's the chain of causation the plaintiffs invoke to try to demonstrate an imminent injury:</p><p><i>(A) The FDA changes in 2016 (allowing mifepristone to be used somewhat later in pregnancy than before, at a lower dose, and without the requirement to report certain adverse events) and 2021 (allowing dispensation by mail or equivalent) increased the risk that people ending their pregnancies with mifepristone would experience complications requiring emergency room visits;</i></p><p><i>(B) Those extra trips to the ER in turn increase the risk that one or more of the plaintiffs or their members who are ER physicians will need to treat such a patient;</i></p><p><i>(C) Providing such treatment sometimes amounts to completing and thus participating in the performance of an abortion (even when the physician merely removes dead tissue), which violates the moral scruples of those plaintiff ER physicians;</i></p><p><i>Thus,</i></p><p><i>(D) Plaintiffs have demonstrated that FDA's 2016 and 2021 actions imperil plaintiffs by trenching on their anti-abortion moral scruples.</i></p><p>Much of the early phases of the oral argument focused on whether that string of armbone-connected-to-the-wristbone-connected-to-the-fingerbone reasoning was too speculative to amount to an imminent injury. Based on the Court's prior cases, it almost certainly is too speculative but . . . wait for it . . . Justice Alito--champion of every plaintiff's day in court--thought this sort of statistical piling on was fine because the Court allowed standing to be shown this way in environmental law cases from the 1970s that the Court has all but repudiated in subsequent narrower decisions (like <a href="https://supreme.justia.com/cases/federal/us/568/398/" target="_blank">this one authored by Justice Alito himself!</a>).</p><p>Accordingly, although I can probably count three votes for saying that plaintiffs' causal chain is too attenuated, I don't see the Court getting to five that way. However, a holding for the FDA based on lack of standing is reachable on other possible grounds. Let's consider two related ones.</p><p>(1) Because of federal statutory protection for <a href="https://www.law.cornell.edu/uscode/text/42/238n" target="_blank">institutions</a> and <a href="https://www.law.cornell.edu/uscode/text/42/300a-7" target="_blank">individuals</a> with conscientious objections to performing abortions (or doing what they regard as participating in abortions), Step (C) of the plaintiffs' chain of reasoning seems especially unlikely to materialize. If a woman who took mifepristone visits the ER because of complications (that are somehow traceable to the 2016 or 2021 changes) and one of the plaintiff doctors is on call, that doctor can simply decline to provide treatment.</p><p>The plaintiffs' lawyer had essentially one response to this seemingly fatal objection to her clients' position: in a medical emergency, there will not be time to secure the legal exemption. But that's got to be wrong, even putting aside the fact that, as anyone who has ever spent hours waiting to be seen in an emergency room knows, the term "emergency room" is highly misleading. Federal law's conscience objection forbids after-the-fact punishment of medical personnel who refused to participate in an abortion; the plaintiff doctors do not need to treat a patient suffering mifepristone-related side effects while waiting for authorization from hospital bureaucrats to refuse treatment. They have the authorization already from federal law.</p><p>I'm setting aside the repugnant cruelty of an exercise of "conscience" on the part of an ER doctor who refuses to treat a patient in need based on a moral judgment about the <i>prior </i>acts that brought the patient to the ER. If I were at a restaurant and I saw someone choking on a piece of meat, I would surely try to help clear their airway, notwithstanding the fact that as a vegan I disapprove of meat eating. I would have thought that the ethical obligation of medical professionals is to treat rather than to judge their patients. Apparently the version of Hippocrates celebrated by the Alliance for Hippocratic Medicine not only opposed abortion (as reflected in the traditional oath) but endorsed the proposition <i>first, last, and always, do no good for anybody connected to an abortion. </i>But I digress.</p><p>It's very easy to get to four votes for the proposition that the federal conscience objection means the plaintiffs' claim for standing fails at step (C). In addition to the three Democratic appointees, there's Justice Kavanaugh, who asked exactly one question during the entire oral argument. He asked the Solicitor General to confirm that "under federal law, no doctors can be forced against their consciences to perform or assist in an abortion." When she so confirmed, Justice Kavanaugh said "thank you" and then remained silent for the duration. I would thus expect that if the Court finds no standing on this basis, the opinion would make very clear that the conscience objection applies.</p><p>(2) Justice Jackson at various points suggested that the problem with the plaintiffs' case was the mismatch between the alleged injury--violation of their conscience--and the remedy--invalidation of the FDA authorizations. If there's an injury to the plaintiffs' conscience, Justice Jackson said, then the remedy should be expanded protection for conscience, not invalidation of the FDA action for everyone else. Justice Gorsuch jumped on this bandwagon to raise his familiar objection to nationwide injunctions: all of the other actors who aren't parties are being subject to the remedy here.</p><p>In her rebuttal, SG Prelogar pushed back against what she took to be the Jackson/Gorsuch position that the Fifth Circuit opinion should be vacated and narrower relief--in the form of some broader guarantee of conscience--should be substituted. As she noted, the plaintiffs sued the FDA, which doesn't play any role in administering the conscience exemptions, so that's not the kind of relief that it can be ordered to provide. That's clearly right as a matter of law, but I wonder whether SG Prelogar (who, to be clear, is among a handful of the very best advocates to appear before the Court in the roughly 35 years since I've been paying attention) might have phrased the point a bit differently so as not to seem to be pushing back against the Jackson/Gorsuch view. </p><p>With the benefit of some extra time, the SG might have put the point this way: <i>Justice Jackson and Justice Gorsuch, I completely agree with your point that the relief the Fifth Circuit granted doesn't match the injury alleged. The decision below thus has to be reversed, but the government has no objection to this Court doing so by making clear that the statutory conscience objection is sufficiently capacious to address all of the plaintiffs' concerns. </i>Such an answer would have married the Jackson/Gorsuch position to the Kavanaugh position, thus locking in at least five votes.</p><p>That said, I suspect that the Court will get to that result anyway and that Chief Justice Roberts and Justice Barrett would also join. I could even imagine Justice Thomas joining a decision based on standing (although he was not wholly off base to worry that under the government's view, no one ever has standing to challenge FDA approval of a drug, a point I'll discuss on Friday). The reason I say Justice Thomas might be in play is that he might regard the case as an opportunity to strike a final death blow to the broadest interpretation of the tester-plaintiff case of <i><a href="https://supreme.justia.com/cases/federal/us/455/363/" target="_blank">Havens Realty Corp. v. Coleman</a></i>, which seems to allow any organization that opposes any government policy to manufacture standing for itself by engaging in activities to oppose the policy (like using some of its resources to track and oppose the policy) and then claiming that the diversion of those resources is an Article III injury. If the plaintiffs are going to lose on standing grounds anyway, Justice Thomas might calculate that it's worth joining the majority in exchange for language repudiating that broad view of <i>Havens</i>.</p><p>Hence, we could be left with a Christmas tree of an opinion on standing grounds: Justice Kavanaugh gets an endorsement of the broad conscience objection; Justice Barrett, who also expressed interest in the scope of the conscience objection, shares that present; Justice Gorsuch gets some further repudiation of nationwide injunctions; Justice Thomas gets an express narrowing of <i>Havens</i>; and Chief Justice Roberts gets to avoid having his beloved Court further tarnished by another obviously ideological decision<i>. </i>The result could thus be 8-1, with only Justice Alito refusing to go along with any ruling that does not restrict abortion; he would get (and deserve) a lump of coal.</p>Michael C. Dorfhttp://www.blogger.com/profile/02021009233932690926noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-11167884562055164482024-03-26T14:04:00.001-04:002024-03-26T14:04:24.958-04:00President for Life? Easily Done!<p>I often point out that politicians and media commentators in the US are too often captives of the <a href="https://www.dorfonlaw.org/2022/10/how-does-conventional-wisdom-become.html" target="_blank">conventional wisdom</a>. Although that makes them lazy and thus dangerous, they are at least saying things that they think are <i>thoughts</i>. That is, they will talk about Social Security supposedly going bankrupt (not true), or they will say that Democrats should not tell people how to "feel" about inflation (which is <a href="https://www.dorfonlaw.org/2024/03/why-worry-only-about-inflation-but-not.html" target="_blank">silly</a>), but they say these things because they think that it is important to take a position on a policy issue. Mindlessly aligning oneself with the conventional wisdom is lazy and almost always gets it wrong, but it passes for thinking in a minimal sense.</p><p>Arguably worse would be the rote repetition of statements that seem to be uncontroversial but have become anything but. Are there any examples of that? Yes, there is at least one, and it is unfortunately a very high-stakes error. Countless commentators and politicians -- and this is truly non-ideological and bipartisan -- casually refer to Donald Trump's possible return to the White House for "his second four-year term" or similar language. This is based on the unexamined belief that Trump would serve the maximum of two terms and then leave office peacefully. Why? Because the Constitution says so. And we know how much Trump respects the Constitution.</p><p>We need to stop taking it for granted that Trump would serve only one more term. I have mentioned this a few times in recent years (most recently <a href="https://www.dorfonlaw.org/2024/01/for-sale-or-disposal-one-governor.html" target="_blank">two months ago</a>), but I have not gone into any detail about how he would pull it off. I have either left the mechanism by which Trump would become President for Life unexplored or, at most, I have suggested that he will order the Republicans to amend the Constitution to give him what he wants (and that they will do so eagerly).</p><p>I am not completely alone in worrying about this, of course. Two weeks after the 2020 election, when Trump's attempted coup was taking shape, I wrote "<a href="https://verdict.justia.com/2020/11/19/yes-trump-is-still-engaged-in-an-attempted-coup-and-yes-it-might-lead-to-a-constitutional-crisis-and-a-breaking-point" target="_blank">Yes, Trump Is (Still) Engaged in an Attempted Coup; and Yes, It Might Lead to a Constitutional Crisis and a Breaking Point</a>," on <i>Verdict</i>. I then received a very positive email from a reader, who offered this thought about what Trump would have done if he had succeeded in stealing that election from Joe Biden:<br /></p><p></p><blockquote><span>I think very quickly (say within 2021 or maybe early 2022) we'll
see an assault on the 22nd Amendment. I think it'll start off in Trump's
usual way - he'll start off by making some jokes in which he references
how Supreme Court justices are selected for life and 'how great that
must be'. Then we'll see some out-there right wing media publications
post/publish a few op-eds supporting the overturning of the 22nd. I
think we've seen this playbook before (introduce
an outrageous idea, deny originating the idea, and then stand by as
Trump followers slowly, organically get behind the idea) and understand
how it'll play out from there.</span></blockquote><p> That scenario nicely relied on Trump's tried-and-true method of eroding norms and pushing boundaries. (Indeed, Trump's infamous "terminate the Constitution" line in late 2022 was <a href="https://www.politico.com/news/2022/12/05/trump-terminate-constitution-00072230" target="_blank">followed</a> by denials that he had ever said such a thing, with the usual silence from Republicans helping to push the Overton window further and further to the right.) No matter how he did it, however, my assumption all along has been that the Twenty-Second Amendment would need to be either amended or explicitly ignored for Trump to continue as President.</p><p>It turns out that that would not even be necessary. The Twenty-Second Amendment would, in fact, barely be a speed bump on Trump's road to staying in power.</p><p>In a way, this should not be a surprise, given how sparse the Constitution can be. People are surprised to learn that, say, states are not constitutionally required to determine their Electoral votes by popular election. And when Mitch McConnell hatched the cynical idea of simply refusing to hold a vote on Barack Obama's nominee to replace Antonin Scalia on the Supreme Court, people were stunned to learn that the Constitution's "advise and consent" clause was so general that it could be ignored.</p><p>The Twenty-Second Amendment is similarly poorly drafted. It <a href="https://constitution.congress.gov/constitution/amendment-22/" target="_blank">reads</a>: "No person shall be elected to the office of the President more than
twice, and no person who has held the office of President, or acted as
President, for more than two years of a term to which some other person
was elected President shall be elected to the office of the President
more than once." (The other sentence in Section 1 applied only to President Harry Truman.)</p><p>I re-read that sentence recently, and because I have learned to be as cynical as possible when thinking about how the Republicans might abuse the Constitution, I thought: "Wait a minute, '... elected ... more than twice'? '<i>Elected</i>'?! That is hardly the only way that a person could become President." I asked a member my crack team of research assistants to do a preemption check on this question, and sure enough, she found that others have noticed this potential loophole. Indeed, Congress's own "Constitution Annotated" website has a <a href="https://constitution.congress.gov/browse/essay/amdt22-1/ALDE_00001008/#essay-2" target="_blank">page</a> discussing precisely this question.</p><p>The idea is that a second-term President could win an election to become Vice President. If the new President were to die, the former President would ascend to the Oval Office again, even though he was not elected more than twice. More to the point regarding Trump, the idea all along could be for the person at the top of the ticket to resign at 12:01pm on January 20, 2029, giving the old President a fresh term. There are a number of variations on this scheme, but the essence of it is to use the word "elected" to defang the Twenty-Second Amendment.</p><p>The email that I received in November 2020 added this thought: "<span>And if Trump can't manage to get the
amendment itself altered? Well the 22nd only applies
to people 'elected' to the office of the President. As we're seeing
right now; Trump doesn't really need to be 'elected' to the office to
consider himself President." I view that as a version of my intuition that Trump would simply refuse to follow the law, but that would not even be necessary.</span></p><p>As it happens, there is one further nuance, which is that the <a href="https://constitution.congress.gov/constitution/amendment-12/" target="_blank">Twelfth Amendment</a> specifies that "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President." One could read 22 and 12 together to say that a two-term (or even 1.5-term) President is ineligible to be Vice President, meaning that the scheme would not work. But the Constitution Annotated essay addresses that issue with a question: "Is someone prohibited by the Twenty-Second Amendment from being 'elected' to the office of President thereby 'constitutionally ineligible to the office?'" An intentionalist would say yes, but a textualist would say no. Who here thinks that the Republicans would take the more responsible route? Driving the point home, the Constitution Annotated essay ends with this: "Note also that neither Amendment addresses the eligibility of a former two-term President to serve as Speaker of the House or as one of the other officers who could serve as President through operation of the Succession Act."<br /><br />My research assistant also found that this loophole has been the subject of at least two law review articles, although those were written from the standpoint of Republicans thinking in 2000 and 2016 that Bill Clinton was somehow going to install himself in the White House for additional terms. That grimly amusing paranoia on the anti-Clinton right highlights the difference between partisanship in the pre-Trump era and Republicans' hyperpartisanship today. It is impossible to imagine Democrats uniformly going along with such a scheme after either of those elections, partly because of their general timidity but mostly because there would be more than enough people in the party who would simply say no.</p><p>More to the point, the Democrats would worry correctly that the voters would absolutely hammer them in every subsequent election for their blatant power grab. Because Trump's Republican Party has no intention of allowing elections to get in their way in the future, they would not worry about such consequences.<br /></p><p>Of course, this all assumes that the Republicans will set up their one-party autocracy to look like a functioning democracy, using what I have <a href="https://verdict.justia.com/2020/02/20/banana-republic-or-legalistic-lawlessness" target="_blank">called</a> "legalistic lawlessness" to provide the veneer of legitimacy that elections and constitutions provide. And why would they not? Even Vladimir Putin once sat through a term as Russia's Prime Minister while one of his puppets served as President, and Putin also bothers to have sham elections.</p><p>If Republicans do indeed succeed -- through whatever means -- in getting Trump back into the White House next January, there is thus good reason to think that they will find it useful to go through the motions of making Trump the President for Life through purportedly legitimate legal means. This is the party, after all, that includes "constitutionalists" like Utah's Senator Mike Lee and others, who loudly insist that the US is a republic, not a democracy. That is, the Electoral College and the two-senators-per-state rule are not, in their minds, imperfections or historical accidents based on unprincipled compromises in drafting the Constitution. If they can say that the current text allows Trump to serve forever, that is what they will say.</p><p>In short, when any pundit or politician talks about "putting Trump in office for another four years," that is not wrong, exactly. After all, to be President for another 15 years, he would have to serve four. The idea that the Constitution would stop Trump from doing anything at all upon returning to the White House has always been a matter of wishful thinking, but it turns out that a perma-presidency would not even require blatant illegality. It only requires a compliant party backing him. And he certainly has that.<br /></p>Neil H. Buchananhttp://www.blogger.com/profile/17577335934943074615noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-65037926365219095462024-03-25T07:00:00.023-04:002024-03-25T07:00:00.245-04:00The Supreme Court, Abortion, and Standing in an Incoherent Abyss<p>Tomorrow, the Supreme Court will hear a made-up abortion<a href="https://www.scotusblog.com/case-files/cases/food-and-drug-administration-v-alliance-for-hippocratic-medicine-2/" target="_blank"> case</a> brought by anti-choice doctors because they want to do everything imaginable to make sure women cannot use abortion medications in states where abortion is legal. This suit is an attempt to change national policy regarding abortions brought by people who have suffered no injury at all and are unlikely to suffer any injury in the future. Of course, the Fifth Circuit Court of Trump found the plaintiffs had standing and then issued absurd rulings, which the Supreme Court stayed pending its decision in this litigation later this Term.</p><p>Given the incoherence and malleability of standing doctrine, anything can happen in standing cases and usually does. Yes, standing is the WWE of constitutional law: all show, no substance. And yet, there are rare extreme cases where the lack of standing is so obvious that reasonable people should agree the Court simply should not hear the case. This dispute is one of those.</p><p>The background to this case is <a href="https://slate.com/news-and-politics/2023/12/supreme-court-mifepristone-abortion-pill-case.html" target="_blank">well-summarized</a> by SLATE Supreme Court reporters Dahlia Lithwick and Mark Joseph Stern. Here is a summary based on their work:</p><p><span style="font-family: inherit;"><span style="background-color: white; color: #222222;">Most women seeking to terminate their pregnancies now use medication--a protocol that starts with mifepristone, which the Food and Drug Administration approved 24 years ago. (It’s used in combination with misoprostol, which can also terminate a pregnancy </span><a href="https://slate.com/news-and-politics/2023/04/mifepristone-ban-medication-abortion-still-available.html" style="background-color: white; border-bottom-style: solid; border-bottom-width: 2px; border-color: var(--theme-color,#ff0e50); box-sizing: inherit; cursor: pointer; outline-color: transparent; text-decoration-line: none; text-decoration: none; transition: color 0.12s ease 0s, fill 0.12s ease 0s, border-color 0.12s ease 0s, outline-color 0.12s ease 0s, outline-style 0.12s ease 0s;">on its own</a><span style="background-color: white; color: #222222;">.). Study after study after study </span><span style="background-color: white; color: #222222;">have <a href="https://www.nytimes.com/interactive/2023/04/01/health/abortion-pill-safety.html" target="_blank">shown </a>that this abortion method is safe and effective. The risk of complications from a medication abortion is </span><a href="https://www.supremecourt.gov/DocketPDF/23/23-235/284910/20231012165311306_Amicus%20Brief%20of%20American%20College%20of%20Obstetricians%20and%20Gynecologists%20et%20al..pdf" style="background-color: white; border-bottom-style: solid; border-bottom-width: 2px; border-color: var(--theme-color,#ff0e50); box-sizing: inherit; cursor: pointer; outline-color: transparent; text-decoration-line: none; text-decoration: none; transition: color 0.12s ease 0s, fill 0.12s ease 0s, border-color 0.12s ease 0s, outline-color 0.12s ease 0s, outline-style 0.12s ease 0s;">very low</a><span style="background-color: white; color: #222222;">. </span></span></p><p><span style="font-family: inherit;"><span style="background-color: white; color: #222222;">At first, the FDA required patients to visit their doctor three times over the course of treatment. By 2016 and 2021, however, the agency relaxed this in-person requirement, and today, it allows providers to prescribe the drugs via telehealth and have it mailed to patients with no in-person visit required.</span></span></p><p><span style="font-family: inherit;"><span style="background-color: white; color: #222222;">After the Supreme Court overturned </span><em style="background-color: white; box-sizing: inherit; color: #222222;">Roe</em><span style="background-color: white; box-sizing: inherit; color: #222222;"> and <i>Casey</i></span><span style="background-color: white; color: #222222;">, Alliance Defending Freedom—a far-right non-profit firm that opposes all abortions, filed this lawsuit with the goal of convincing judges to require the FDA to take mifepristone off the market across the country. To manufacture a plaintiff, ADF helped establish the “Alliance for Hippocratic Medicine,” a group of doctors strongly opposed to abortion. This organization was deliberately incorporated in Amarillo, Texas, </span><a href="https://slate.com/news-and-politics/2023/02/abortion-pill-outlawed-single-judge-real-possibility.html" style="background-color: white; border-bottom-style: solid; border-bottom-width: 2px; border-color: var(--theme-color,#ff0e50); box-sizing: inherit; cursor: pointer; outline-color: transparent; text-decoration-line: none; text-decoration: none; transition: color 0.12s ease 0s, fill 0.12s ease 0s, border-color 0.12s ease 0s, outline-color 0.12s ease 0s, outline-style 0.12s ease 0s;">so it could bring its suit</a><span style="background-color: white; color: #222222;"> before the one federal judge who sits in Amarillo: Matthew Kacsmaryk. He is a Trump appointee </span><span style="background-color: white; color: #222222;">who </span><a href="https://www.washingtonpost.com/politics/2023/04/08/abortion-pill-ruling-judge-matthew-kacsmaryk/" style="background-color: white; border-bottom-style: solid; border-bottom-width: 2px; border-color: var(--theme-color,#ff0e50); box-sizing: inherit; cursor: pointer; outline-color: transparent; text-decoration-line: none; text-decoration: none; transition: color 0.12s ease 0s, fill 0.12s ease 0s, border-color 0.12s ease 0s, outline-color 0.12s ease 0s, outline-style 0.12s ease 0s;">devoted his life</a><span style="background-color: white; color: #222222;"> </span><a href="https://www.nytimes.com/2023/04/07/us/politics/texas-judge-matthew-kacsmaryk-abortion-pill.html" style="background-color: white; border-bottom-style: solid; border-bottom-width: 2px; border-color: var(--theme-color,#ff0e50); box-sizing: inherit; cursor: pointer; outline-color: transparent; text-decoration-line: none; text-decoration: none; transition: color 0.12s ease 0s, fill 0.12s ease 0s, border-color 0.12s ease 0s, outline-color 0.12s ease 0s, outline-style 0.12s ease 0s;">to anti-abortion activism</a><span style="background-color: white; color: #222222;"> before becoming a judge. </span></span></p><p><span style="font-family: inherit;"><span style="background-color: white; color: #222222;">Kacsmaryk </span><a href="https://slate.com/news-and-politics/2023/04/matthew-kacsmaryk-mifepristone-medication-abortion-supreme-court.html" style="background-color: white; border-bottom-style: solid; border-bottom-width: 2px; border-color: var(--theme-color,#ff0e50); box-sizing: inherit; cursor: pointer; outline-color: transparent; text-decoration-line: none; text-decoration: none; transition: color 0.12s ease 0s, fill 0.12s ease 0s, border-color 0.12s ease 0s, outline-color 0.12s ease 0s, outline-style 0.12s ease 0s;">sided with the plaintiffs</a><span style="background-color: white; color: #222222;">, surprising no one, and overturned the FDA’s approval of mifepristone in a decision that </span><span style="background-color: white; color: #222222;">called into question the entire federal drug approval process (what these people won't do to limit women's choices). His decision would have allowed virtually anyone to object to FDA approval of any drug, for any reason. The Fifth</span><span style="background-color: white; color: #222222;"> Circuit </span><a href="https://slate.com/news-and-politics/2023/04/abortion-pill-fifth-circuit-ruling-mifepristone-fda-doctors.html" style="background-color: white; border-bottom-style: solid; border-bottom-width: 2px; border-color: var(--theme-color,#ff0e50); box-sizing: inherit; cursor: pointer; outline-color: transparent; text-decoration-line: none; text-decoration: none; transition: color 0.12s ease 0s, fill 0.12s ease 0s, border-color 0.12s ease 0s, outline-color 0.12s ease 0s, outline-style 0.12s ease 0s;">pared back</a><span style="background-color: white; color: #222222;"> his order but re-imposed old requirements for the use of the drug, making the abortion medications much more difficult to access. </span></span></p><p><span style="font-family: inherit;"><span style="background-color: white; color: #222222;">The Supreme Court <a href="https://slate.com/news-and-politics/2023/04/abortion-pill-mifepristone-ruling-scotus-stays-legal.html" target="_blank">stayed</a> </span><span style="background-color: white; color: #222222;">Kacsmaryk’s entire decision. Months later, the Fifth Circuit </span><span style="background-color: white; color: #222222;"><a href="https://slate.com/news-and-politics/2023/05/texas-circuit-rage-supreme-court-mifepristone-abortion-pill.html" target="_blank">ignored</a> the Court's strong hint and </span><a href="https://www.ca5.uscourts.gov/opinions/pub/23/23-10362-CV1.pdf" style="background-color: white; border-bottom-style: solid; border-bottom-width: 2px; border-color: var(--theme-color,#ff0e50); box-sizing: inherit; cursor: pointer; outline-color: transparent; text-decoration-line: none; text-decoration: none; transition: color 0.12s ease 0s, fill 0.12s ease 0s, border-color 0.12s ease 0s, outline-color 0.12s ease 0s, outline-style 0.12s ease 0s;">tried </a><a href="https://www.ca5.uscourts.gov/opinions/pub/23/23-10362-CV1.pdf" style="background-color: white; border-bottom-style: solid; border-bottom-width: 2px; border-color: var(--theme-color,#ff0e50); box-sizing: inherit; cursor: pointer; outline-color: transparent; text-decoration-line: none; text-decoration: none; transition: color 0.12s ease 0s, fill 0.12s ease 0s, border-color 0.12s ease 0s, outline-color 0.12s ease 0s, outline-style 0.12s ease 0s;"><span style="box-sizing: inherit;">again</span></a><span style="background-color: white; box-sizing: inherit; color: #222222;"> </span><span style="background-color: white; color: #222222;">to put back the old, requirements. The Supreme Court then granted cert and oral argument is tomorrow. </span></span></p><p><span style="font-family: inherit;"><span style="background-color: white; color: #222222;">Every plaintiff in federal court, without exception, must show that they have have suffered an injury caused by the defendant that the court is able to redress. The Supreme Court has <a href="https://supreme.justia.com/cases/federal/us/504/555/" target="_blank">said</a> that these requirements come from Article III's case or controversy requirement and are non-waivable subject-matter jurisdiction pre-requisites to federal jurisdiction in every case.</span></span></p><p><span style="font-family: inherit;"><span style="background-color: white; color: #222222;">Unfortunately, what constitutes personal injury for standing purposes and whether that injury has been caused by the defendant are entirely malleable concepts that the justices have consistently used and abused to hear cases they shouldn't hear and to not hear cases they should entertain. The doctrine is entirely incoherent. For example, as I <a href="https://www.latimes.com/opinion/op-ed/la-oe-segall-emoluments-case-should-go-forward-20170125-story.html" target="_blank">wrote</a> years ago in the LA Times:</span></span></p><p><span style="background-color: white;"><span style="font-family: inherit;"></span></span></p><blockquote><p><span style="background-color: white;"><span style="font-family: inherit;">Abigail Fisher, a white student denied entrance to the University of Texas, was allowed to challenge the affirmative action policies of the university even after she had graduated from another college and admitted she would never again apply to UT. Massachusetts was allowed to sue the Environmental Protection Agency over its failure to issue certain regulations based on the highly speculative claim that the coastline of that state might in the future be damaged by global warming. Environmental groups were allowed to challenge federal limitations on nuclear-power-company liability even though no accident had occurred and the plant in question hadn’t even been built yet.</span></span></p></blockquote><p>On the other hand, the Court has issued major decisions denying standing that seem totally at odds with the cases described above (and many more). Reporters and lawyers were <a href="https://www.oyez.org/cases/2012/11-1025" target="_blank">not allowed</a> to sue the government when they thought the NSA was illegally listening in on their conversations. Parents of Black school children were<a href="https://www.oyez.org/cases/1983/81-757" target="_blank"> not allowed</a> to challenge the IRS's allegedly illegal granting of tax exemptions to racially discriminatory private schools. And, insane as it sounds, the Court <a href="https://www.oyez.org/cases/1981/80-327" target="_blank">denied</a> standing to plaintiffs challenging the donation by the federal government of a valuable piece of real estate to a religious college while <a href="https://supreme.justia.com/cases/federal/us/392/83/" target="_blank">allowing</a> similarly situated plaintiffs to challenge the federal government's provision of educational materials to religious elementary and secondary schools. There is no possibility of explaining these and many other standing cases in a coherent fashion. </p><p>And yet, most folks, including Lithwick and Stern, believe the Court will dismiss this case for lack of standing. They may be right, but always remember that standing is nothing less and nothing more than what standing does. There is "no there there," so I'm not as confident as others about what the Court will do.</p><p>The doctors claim that, even though they do not perform abortions, someday they are likely to have to treat a patient who suffers complications from abortion drugs, the best medical treatment might be an abortion, and that result will cause the doctors psychological and other harm because of their adamant opposition to abortion. They also claim their time and energy will have to be used to treat these future and hypothetical abortion medication-gone-bad-patients, diverting the doctors' energies from other medical tasks they want to perform.</p><p>The fact that their injury has not happened yet does not doom the case for standing purposes. Sometimes, plaintiffs ready, willing, and able to break a law who have good reason to believe they will be arrested for violating a law they think is unconstitutional can sue for pre-enforcement review. But that line of cases has nothing to do with this case. In these circumstances, the plaintiffs must <a href="https://www.blogger.com/blog/post/edit/36951752/6503792636521909546#" target="_blank">show</a> that their personal harm is "certainly impending," or at least "imminent." </p><p>The doctors' claims are much too speculative to count as personal injury sufficient to justify the Court hearing the case on the merits. They may or may not in the future have to deal with a medical abortion with complications, but who knows? The abortion drugs are <a href="https://slate.com/news-and-politics/2023/12/supreme-court-mifepristone-abortion-pill-case.html" target="_blank">safer</a> than Tylenol and Viagra. Most drug- induced abortions are completely safe. Could a doctor challenge how the FDA treats Tylenol by saying someday he may have to treat someone whose liver disease was caused by taking too much Tylenol? The answer is almost certainly no (with the caveat that standing is what standing does). If these doctors have standing, then any doctor would have standing to challenge almost any FDA rule regarding any medicine because no drug is 100% safe. </p><p>Moreover, the source of the doctors' alleged injury is not medical abortions but their obligation under federal and maybe state law to treat patients in emergency room situations with appropriate medical care. If the doctors had the right to simply not treat women with complications from medically induced abortions (not that any sane person would want that result) then they would have no injury because they could simply decide not to treat patients seeking abortions. The FDA's approval of these drugs is simply not the cause of the highly speculative injuries the doctors argue they may possibly, someday suffer.</p><p>This lawsuit is really about two major issues that the religious right and the leaders of the Federalist Society and the GOP care deeply about. They want to end all abortions in America and dramatically reduce the administrative state so that big corporations can make more money. Because the conservatives on the Supreme Court seem to largely share those goals, and on the merits this case can further them both, we should not take for granted that the Court will dismiss this case, as precedent should dictate. But if the Court should decide to hear the case on the merits, it will be at least partly due to the incoherent abyss that is standing doctrine.</p>Eric Segallhttp://www.blogger.com/profile/08823293006574144651noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-8539488091707497202024-03-22T08:17:00.001-04:002024-03-23T10:44:54.235-04:00Layered Standards of Review in United States v. Texas and Beyond<p><a href="https://verdict.justia.com/2024/03/21/judicial-chaos-is-a-symptom-mostly-asymmetrical-polarization-is-the-disease" target="_blank">My latest <i>Verdict </i>column</a> discusses this week's maneuvers in the litigation over Texas S. B. 4--which, as I explain in the column, </p><p></p><blockquote>makes it a state crime for an undocumented immigrant to enter Texas, imposes severe penalties, authorizes state deportation to Mexico regardless of the nationality of the undocumented immigrant, and requires state court judges to proceed with state criminal and deportation measures even if the undocumented immigrant is in the midst of a federal proceeding (such as adjudication of an asylum claim) that could result in permission to remain in the country.</blockquote><p>The column describes how: (1) the federal district court properly enjoined S. B. 4; (2) the Fifth Circuit then issued an administrative stay of that injunction but also stayed its stay for up to seven days pending an application to vacate the administrative stay in the Supreme Court; (3) the <a href="https://www.supremecourt.gov/opinions/23pdf/23a814_febh.pdf" target="_blank">Supreme Court declined to vacate the stay</a>, which meant that the stay of the stay was dissolved, so the stay went into effect, so the preliminary injunction was stayed, so S. B. 4 was enforceable; but then within a few hours (4) the Fifth Circuit panel to which the appeal had been assigned vacated the stay and scheduled oral argument (held on Wednesday) on whether to grant a stay pending appeal (which in principle requires a different kind of showing from what's necessary for an administrative stay but has the same effect), and is yet to rule, so that; (5) for now, S. B. 4 remains enjoined.</p><p>Confused? Wait. It gets worse.</p><p>Because there was no opinion accompanying the SCOTUS order (declining to vacate the administrative stay), we don't know exactly where all of the Justices will end up if and when the case returns to the Court on the merits. We know that Justice Sotomayor and Jackson are certain to find for the Biden administration and its allied private plaintiffs on the ground that S. B. 4 invades the domain of federal law (and indeed, in some respects, runs contrary to federal law). Justice Kagan characterized her view of the merits as necessarily "tentative" in light of the case's preliminary posture, but she too is a very likely vote to invalidate S. B. 4. The only other Justice to express an opinion was Justice Barrett, joined by Justice Kavanaugh, but she didn't opine on the merits at all. Instead, her position appears to be that SCOTUS should never vacate an appeals court's administrative stay, except perhaps if the appeals court leaves it in place too long.</p><p>Justices Barrett and Kagan appeared to disagree over whether the Court's standard for reviewing a stay pending appeal applied. Justice Kagan thought that the administrative stay was the functional equivalent of a stay pending appeal and thus should be governed by the standard governing the latter. As noted, Justice Barrett (and Justice Kavanaugh) seemed to think that review of an administrative stay is simply unavailable. I find that untenable--even for a short administrative stay--at least where there really would be a substantial irreparable injury to a party contesting the administrative stay who is very likely to prevail on the merits. Nonetheless, the disagreement between Justices Kagan and Barrett is probably not very important because where the appeals court acts with alacrity in moving from an administrative stay to deciding whether to grant a stay pending appeal, there will be no time or need for SCOTUS review, whereas a lengthy administrative stay is the exception to Justice Barrett's suggestion that administrative stays can't be reviewed.</p><p>Thus, most cases in which a party seeks SCOTUS review of an appeals court interim stay of a district court preliminary injunction will involve appeals court stays pending appeal, which is how Justice Kagan saw this case. Everyone acknowledges that such cases are governed by the four factors set out in <i><a href="https://supreme.justia.com/cases/federal/us/556/418/" target="_blank">Nken v. Holder</a> </i>and prior cases:</p><p></p><blockquote>(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.</blockquote><p></p><p>As Chief Justice Roberts noted for the Court in <i>Nken</i>, that standard looks a whole lot like the standard a district court uses in deciding whether to grant a preliminary judgment. But here's the thing. The grant or denial of interim relief--whether a preliminary judgment, an appeals court stay of a preliminary judgment, or a SCOTUS stay of interim relief provided by the appeals court, such as vacating a stay of a preliminary judgment--is considered discretionary. That doesn't mean anything goes, of course. The <i>Nken </i>factors or very similar ones guide discretion.</p><p>However, the discretionary nature of the determination should mean that at each level of review the question is not whether the reviewing court weighs all of the factors somewhat differently but whether the court below abused its discretion in weighing the factors how it did. Here's a quotation from <a href="https://casetext.com/case/dv-diamond-club-of-flint-llc-v-small-bus-admin" target="_blank">a 2020 Sixth Circuit case</a> of language similar to what one can find in dozens of other cases from other appeals courts: "The district court's ultimate determination as to whether the four preliminary injunction factors weigh in favor of granting or denying preliminary injunctive relief is reviewed for abuse of discretion. This standard of review is 'highly deferential' to the district court’s decision." Similar deference is supposed to apply at each level of review.</p><p>Accordingly, the question the Supreme Court should really be answering in ruling on an application to dissolve an appeals court stay of a district court preliminary injunction is this: <i>Did the appeals court abuse its discretion in granting a stay by concluding, given the key factors, that the district court abused its discretion, given the key factors for it?</i></p><p>In reality, the Supreme Court virtually never phrases its inquiry with that kind of multi-layered precision. Why not? Because it's nearly impossible for the human mind to keep track of how each factor weighs in the various levels of deference.</p><p>If you don't yet have a headache, consider one area in which the Court has tried to articulate how various layers of review interact with one another. A habeas petitioner who has procedurally defaulted his claim (i.e., who directly or through a lawyer failed to comply with some state procedural rule), can have his default excused by showing one of a small number of excuses that constitute "cause," as well as prejudice from the default. However, as SCOTUS explained in <i><a href="https://www.law.cornell.edu/supremecourt/text/513/298" target="_blank">Schlup v. Delo</a></i>,<i> </i>even a petitioner who cannot demonstrate cause and prejudice to excuse the default may, to avoid the death penalty, have the default excused by presenting new evidence that shows "that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence."</p><p>Try to parse that: <i>More likely than not</i> means at least a hair over fifty percent likely. <i>No reasonable juror</i> is a difficult standard for the petitioner to satisfy because courts frequently deem conclusions reasonable even when they regard them as wrong. Saying <i>no reasonable </i>juror would conclude <i>X</i> is even more deferential than reasonableness review of a conclusion that <i>X</i>, because one might think that a position is unreasonable but then concede that it's sufficiently in the neighborhood of reasonableness that at least some reasonable juror could hold it. But the inquiry gets even more complicated because in this setting the habeas court is supposed to ask whether any reasonable juror would have convicted, which requires taking into account that to convict, a reasonable juror would need to find <i>guilt beyond a reasonable doubt</i>.</p><p>How does that all cash out? It combines a neutral standard (more likely than not) with one that places a heavy burden on the petitioner (no reasonable juror) with one that imposes only a light burden (negating proof beyond a reasonable doubt). Writing on a clean slate, I'd be tempted to say that the heavy and light burdens roughly cancel each other out, leaving the petitioner with the burden of showing that it's more likely than not that he's innocent--which is indeed how the Court in <i>Schlup</i>, quoting <i><a href="https://www.law.cornell.edu/supremecourt/text/477/478" target="_blank">Murray v. Carrier</a></i>, characterized the burden: it requires a showing that the proceedings under challenge "probably resulted in the conviction of one who is actually innocent." But then in <i><a href="https://www.law.cornell.edu/supct/html/04-8990.ZO.html" target="_blank">House v. Bell</a></i>, the Court characterized that same standard as requiring a "stringent showing," which seems like a substantially higher threshold than <i>more likely than not</i>. So it remains a mystery what the layered interaction of the three standards actually produces.</p><p>The key point here is that the human mind has great difficulty applying legal standards to legal standards to legal standards. It's a bit like the imaginative exercise required for an actor to play a role within a role. Consider 64-year-old Victoria Clark, who portrays a teenager inhabiting a prematurely aging body in <i>Kimberly Akimbo</i>, Tom Hanks as a boy within a man's body in <i>Big</i>, or John Travolta and Nicolas Cage trading faces in <i>Face/Off. </i>Those are all great performances because of the challenge, and yet they're still merely roles within roles, rather than the true analogy here: roles within roles within roles.</p><p>The mental challenge of applying three or more layers of varying legal standards probably explains why, in deciding whether to grant interim relief of interim relief of interim relief (as the Supreme Court was ostensibly deciding in <i>United States v. Texas</i>), the courts typically give up and just make a gestalt judgment.</p><p>What's troubling about the SCOTUS denial of the application to lift the administrative stay last week is not the possibility that Court weighed the matter on an all-things-considered basis. What's troubling is that in that overall calculus, a majority of the Justices ended up siding with Texas (even if only preliminarily) in its effort to re-fight the Civil War.</p><p></p>Michael C. Dorfhttp://www.blogger.com/profile/02021009233932690926noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-33006778708271928862023-08-17T12:49:00.018-04:002024-03-21T18:19:48.082-04:00The Banality of Banality: Media Coverage of Trump's Crimes<p>[<i>Note to readers</i>: For the first time in a few months, I have written and published a new <i>Verdict</i> column: "<a href="https://verdict.justia.com/2023/08/17/fighting-the-good-fight-versus-knowing-when-to-move-on-part-one-of-a-series">Fighting the Good Fight versus Knowing When to Move On (Part One of a Series)</a>." That column begins to deliver on the promise in <a href="https://www.dorfonlaw.org/2023/08/in-which-i-become-florida-man-emeritus.html" target="_blank">my "retirement" announcement</a> to answer why anyone in their right mind would resign a tenured position at a highly-ranked research university -- or at any college or university, really.</p><p>[I have no idea how many entries I will ultimately write in that series, but the overall idea is to use my direct experiences at the University of Florida, along with my candid interest in possibly leaving the US permanently, to explore what Trumpist Republicans like Florida's governor and others are doing to education, politics, the economy, and ultimately the world. The short version of today's column is: <i>Why would I leave a tenured position? I didn't. The tenured position left me.</i></p><p>[Meanwhile, today's column here on <i>Dorf on Law</i> addresses the dominant news story of this week.]</p><p><br /></p><p>When I discuss media coverage of almost every issue -- Social Security, elections, foreign policy, the federal budget, and on and on -- I find myself using words like <i>tedious</i>, <i>dreary</i>, <i>desultory</i>, and <i>tiresome</i>. I have recently (and very reluctantly) <a href="https://www.dorfonlaw.org/2023/08/delay-delay-delay-it-would-be-good-for.html" target="_blank">accepted</a> horse-race coverage of elections as a necessary evil in the will-Trump-get-away-with-it era, but for reasons that do not deny or diminish the tediousness, dreariness, and so on of the standard approach to treating all political stories as having no consequences for people's lives. Most of the time, headlines that begin with "Democrats Worry that ..." or "Republicans Dismiss the Importance of ..." are as disposable as a high school orchestra's performance (and even more painful to sit through).</p><p>One adjective that would also fit into my list of synonyms is <i>banal</i>, as in "commonplace" <a href="https://www.dictionary.com/browse/banal" target="_blank">or</a> "devoid of freshness or originality; hackneyed; trite." But the nominal form of that word is <i>banality</i>, which almost automatically brings to mind the now-famous turn of phrase "the banality of evil," used broadly to describe the ways in which the Nazi regime's crimes against humanity somehow became so commonplace at the time as to be unremarkable to the people engaged in committing them. The specific context in which Hannah Arendt <a href="https://www.goodreads.com/quotes/9081364-for-when-i-speak-of-the-banality-of-evil-i" target="_blank">coined</a> that phrase was to describe Adolph Eichmann, after she had observed <a href="https://en.wikipedia.org/wiki/Eichmann_trial" target="_blank">his trial</a> in Jerusalem in 1961, but the phrase now carries with it the danger of confirming <a href="https://en.wikipedia.org/wiki/Godwin%27s_law" target="_blank">Godwin's Law</a>. (Side note: When I was doing a preemption check for the title of this piece, I came across Banksy's 2013 "<a href="https://banksyexplained.com/the-banality-of-the-banality-of-evil-2013/" target="_blank">The Banality of the Banality of Evil</a>," which is fascinating but not relevant here.)</p><p>With today's title, I do not at all mean to call media types any kind of monsters, because they are not. They are part of a business model and social system in which being banal is rewarded and expected. Many of them understand the enterprise at least well enough to know that they must try to turn something inherently boring into something superficially interesting, while those who are oblivious know that they are supposed to try to be interesting (and believe that that is possible). There is a reason, after all, that the most overused phrase on cable news is "Breaking News." It all has to be breathless and engaging.</p><p>Except that they often cannot deliver on any of that, leaving people on camera and in print feeling compelled to come up with hot-takes and completely uninformed criticism of something in the world about which they should simply keep their mouths shut. Cable sports shows have turned the dial on the manufactured controversy amplifier up to 11, and cable TV has also leaned heavily on that model over the years. Remember "Hannity and Colmes"? Indeed, even before cable news became a thing, absurdities like "The McLaughlin Group" had exposed the emptiness of the insta-argument enterprise.</p><p>And even pundits who are not put on the spot during a roundtable discussion on TV apparently feel the need to engage in Monday-morning quarterbacking, carping, caviling, nitpicking, and so on. Much of it is in the context of making predictions to which they will never be held to account, but they make their claims with great certitude. They also often angrily denounce the actions of people who have had to make difficult decisions.</p><p>Current discussions about Donald Trump's legal troubles take this banal banality to a new level. Again, the exigencies of the media universe require it. We thus see people saying that Fulton County DA Fani Willis made strategic errors of one sort or another. Notably, these non-ideological quibbles often parallel the opportunistic distractions offered by Republicans.</p><p>For example, even after Republicans complained that Manhattan DA Alvin Bragg's indictment of Trump on charges of criminal fraud earlier this year were "ticky-tack fouls," we knew that anything as broad and encompassing as Willis's case against Trump and his 18 co-defendants would be blasted by Republicans for being too big. Sure enough, one House Republican quickly ran in front of cameras to <a href="https://www.theguardian.com/us-news/2023/aug/16/donald-trump-georgia-rico-nuclear-bomb-ken-buck" target="_blank">say</a> that the Georgia case was "a nuclear bomb where a bullet would have been appropriate." Mama Bear and Papa Bear can relate.</p><p>Again, Republicans' reason for doing what they do is to protect their cult leader. Pundits' and reporters' reason for doing so is simply to say <i>something</i>, no matter how ill-informed or even pointless, and hope that it trends. The tiresome punditry of “Bragg shouldn’t have gone first” seemed pressingly important to some people at the time. I wonder whether any of those complainers will write something now saying that -- even though it remains true that the different prosecutors should not coordinate with each other -- the rollout of these cases has worked out at least well enough that no one is saying that Bragg's case should have waited until now. Actually, I do not wonder about that at all.</p><p>And now we learn that maybe Willis should not have gone at all, blah blah blah. One of the relatively frequent targets of my ire in discussing media dreariness is the Deputy Editorial Page Editor for <i>The Washington Post</i>, <a href="https://en.wikipedia.org/wiki/Ruth_Marcus_(journalist)" target="_blank">who</a> is notable only for being completely unworthy of note. She writes mostly disposable -- albeit perfectly fine, both in style and usually (but <a href="https://www.dorfonlaw.org/2021/12/democracy-can-die-in-sunlight-too.html" target="_blank">definitely not always</a>) in substance -- columns for her newspaper. She is no George Fwill or Ross Douthat, of course. She is identifiably liberal-ish. She is just <i>so</i> boring all the time and puzzlingly wrong some of the time.</p><p>Earlier this week, this highly placed pundit decided to publish, "<span class="PJLV" data-qa="headline-opinion-text"><a href="https://www.washingtonpost.com/opinions/2023/08/14/georgia-indictment-trump-willis/" target="_blank">Is Georgia’s case against Trump one case too many?</a>" Why? Unclear. After conceding that any overlap between federal and state prosecutions is definitely not double jeopardy, she suggests that maybe, possibly it is a problem: "</span><span class="PJLV" data-qa="headline-opinion-text"></span>Willis doesn’t have to prove it, but it’s fair to ask: What’s the 'substantial Georgia interest' implicated here that has been left 'demonstrably unvindicated'?" But given that so many people had been saying that the federal case was narrowed down to the narrowest of possible grounds with only one defendant, that question answers itself.</p><p>After allowing that "I don’t fault Willis at all for investigating" (how kind!) and spooning out more pudding about overlapping prosecutions, we get this:</p><blockquote><p>But there is a concern about piling on here. Why stop at Georgia? The <a href="https://www.justice.gov/storage/US_v_Trump_23_cr_257.pdf" target="_blank">federal indictment</a>
sets out conduct in six other states in which Trump and his
co-conspirators allegedly sought to overturn the election results. Will
he be prosecuted in those states, too? At some point, it becomes unfair —
yes, even to Trump — to go state by state. That’s why the federal
approach is preferable. <br /></p></blockquote><p>Why in the world is that unfair? She does not even think to explain, perhaps because she believes that she can just say things, but perhaps also because this is all just filler. People were reacting to the latest indictment, and pundits were coming up with their snap reactions. She chose, "Gee, even a liberal like me thinks Trump deserves a break." If Trump and his people committed crimes in multiple states, then there is every reason for each of the relevant states to make its own decision about prosecution, whether or not a pundit thinks that "it becomes unfair."</p><p>Oh, and by the way, the Georgia case (as well as any other state cases that she is worried will be mere "piling on") is not subject to future presidential pardons. What a concept.<br /></p><p></p><p>I am bending over backward to be kind here, because it is difficult to square my relatively benign explanations with this parenthetical in that column's final paragraph: "Small point, but Monday’s spectacle of an after-hours indictment and late-night news conference<b> </b>didn’t exactly inspire confidence in the Willis office’s professionalism." Viewed charitably, that is merely another version of damned-if-you-do-damned-if-you-don't heckling. After all, had Willis done something that was less of a "spectacle" -- not a word that I would use to describe that event -- the complaint would have been that she undersold the story.</p>But the insinuation (if not the outright accusation) is that Willis, who will "have to run for election," was being unprofessional by holding a standard-issue press announcement. Not doing so, however, would have been truly weird, and it surely would have resulted in reporters hounding Willis while walking to her office, to complaints about lack or transparency, and so on.<p>Maybe, then, this particular example of otherwise forgettable blather is a bit worse than the usual run of such things. Nonetheless, my big takeaway from much of the media/pundit coverage of the Trump criminal cavalcade is that the banality just becomes more and more banal -- perhaps especially when someone tries to break out of the banality.<br /></p>Neil H. Buchananhttp://www.blogger.com/profile/17577335934943074615noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-73633102965357776132024-03-21T15:31:00.002-04:002024-03-21T17:02:58.707-04:00Trump's Criminal Proceedings are Useful Kabuki Theater for Democrats<p>My latest <i>V</i>erdict column, <i><a href="https://verdict.justia.com/2024/03/19/delaying-trumps-trials-is-what-savvy-democrats-should-have-wanted-all-along">Delaying Trump’s Trials Is What Savvy Democrats Should Have Wanted All Along</a></i>, extends my argument that Donald Trump's obvious desire to delay his criminal trials -- with notable success thus far -- is counterintuitively good for the country. In <i>Dorf on Law</i> columns published last summer (on <a href="https://www.dorfonlaw.org/2023/06/would-delay-in-trump-criminal-cases.html">June 28</a> and <a href="https://www.dorfonlaw.org/2023/08/delay-delay-delay-it-would-be-good-for.html">August 4</a>) and on <a href="https://www.dorfonlaw.org/2024/02/delays-do-not-matter-in-trump-federal.html">February 29</a> this year, I argued that any type of pre-election "vindication" of Trump, most likely a hung jury, would have a very bad impact on the election. I also argued that, other than the idolators who deny Trump's manifest guilt, no one would feel that justice had been served if Trump were somehow convicted and then jailed, only to become President again and walk free after only a few weeks or months behind bars.</p><p>The best (perhaps only) potential reason to reject my argument is that a conviction before November 5 could change the outcome of the election, turning either a Trump win into a Biden win or a small Biden win into more decisive Biden win. Given that a win would be a win, why would anyone care about the latter? Does size matter? The argument there is that it would be more difficult for people to abet another Trump coup attempt if the margins of victory were all larger than in 2020, which is an adorably quaint argument that completely ignores the existence of Trump's alternative reality. I argued in 2020 that Trump would claim that losing by a landslide was in fact proof of election theft, and he has done even more to prime his people to believe such a lie this year.</p><p>Either way, I am on the record arguing (repeatedly) that in fact Trump and the Republicans will succeed in negating a loss at the ballot box, either through legalistic or violent means -- likely both. If we were to set that grim prediction aside, however, it would indeed matter whether a Trump conviction before Election Day could change the outcome, saving the country from what would almost immediately become a dictatorship.</p><p>I argued in my <i>Verdict</i> column, however, that there is no reason to believe the opinion polling showing that some nontrivial fraction of respondents would change their votes from Trump to Biden if Trump were convicted before the election. The delays, therefore, are not what might doom the country and the world to a resurgence of fascism. In fact, the delays might save us.<br /></p><p>By coincidence, yesterday also saw the publication in <i>The New York Times </i> of an <a href="https://www.nytimes.com/2024/03/20/opinion/donald-trump-polling-trials.html?searchResultPosition=1" target="_blank">interview</a> with David Byler, who is identified as a "polling expert." (What did that poor guy do in a previous life to deserve such a miserable fate?) Asked directly whether the voters in question would in fact do what they claimed that they would do, Byler endorsed one of the key arguments that I offered in my <i>Verdict</i> piece. (I am not saying that he did so after reading my piece, which is not only unlikely as a general matter but would also have been impossible, given that he was interviewed before my column was published.) Here is the first part of his answer:</p><blockquote><p>The first question is: Are people good at predicting their own behavior?
The second is: Is this a real liability for Trump? I would say no,
people are not great at predicting their own behavior. There’s probably
some social desirability bias here. People would say: Oh, I’m a
respectful person. I’m a reasonable person. Of course I would never vote
for someone who’s a convicted felon. And then the actual events unfold
and they hear messaging from both sides, including people that they’re
sympathetic to. Some of these people who are projecting that they would
not vote for Trump end up coming back around to him.</p></blockquote><p>Or as I put it: "Polls have become increasingly unreliable, and responses to hypothetical
future criminal verdicts might be nothing more than virtue signaling." Byler did, however, go on to make a halfhearted argument that a conviction might matter:</p><blockquote><p>You can look across different polls and see that on questions around
attributes like honesty or integrity or things in that vein[,] Biden is
often a winner. So if a court case were to go badly for Trump and
suddenly corruption or morality or some issue where the candidate’s
personal morality is injected into the race, I think that is bad for
Trump. I think that is good for Biden.</p></blockquote><p>Perhaps, perhaps not. What he did not address was what it means for "a court case ... to go badly for Trump." As I have pointed out, there is now simply no way that a Trump conviction could become final in time for the election. Appeals (and more appeals, and yet more appeals) are inevitable. So a court case going badly for Trump -- so badly that it would flip some voters -- seems highly unlikely, because such hypothetical voters could still console themselves by thinking, "Well, I heard that the conviction might be overturned, so we still don't know."</p><p>But would the conviction itself not be meaningful? Byler said that if "suddenly corruption or morality or some issue where the candidate’s
personal morality is injected into the race, I think that is bad for
Trump." But corruption, morality, and personal morality are going to be front and center in the campaign in general, and it is not a conviction but a trial that would inject that into the race. Indeed, even if every trial is ultimately delayed past November, the legal proceedings that will be necessary to make all of that happen -- arising from four different venues -- will keep Trump's indictments in the news pretty much nonstop. And that, even according to Byler, is bad for Trump and good for Biden.<br /></p><p>All of which leads back to the point that I have made all along, which is that Democrats should not worry about the delays. Indeed, they should welcome them. I made that point again in yesterday's column, adding that because this was obvious from the jump, it should not have been necessary for savvy Democrats to see Trump's successful delaying tactics as a "lemonade from lemons" situation (although I suppose it does not truly matter when Democrats figured that out). There are no lemons here. Delays in Trump's cases are good for Biden.</p><p>Toward the end of yesterday's column, I noted that "a dishonest prosecution in fact would be just as politically valuable as
an honest one, but fortunately there is no evidence that any of these
prosecutions lacked the requisite facts and law to move forward." That is not only fortunate as a matter of morality -- that is, Biden did not in fact engage in banana-republic behavior, which Trump has already promised that he will do if he gets the chance -- but it means that there is no conspiracy that could unravel before the election. At this point, Trump's people have had some success throwing mud at Fulton County DA Fani Willis (with a huge and unprincipled assist from the judge, as Professor Dorf <a href="https://www.dorfonlaw.org/2024/03/creating-appearance-of-impropriety-by.html" target="_blank">pointed out</a> earlier this week), but there is nothing to Trump's constant, evidence-free assertions that the prosecutions are a political operation. If anything, the Biden Administration tried not to "go there," which led AG Merrick Garland to drag his feet for years.<br /></p><p>All people who oppose Trump (and who believe that the election results will matter) should thus be happy about the delays. Even though I am arguing that Democrats should not fret -- indeed, that they/we should delight in them -- that is not to say that anyone should say so out loud (other than me, because no one listens to me). This is now political theater <a href="https://www.dictionary.com/e/pop-culture/kabuki-theater/" target="_blank">of the Kabuki sort</a>, that is, "<span class="ILfuVd" lang="en"><span class="hgKElc"><span><span>an event characterized more by showmanship than by content."</span></span></span></span></p><p><span class="ILfuVd" lang="en"><span class="hgKElc"><span><span>This is partly a matter of playing the role of Br'er Rabbit to Trump's Br-er fox (setting aside the <a href="https://www.npr.org/sections/thesalt/2017/05/11/527459106/tar-baby-a-folktale-about-food-rights-rooted-in-the-inequalities-of-slavery" target="_blank">racial aspect</a> of that parable). Democrats need to continue to be outraged, or to appear to be so, for this to work at all. If Trump were to see Democrats openly embracing my analysis, after all, he would do what he always does: turn on a dime for perceived advantage. As I noted yesterday, it is also good that Democrats are hammering the Supreme Court for taking up the presidential immunity issue. More generally, the corruption that we see among Republican-appointed jurists is simply staggering, and everyone who does not support Trump should be appalled by the naked partisanship that we are seeing.</span></span></span></span></p><p><span class="ILfuVd" lang="en"><span class="hgKElc"><span><span>After all, there is no jujitsu involved in the Republicans' embrace of Trump's strategy of delay. If, say, any of the hyper-partisan conservative Supreme Court justices understood what I am saying that Democrats should (silently) understand, then he or she would stage their own little morality play, declaiming with great fanfare that they have no choice but to call balls and strikes, even if it means disappointing one's political allies. The judge in the Florida case, meanwhile, is an embarrassment to my alma mater and clearly incapable of nuanced thought.</span></span></span></span></p><p><span class="ILfuVd" lang="en"><span class="hgKElc"><span><span>For all anyone knows, Democrats are in fact all in on the strategy that I am describing here, playing their roles masterfully. If so, they are truly great actors, because many of them seem to be in danger of suffering from aneurysms on a daily basis.</span></span></span></span></p><p><span class="ILfuVd" lang="en"><span class="hgKElc"><span><span>Either way, </span></span></span></span><span class="ILfuVd" lang="en"><span class="hgKElc"><span><span>as I wrote in my <a href="https://www.dorfonlaw.org/2023/06/would-delay-in-trump-criminal-cases.html" target="_blank">first column</a> on this topic: "</span></span></span></span>This is all very cynical and tragic, because my message here is
ultimately that Trump and his cultists have already irreversibly turned
this into a matter of trial by election." Because that is still true, e<span class="ILfuVd" lang="en"><span class="hgKElc"><span><span>ven if I were capable of believing that the 2024 election will be determined by the voters, I would not be worried when Trump's trials continue to be delayed. I might even crack a smile.<br /></span></span></span></span></p>Neil H. Buchananhttp://www.blogger.com/profile/17577335934943074615noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-58364257158823511652024-03-20T07:38:00.000-04:002024-03-20T07:38:03.049-04:00Why Worry Only About Inflation but Not Deflation?<p>I continue to ping-pong between writing <a href="https://www.dorfonlaw.org/2024/03/is-politeness-reliable-defense-against.html" target="_blank">hair-on-fire columns</a> about the end of (political) days and penning <a href="https://www.dorfonlaw.org/2024/02/the-downfall-and-consequences-of-cheap.html" target="_blank">analyses</a> of old-fashioned policy questions. The latter continue to bubble up not only because I genuinely care about them but also because I need to preserve my mental health. Last Thursday's <a href="https://www.dorfonlaw.org/2024/03/yes-of-course-democrats-should-be.html" target="_blank">column</a> was a bit of both, as I discussed inflation as a matter of economics while also arguing the political point that Democrats should not shy away from telling people the good news that inflation is no longer a problem.</p><p>At one point in that column, I wrote this:</p><blockquote><p>[A]nnual inflation through January was 2.5 percent ... [a]nd because the Fed's target rate of inflation is 2.0 percent (which is an <a href="https://www.nytimes.com/2014/12/21/upshot/of-kiwis-and-currencies-how-a-2-inflation-target-became-global-economic-gospel.html" target="_blank">arbitrary target</a> that is in fact <a href="https://www.nytimes.com/2023/03/24/business/inflation-federal-reserve-interest-rates.html" target="_blank">too low</a>,
but I digress), inflation is now essentially already back to where the
Fed wants it to be. Seriously, a 0.5% difference is nothing in this
context, and people who would make a big deal about it are either
dishonest or irrationally ultra-averse to even the slightest risk of
accelerating inflation. I cannot help but point out that such people do
not publicly warn that being below 2.0 percent could get out of hand
and tip us below 0.0 percent -- that is, into deflation, which can
spiral out of control all too easily. Why the asymmetry?</p></blockquote><p>My answer to that question was twofold. As a default matter, pundits (who generally lack even minimal expertise on policy issues) are forever trying to look serious, and being an inflation hawk seems serious (just as being a deficit hawk makes uninformed stooges <a href="https://www.dorfonlaw.org/2023/09/breaking-news-on-federal-debt-33-is.html" target="_blank">think they sound serious</a>) and is thus a safe haven for mediocrities. More to the point of that column, I then noted the more recent conventional wisdom that Democrats must never, ever "tell people how to feel," or something like that. That is what the silly "vibeflation" argument is all about, with Democrats and pundits trying to convince themselves that they should never try to convince voters of anything other than what they already believe.</p><p>I stand by that analysis -- and why not, given that I wrote it less than a week ago? Even so, it is worth taking another crack at the question of asymmetric fears of inflation and deflation, because this is a very big problem. In particular, it highlights the point that I referenced parenthetically in the block quote, which is that the Fed's target rate itself is too low.</p><p>By pure coincidence, I happened across a video from <i>The Wall Street Journal</i> (not my usual source of enlightenment, to say the least) over the weekend titled: "<a href="https://www.youtube.com/watch?v=azW8vygS_mU&pp=ygUNd3NqIGRlZmxhdGlvbg%3D%3D">Why China’s Deflation Is More Dangerous Than High Inflation</a>." In last week's column, I had noted that deflation's dangers could most easily be seen in the US's Great Depression of the Thirties and its Great Recession fifteen years ago. <i>The Journal</i>'s piece described not only China's current danger of falling into a deflationary depression but also reminded viewers that Japan's Lost Decades starting in 1990 were a classic deflationary episode.</p><p>When inflation is too high, we want it to go back to its target range, which means that we only want <i>dis</i>inflation, that is, a decline from a higher rate of inflation to a lower -- but still positive -- rate of inflation. Recall that deflation is defined as falling prices, which is not what anyone wants. Why is deflation bad? If prices are actually falling, people will understand that they should wait as long as possible to buy anything that they need, because the longer they wait, the lower will be the price. This causes a further collapse in demand, which makes prices fall further and faster <i>and</i> creates or deepens a recession, which can become a depression in short order.</p><p>Notably, however -- and somewhat contrary to what I wrote in the block quote above -- even a non-spiraling deflation can be disastrous. The charts in the WSJ video show that Japan's economy stagnated for years while the inflation rate straddled the line between inflation and deflation. It was often just a bit below zero and was never worse than negative 3 percent annually. Even so, Japan's first bout of deflation in the mid-1980's set off an era in which Japan's economy stagnated for years, including a stock market crash in 1990 so steep and debilitating that stock prices did not return to their pre-crash highs until <i>this year</i>. That is a tough thirty-plus years!</p><p>It is true that Japan's real economy did eventually recover, and a lot of that country's ongoing issues are caused by its aging population combined with a low birth rate and strict immigration controls. Even so, those problems had not yet metastasized at the point that Japan's deflation wrecked the economy. (As an aside, the Japanese government took on huge amounts of debt, more than double the levels that we have ever seen in the US -- yet Japan never experienced hyperinflation, degradation of the yen, nor default. And the fiscal stimulus did in the end lead to the end of the economic pain. Go figure.) The key takeaway is that Japan's deflation was devastating even without spiraling downward, which is why people are now especially worried about China's situation.</p><p>But what of the upward spiral of inflation? We often hear that the Fed must be vigilant against any increase at all in inflation, because otherwise the doors will be blown off as the country experiences ever higher and accelerating inflation. Except that this is not at all a certainty. Those of us who argued that the inflation early in Biden's presidency was a matter of post-Covid adjustment had the better of the argument in real time, mostly because the supposed cause of the inflation -- Biden's 2021 stimulus package -- had not been replicated in other countries even as those countries experienced higher levels of inflation than we ever saw in the US.</p><p>Because of the Fed's aggressively contractionary interest rate increases over the last few years, it is difficult to determine how much of the now-deceased inflation episode was about supply chains versus a hot economy, but at least we know that it did not require years of high unemployment -- that is, a very deliberately policy-engineered recession, which former Harvard President Lawrence Summers loudly insisted would be necessary -- to bring inflation down. Moreover, the last forty years have seen plenty of short periods during which inflation went up and then down again, even though inflation-phobes warned of the inevitable upward spiral every time.</p><p>Where does that leave us? Deflation is potentially disastrous even at low levels that do not spiral out of control. Hyperinflation is potentially disastrous, but it in no way is inevitable when inflation ticks up, nor is it necessarily painful to bring inflation back down. Yet the very serious people continue to freak out about inflation and inflation alone.</p><p>To a certain extent, this a matter of fighting the proverbial last war -- or more accurately, fighting a war that ended almost a half-century ago. People like Summers (and every other economist of our generation) grew up on "stagflation" in the Seventies, and some people refuse to update their priors because of that one-off event. Yes, it was hugely disruptive -- to say the least -- but we can now see that it truly (and thankfully) was a one-off.</p><p>One possibility, then, is that people of good faith (and of a certain age) could be motivated by something like PTSD, forever hearing the echoes of what they saw in the 1970's and early 1980's. The current 2 percent target rate is arbitrary, but these perma-hawks imagine that allowing the Fed to increase the acceptable inflation rate would lead to disaster -- even though trying to hit something as low as 2 percent inflation necessarily flirts with an accidental plunge into deflation.<br /></p><p>The other possibility, however, is that people who scream every time the inflation rate goes up -- or even when a policy is proposed that <i>might</i> cause inflation to rise -- are doing so malevolently. The moneyed classes like to keep the labor market weak, and they are more generally against anything that can be described as "activist" economic policy. Inflation, or the specter of it, is their friend, because even when it is not there, they can claim that it will show up at a moment's notice and RUIN US ALL!!</p><p>Maybe that will happen one of these days, but we do know that the US has a very good track record when it comes to dealing with occasional increases in inflation. At a minimum, it would be refreshing if at least some people who currently try to sound serous about inflation would admit that there is a related danger of deflation, the consequences of which would be serious indeed.</p><p>Those people, however, are busy backing Donald Trump's efforts to end constitutional democracy, so they are kind of busy. And that brings me back to the other side of the ping-pong table.<br /></p>Neil H. Buchananhttp://www.blogger.com/profile/17577335934943074615noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-31891132270497304602024-03-19T07:00:00.011-04:002024-03-19T07:00:00.249-04:00Justice Jackson's Misguided Defenestration ChallengeDuring the oral argument yesterday in <i><a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-411_2c83.pdf" target="_blank">Murthy v. Missouri</a></i>, Justice Jackson repeatedly attempted to turn the focus away from the issues on which the advocates and other Justices mostly focused--whether any plaintiff has standing and whether the government's jawboning of social media companies regarding anti-vax disinformation, election denialism, and other harmful content rendered those companies' actions with respect to users "state action" subject to the First Amendment. Justice Jackson asked questions indicating she thought that the real issue was whether the government's underlying objection to the users' content was sufficiently justified. At one point, she offered the following provocative example:<div><blockquote>Suppose someone started posting about a new teen challenge that involved teens jumping out of windows at increasing elevations. This is the challenge. And kids all over the country start doing this. There's an epidemic, children are seriously injuring or even killing themselves in situations. Is it your view that the government authorities could not declare those circumstances a public emergency and encourage social media platforms to take down the information that is instigating this problem?</blockquote><p>Remarkably, Louisiana Solicitor General Ben Aguiñaga, arguing for the plaintiffs, said no. After some back and forth to clarify, he asserted that even such encouragement to platforms to take down material promoting what I'll call <i>the defenestration challenge </i>would violate the First Amendment. He said that government officials </p><p></p><blockquote>absolutely can call [the social media companies] and say this is a problem, it's going rampant on your platforms, but the moment that the government tries to use its ability as the government and its stature as the government to pressure them to take it down, that is when you're interfering with the third party's speech rights.</blockquote><p>Ideally, Justice Jackson would have taken that (ridiculous) answer and stopped. However, later in the argument, she returned to the defenestration challenge and gave Mr. Aguiñaga an out.</p><p>The core argument of the federal government that Deputy SG Brian Fletcher pressed was that in order for the actions of federal officials with respect to private actors to convert those private actors into state actors for constitutional purposes, the government officials must do more than jawbone or otherwise <i>encourage </i>the private actors to take particular steps; there must be <i>coercion</i>. That position clearly struck a chord with Justices Kagan and Kavanaugh, who, as former executive branch officials with policy/political responsibilities, understand that government officials routinely and necessarily encourage (without coercing) actions by private actors. And there's virtually nothing in the record to indicate that Biden administration officials crossed the line between permissible encouragement and impermissible coercion.</p><p>Nonetheless, and despite the fact that Justice Jackson appeared to view the federal government's position favorably, she attempted to blow it up. Returning late in the argument to the defenestration challenge, she questioned whether it was proper to worry about the line</p><p></p><blockquote>between compulsion and encouragement and what we're looking at is the government can't compel, maybe they can encourage. I'm wondering whether that's not really the line. The line is does the government, pursuant to the First Amendment, have a compelling interest in doing things that result in restricting the speech in this way? That test, I think, takes into account all of these different circumstances, that we don't really care as much about how much the government is compelling or maybe we do but in the context of tailoring and not as sort of a freestanding inquiry that's overlaid on all of this. Does that make sense?</blockquote><p>At that point in the argument, I wanted to scream "NO, IT DOES NOT MAKE SENSE. WHAT ARE YOU DOING???"</p><p>But meanwhile, Mr. Aguiñaga (a former Alito clerk and Ted Cruz protege) seized on Justice Jackson's suggestion. He said:</p><p></p><blockquote>It does [make sense], Your Honor. . . . I thought we've all been discussing the standard on the front end of the analysis which is is there a First Amendment violation? Is there an abridgement of speech? I guess I would conceptually think of strict scrutiny, narrow tailoring, compelling interest as coming at the back end to say yes, maybe in the ordinary case, the government shouldn't have been permitted to undertake the kind of suppression of free speech that it did, but in this unique circumstance it actually had a compelling interest, and it used narrowly tailored means to accomplish that issue. I mean, I think that's the fail-safe if you're concerned with the breadth of our arguments, that's one fail-safe which is no matter how broad the standard the Court adopts there is always going to be strict scrutiny at the end of the line to save the government in times where it desperately needs to do the things you're outlining.</blockquote><p>Justice Jackson said "thank you," and then Mr. Aguiñaga was done, leading me to want to scream some more, because this line of questioning allowed Mr. Aguiñaga to obscure the extremity of his position by making it seem like it would not have the far-reaching and unprecedented consequences that Justices Kagan, Kavanaugh, and others had worried about.</p><p>Justice Jackson's position seems designed to concede the case to the plaintiffs. If she's right that the action is all in strict scrutiny, then she's conceding state action. But if she's conceding state action, that means she's saying that direct government censorship would be permissible. Would it be? Perhaps a direct ban on promoting the Defenestration Challenge could satisfy strict scrutiny, but even that's not clear. It would not exactly be incitement under the <i>Brandenburg </i>test, after all. </p><p>But even assuming that a government ban on private speech promoting the Defenestration Challenge would satisfy strict scrutiny, surely a direct government ban on anti-vax speech or election denialism would not. The SG does not argue otherwise, nor, so far as I'm aware, would any Justice accept such a ban--as they shouldn't.</p><p>All of which leaves me with three competing hypotheses.</p><p>(1) Justice Jackson believes that a direct ban on anti-vax speech and election denialism can satisfy strict scrutiny. However, that would be truly radical, and I have no reason to think that she is in favor of such a drastic curtailment of free speech doctrine.</p><p>(2) Justice Jackson hasn't thought through where her leave-it-to-strict-scrutiny position leads.</p><p>(3) Justice Jackson actually agrees with the plaintiffs in <i>Murthy v. Missouri</i>. That is less crazy than it might sound. Although the plaintiffs' position in the case codes as ideologically conservative on the facts before the Court, there is nothing inherently conservative about their position. It is not at all difficult to imagine that in a future Republican administration, government officials might exert subtle and not-so-subtle pressure on social media and other companies to take actions that curtail the free speech of activists for liberal causes.</p><p>Indeed, in the companion case argued yesterday, <i><a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-842_3204.pdf" target="_blank">NRA v. Vullo</a></i>, David Cole and the ACLU represented the NRA, which complains that New York government officials coerced insurance companies to deny the NRA insurance as a means of suppressing the NRA's gun rights advocacy. It's very easy to imagine a case presenting exactly the same legal issues but involving, say, Texas officials pressuring insurance companies in that state to deny insurance to an LGBTQA+ advocacy organization.</p><p>So perhaps Justice Jackson--on good civil libertarian grounds--is very worried about the potential for government officials to abuse their bully pulpit power and wants such indirect efforts to be subject to strict scrutiny, even if they don't rise to the level of coercion. If so, her Defenestration Challenge was a subtle way to get there (although I would still disagree on the merits, mostly because of the disruptiveness of a no-jawboning rule).</p><p>On the other hand, if the real explanation is (2)--that Justice Jackson intends to rule against the plaintiffs in <i>Murthy v. Missouri </i>but hasn't thought through the implications of her leave-it-to-strict-scrutiny position--I hope the time to reflect will move her to join those of her colleagues who see the line between encouragement and coercion as the best way to get to the right answer.</p><p></p><p></p><p></p></div>Michael C. Dorfhttp://www.blogger.com/profile/02021009233932690926noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-43904746146540970932024-03-18T07:00:00.002-04:002024-03-18T18:20:24.220-04:00Creating an Appearance of Impropriety by Purporting to Dispel One<p>The key point in <a href="https://static01.nyt.com/newsgraphics/documenttools/41940dd55b533f11/20adae2b-full.pdf" target="_blank">Judge McAfee's ruling</a> on the motion to disqualify Fani Willis and Nathan Wade from the Georgia state court case against Donald Trump and his co-defendants is that the defendants were not in any way prejudiced by Willis's romantic relationship with Wade. I'm glad Judge McAfee reached that conclusion, but he nonetheless deserves fairly withering criticism on at least two grounds.</p><p>First, in light of his reasoning, Judge McAfee should not have held the distracting and time-wasting evidentiary hearing at all. Second, his conclusion that the Willis/Wade relationship created the appearance of impropriety was a <i>non sequitur </i>in light of his principal conclusion. Worse, that very conclusion itself creates a substantially greater appearance of impropriety than anything that Willis or Wade did.</p><p>Let's begin with a brief synopsis. Everyone paying the slightest bit of attention understands that the real motive for the defendants' motion to disqualify Willis and Wade was to derail the prosecution. The ostensible legal argument, however, alleged a conflict of interest. Willis hired Wade as a Special Assistant District Attorney, the allegations go, in order that Wade could get paid by the state, and he in turn would use the money he received to pay for vacation travel for himself and Willis; that alleged fact in turn gave Willis a financial stake in Wade continuing in his role, which in turn gave her a financial stake in the prosecution continuing. But a prosecutor ought to decide whether to keep a case going against defendants based on the law and facts, not a financial stake in the case. Thus, the argument concluded, so long as Wade was on the payroll and her boyfriend, Willis had an improper financial incentive.</p><p>Those allegations <i>could in theory </i>establish an improper financial incentive. In <a href="https://supreme.justia.com/cases/federal/us/481/787/" target="_blank"><i>Young v. United States ex rel. Vuitton et fils</i> </a>(1987), SCOTUS held that it was improper to appoint an interested opposing party in ongoing civil litigation as the prosecutor of a criminal contempt arising out of that matter. To be sure, there the conflict was not simply financial, but one can certainly imagine that even a purely financial incentive would distort prosecutorial judgment. And Georgia is entitled to have stricter conflict-avoidance rules than the federal courts or various other states.</p><p>But that's all in theory. What about in fact?</p><p>As Judge McAfee acknowledges, "[w]henever a private attorney -- like Wade -- is paid by the billable hour, a motive exists to extend or prolong the assignment." Judge McAfee quickly dismisses that "tension" as one "that the legal profession has long accepted." If that's so, however, then it's hard to see how any of the defendants' allegations could have risen to the level of a disqualifying interest.</p><p>The defendants claim that Wade shared the money he received for his services with Willis by paying her portion of vacation expenses along with his. Willis pushed back hard, claiming she reimbursed Willis in cash. Even if that's not true, however, Willis would have received at most the same financial benefit as Wade could (if we assume that Wade would have paid for his portion of the vacation expenses out of separate funds and used all of what he received as a Special ADA to subsidize Willis). But if the size of the financial incentive Wade received was tolerable--indeed, "long accepted"--it's hard to see why shifting that incentive from one prosecutor (Wade) to another (Willis) creates a problematic conflict of interest.</p><p>Moreover, any financial incentive Wade and/or Willis had to prolong Wade's work on the case actually works <i>to the benefit of the defendants </i>because prolonging--i.e., dragging out and delaying--the case is exactly what they want. The closer the trial moves to the November election, the easier it becomes for Trump and all of his co-defendants to find at least one juror to resist voting to convict on the ground that the case is politically motivated.</p><p>In any event, as Judge McAfee acknowledges in his opinion, no improper incentive Willis had to drag the case out to funnel money to Wade influenced Willis. It's worth quoting Judge McAfee nearly in full (minus citations) on this point:</p><p></p><blockquote>Defendants argue that the financial arrangement created an incentive to prolong the case, but in fact, there is no indication the District Attorney is interested in delaying anything. Indeed, the record is quite to the contrary. Before the relationship came to light, the State requested that trial begin less than six months after indictment. Soon thereafter, the State opposed severance of the objecting defendants who did not demand their statutory right to a speedy trial. . . . The State amended its proposed timeline in November 2023 to request that the trial commence less than one year after the return of the indictment. And even before indictment, the District Attorney approved a Grand Jury presentment that included fewer defendants than the Special Purpose Grand Jury recommended. In sum, the District Attorney has not in any way acted in conformance with the theory that she arranged a financial scheme to enrich herself (or endear herself to Wade) by extending the duration of this prosecution or engaging in excessive litigation.</blockquote><p></p><p>Crucially, every indication that Willis was unaffected by any financial incentive running through Wade identified in that extremely persuasive paragraph was known <i>before and without </i>holding an evidentiary hearing. Thus, Judge McAfee's reasoning demonstrates that there was no reason to hold the evidentiary hearing. He could and should have simply denied the defendant's motions on the ground that there was no prejudice to them from anything they alleged (and indeed that their allegations, if true, would <i>benefit </i>them) while referring their allegations to the Georgia bar to investigate any impropriety.</p><p>Given the absence of any prejudicial conflict, why did Judge McAfee require either Willis or Wade to leave the case in order for it to proceed? He found an appearance of impropriety largely based on the dubious testimony of various witnesses about when Wade and Willis started dating. Here is how he put the point: "neither side was able to conclusively establish by a preponderance of the evidence when the relationship evolved into a romantic one. However, an odor of mendacity remains."</p><p>Okay, so Wade, Willis, and/or other witnesses may have lied under oath. If so, that's bad and another item for possible referral to the Georgia bar. But <i>it has nothing to do with anything that could possibly prejudice the defendants</i>.</p><p>If the defendants had alleged that Wade, Willis, and the rest of the legal team working on this prosecution had weekly drunken parties at which they engaged in group sex, that too would create the appearance (and, insofar as there was any pressure on underlings to participate, the reality) of impropriety, but it would not be a reason to disqualify anyone from the case. Having concluded that Wade and Willis were not influenced by any improper incentive and in light of the fact that the only allegedly improper incentive would <i>benefit</i> the defendants, Judge McAfee could draw no connection between any appearance of impropriety and the case.</p><p>Judge McAfee has given the defendants a great gift. Holding the hearing rather than immediately denying the defendants' motion generated substantial delay that could now be compounded by additional delay via appeal.</p><p>In addition, the "appearance of impropriety" finding poisons the jury pool. In the course of considering the appearance question, Judge McAfee quotes <a href="https://casetext.com/case/cheney-v-us-dist-court-for-the-dc" target="_blank">Justice Scalia's explanation</a> of why he did not recuse himself from a case involving Vice President Cheney in light of a hunting trip he took with Cheney: "a reasonable person is not an uninformed member of the public with only a passing knowledge of the facts at hand."</p><p>Maybe so, but <i>voir dire </i>to select a jury (if the case ever goes to trial) will aim to eliminate from the jury those people who bring extensive knowledge of the case. It will likely be impossible to seat a jury consisting only of people with no exposure to news coverage of the maneuvering thus far. As a result, it is quite likely that typical jurors will have paid only a little attention to the pre-trial maneuvering--just enough to know that there was something that appeared a bit fishy about the prosecution. Judge McAfee's conclusion that there was an appearance of impropriety will thus create one.</p>Michael C. Dorfhttp://www.blogger.com/profile/02021009233932690926noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-85308667925175373602023-03-17T16:46:00.007-04:002024-03-17T12:29:17.709-04:00Childish Manliness and the Anti-Woke Macho Panic<p><i>by Neil H. Buchanan</i> <br /></p><p>One of the formative moments of my adolescence was when I first heard the (probably apocryphal) story about a commoner who was invited to a special dinner with the queen. As the story goes, when a finger bowl was placed in front of the nervous guest, he thought it was for drinking and quickly gulped downed the water. While the assembled royals sneered and tittered, the queen calmly picked up her finger bowl and drank it as well.</p><p>That story is so well known that there are endless variations in its telling, but that is precisely because it makes such an important point -- a point that is reflected in other life lessons and aphorisms, including (the needlessly gendered) "a man never stands so tall as when he stoops to help a child," or simply "Don't be a jerk!" The idea is that growing up and being good involve learning to be part of something larger and caring about -- or at least noticing and minimally respecting -- the humanity of others.</p><p>The thoughtful queen in the story understood that the kind, truly noble thing to do was to make her guest feel comfortable, rather than saying, "Oh, you rube! <i>Here</i> is what it means to be upper crust." Whoever it was that told me that story in my teen years then shared the lesson to be learned: "There's class, and then there's <i>class</i>!" Given that I was growing up in the Baby Boom-era of what we would now call toxic masculinity -- a two-word phrase that serves as evidence that a well chosen label can be powerfully clarifying -- that was a transformative moment.</p><p>Arguably, the US political divide in 2023 amounts to a sorting of people into two camps: those who would have laughed at the queen's guest, and those who would have applauded the queen's kindness. Kindness is not in fashion on the political right. More than that, maturity has become a liability. These people are now all about finding vulnerable groups and kicking down at them, but what is in some sense more fascinating is their panicky refusal even to consider accepting limits in their lives. In the end, the modern (and I use that term in only one of its meanings) conservative movement's slogan is: "You can't tell <i>me</i> what to do!"<br /></p><span><a name='more'></a></span><p>In my <a href="https://verdict.justia.com/2023/03/16/rhymes-with-joke-a-word-that-already-meant-nothing-now-means-even-less" target="_blank"><i>Verdict</i></a> and <i><a href="http://www.dorfonlaw.org/2023/03/is-this-blogs-name-problematic.html" target="_blank">Dorf on Law</a></i> columns yesterday, I discussed a surprising development in the right's anti-modernity campaign. Whereas it had at first seemed that their embrace of the word "woke" was merely an updating of the hoary "political correctness" and the newer (but already stale) "cancel culture" -- all-purpose insults with zero content, making them politically useful -- the woke thing has lately become so, sooo much more than that. To quote ten random Republicans in the last ten minutes:</p><p>"woke" "woke" "hyperwoke" "woke" "woke-ified" "wokeness" "wokester" "woke" "woke" "super-woke"</p><p>I leave it as an exercise to readers to put names and links to the quotations. It should take about a minute.</p><p>Seriously, however, the news that House Republicans embraced a "budget" document that used the word "woke" <a href="https://twitter.com/JStein_WaPo/status/1627425230233690116?lang=en" target="_blank">77 times in 104 pages</a> tells us that this is a new era in empty conservative anti-virtue signaling. And that even leaves aside their blunt bigotry, such as claims by <a href="https://www.vice.com/en/article/xgwq9a/wsj-wonders-did-silicon-valley-bank-die-because-one-black-person-was-on-its-board" target="_blank">one Neanderthal</a> that a bank's failure might -- just might -- have had something to do with its board having <span class="abc__textblock size--article" data-component="TextBlock">"45
percent women, ... ‘1 Black,’ ‘1 LGBTQ+,’ and ‘2 Veterans’" (adding:
"I’m not saying 12 white men would have avoided this mess, but the
company may have been distracted by diversity demands").</span></p><p><span class="abc__textblock size--article" data-component="TextBlock">Do any of these guys even know how boards work, or how little board members are "distracted" by such things? The "I'm not saying" part is exactly what this guy was saying, in precisely the way that a conservative lawyer's "inartful" <a href="https://www.nbcnews.com/news/us-news/georgetown-law-administrator-resigns-probe-controversial-scotus-tweet-rcna32361" target="_blank">claim</a> that Joe Biden's vow to pick a Black woman to fill an open Supreme Court seat meant that "</span>we’ll get [a] lesser black woman" was only inartful in being exceptionally revealing.</p><p>As I noted above, however, my concern here is not so much with the continued de-evolution of conservatives on the issues that they sweep under the anti-woke banner. Beyond that very real and growing problem is the idea that these men (and some women, as I note below) are angry because they have come to believe that their favorite word -- freedom -- means "I can do whatever I want, and you can't stop me!"</p><p>Almost every example of this is weird, sometimes with very high stakes (like the anti-vaxx insanity) and sometimes not. But even when the stakes seem low, it is all about FREEDOM!! One of these nutjobs is a person with genuine academic credentials who switched careers to make a name for himself by masquerading as an expert in other fields, making him one of the right-wing trolls whose current job is to get himself invited to speak on college campuses and then play the victim when students protest against his uninformed and hateful views. Recently, he took a photo of one of the stickers that one sees in public restrooms that amount to public-service announcements. This one said:</p><blockquote><p>Remember, you don't need an arm's length of paper towel to dry your hands. Use less and place what you use in the paper towel receptacle provided -- It's compostable. Place all other waste in the garbage can.</p></blockquote><p>This sticker was affixed to a paper towel dispenser that also displayed logos for the "City of Vancouver" and "Greenest City 2020 Green Operations." Why did this particular provocateur bother to take the photo and tweet it? Because he had decided to say this: "Up yours, woke moralists. Tyranny is always petty--and petty tyranny will not save the planet." (For what I hope are obvious reasons, I am not linking to that click-bait. <a href="https://www.youtube.com/shorts/ILp_kgJAu4Y" target="_blank">Here</a> is a hilarious one-minute response to it.)</p><p>Every part of that is simply ... odd. Even an actual limit on paper towel use, much less a simple reminder and request, would not be "tyranny." Would it be less tyrannical if we let "the free market" get involved and charge people by the sheet? (Or by the square? <a href="https://www.youtube.com/watch?v=Gysu0kgFwT0" target="_blank">Do you have a square to spare?</a>) Seriously, however, there is no point in analyzing that kind of nonsense on its own terms, because it is better seen as a window into the childish manliness that has infected these people.</p><p>In her utterly unhinged official Republican response to President Biden's 2023 State of the Union address, Arkansas's avowedly anti-woke governor (who happens to be a woman, but that does not stop her from acting like an angry adolescent boy) included this mini-rant within her <a href="https://www.vice.com/en/article/93axap/republicans-state-of-the-union-response" target="_blank">rant-at-large</a>:</p><p></p><blockquote><span class="abc__textblock size--article" data-component="TextBlock">Most
Americans simply want to live their lives in freedom and peace, but we
are under attack in a left-wing culture war we didn’t start and never
wanted to fight. Every day, we are told that we must
partake in their rituals, salute their flags, and worship their false
idols, all while big government colludes with Big Tech to strip away the
most American thing there is—your freedom of speech. That’s not normal.
It’s crazy, and it’s wrong.</span></blockquote><p></p><p><span class="abc__textblock size--article" data-component="TextBlock">This includes the usual projection -- <i>We're</i> the victims of <i>your</i> oppression, you super-powerful gays, vegans, tree-huggers, and composters!! But what is notable again is the palpable sense about what really, truly grinds their gears: "No one gets to tell us what to do! We get to tell other people what to do!!" So even requests from the LGBTQ+ community that amount to saying, "Please respect the fact that we exist and allow us to do what you do all the time, like kiss your spouse in public and wear identity-defining clothes and accessories," is viewed as a claim that conservative White Christians<i> </i>"must partake of their rituals" and "salute their flags." Yes, we can all see that Sarah Huckabee Sanders and her cohorts have had their freedom of speech stripped away -- which we can witness for ourselves, every time they appear on a big tech platform to tell us about it.</span></p><p><span class="abc__textblock size--article" data-component="TextBlock">Where does this immature style of manliness come from? It has long been an obsession on the right to look for politicians who </span><span class="abc__textblock size--article" data-component="TextBlock">pantomime</span><span class="abc__textblock size--article" data-component="TextBlock"> a particular kind of machismo. Ronald Reagan's movie cowboy image thrilled that crowd, even though it was quite literally built on public relations-driven Hollywood contrivances. George W. Bush's PR team constantly staged photo ops with Dubya being shown "clearing brush on the ranch" in Texas. His father, who never recovered from being <a href="https://www.newsweek.com/newsweek-1987-cover-story-george-hw-bush-wimp-factor-1241611" target="_blank">called a wimp</a>, angrily told reporters during the recount craziness in December 2000 that his son was handling the stress "like a <i>man</i>." (Prior to that, he had the US military invade a country. Because not a wimp.)<br /></span></p><p><span class="abc__textblock size--article" data-component="TextBlock">It is difficult to decide who is more pathetic. Is it the obviously not-macho guys strutting around with their chests puffed out and screaming about being tough -- Tucker Carlson's ball-tanning obsession is in a class of its own, but the more standard macho posturing of a Ted Cruz or Josh Hawley is what I am thinking of here? Or is it the guys who at least checked some of the macho boxes in their earlier lives -- Donald Trump's having been a decent athlete and even being arguably (in the backward phrasing) "a real ladies' man," or Governor Meatball's time on the baseball diamond -- who are obsessed with proving that they are not weak? In both cases, the notion of manhood is so badly stunted that it almost makes one’s heart go out to them. Almost.</span></p><p><span class="abc__textblock size--article" data-component="TextBlock">Trump nearly lost in 2016 (but somehow, shockingly, did not) when he was heard to say that "when you're a celebrity," anything -- and in his mind that clearly meant <i>anything</i> -- goes. What we have seen in the years since then is that the people who have been overcompensating for their insecurities for their entire lives are now so fragile that they cannot even abide the idea of other people asking them to show a bit of forbearance, an acknowledgement that we live in a society in which we reasonably ask each other to be aware of others.</span></p><p><span class="abc__textblock size--article" data-component="TextBlock">Instead, manhood in their minds involves packing heat and mocking "wussy soy boys" and "beta males." It is all about projecting the illusion of manly power, apparently because they are so worried that they are losing it. There probably is not an old saying that goes like this, but there should be: "If you have to remind people that you're a tough guy, you're not a tough guy." And going after weaker people, woke or otherwise, does not make you a man.<br /></span></p>Neil H. Buchananhttp://www.blogger.com/profile/17577335934943074615noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-49151980023324882602021-11-03T14:28:00.018-04:002024-03-17T11:45:20.363-04:00Closing the Loop on Anti-Government Dogma: Is Every Tax Unconstitutional?<div style="text-align: left;"><i>by Neil H. Buchanan</i> <br /></div><div style="text-align: left;"> </div><div style="text-align: left;">How far will Republicans go with their anti-tax jihad? Long before any reality TV bigots came along, America's conservative party defined itself by its opposition to taxes. They claim to hate deficits, and they certainly hate any government spending that helps Those People, but even when they have been given the opportunity to trade $1 of increased taxes for $10 of spending cuts, the self-styled Party of Fiscal Responsibility emphatically rejected any increases in tax revenues.</div><div style="text-align: left;"><br /></div><div style="text-align: left;">Last week, in the midst of everything else that is going wrong in the world, Republicans' anti-tax mania was given the opportunity to rear its ugly head when Senate Democrats proposed their so-called Billionaires Tax (BT). Conservatives immediately claimed that the BT was most assuredly -- for some reason to be determined later -- an unconstitutional abomination, so I wrote <a href="https://verdict.justia.com/2021/10/28/the-proposed-tax-on-billionaires-income-is-most-assuredly-constitutional-unless-the-supreme-court-simply-makes-stuff-up" target="_blank">a <i>Verdict</i> column</a> explaining that the BT was not only constitutional but trivially so. I followed up here on <i>Dorf on Law</i> with <a href="http://www.dorfonlaw.org/2021/10/some-of-weakest-parts-of-conservative.html" target="_blank">a column</a> responding to an over-the-top recitation of anti-tax dogma from one of <i>The Washington Post</i>'s resident conservative ideologues, whose rant was inspired by the BT but went far afield in making absurd assertions.</div><div style="text-align: left;"><br /></div><div style="text-align: left;">With a bit more time to think about it, I decided that the most interesting thing about the BT was not the proposal itself but the insanity of the arguments that had been offered from the right claiming that the tax simply has to be unconstitutional. That is the more interesting issue for three reasons: (1) As anyone who has observed the Democrats for even a millisecond might have expected, they quickly abandoned the BT; (2) Even if the BT had been enacted, Republicans in the next Congress would have repealed it long before it could have reached the Supreme Court; but most importantly (3) the arguments that conservatives trotted out against the BT might well be repurposed to attack other taxes.</div><div style="text-align: left;"> </div><div style="text-align: left;">Even in the dystopian post-constitutional future that I have <a href="https://verdict.justia.com/2021/08/30/dead-democracy-walking" target="_blank">predicted</a>, Republicans might find it more useful to use the courts to repeal progressive taxes than to do so through legislation. If so, it would be interesting to think about what legal fig leaves they would use to hack away at the taxes that they hate. I thus wrote a two-part <i>Verdict</i> column (published on <a href="https://verdict.justia.com/2021/11/01/legalistic-lawlessness-and-the-strategic-use-of-repudiated-supreme-court-precedents-part-one-of-two" target="_blank">Monday</a> and <a href="https://verdict.justia.com/2021/11/03/using-legalistic-lawlessness-to-protect-the-wealthy-from-the-indignity-of-paying-taxes-part-two-of-two" target="_blank">this morning</a>), laying the groundwork to explain how conservatives might try to twist the Constitution and a very bad (but not exactly overruled) precedent to go after taxes that are far more familiar than anything like the BT.</div><div style="text-align: left;"><br /></div><div style="text-align: left;">Here, I want to summarize just how wrong the conservatives' anti-tax constitutional analysis is (an analysis joined in part by some liberals, for some reason). To the extent that I have not lost my entire potential readership by now, I will offer this teaser: Taking conservatives' anti-BT arguments seriously leads to the conclusion that all
taxes are unconstitutional. Even after democracy dies, the one-party state will need money. Where will it turn?<br /></div><div style="text-align: left;"> </div><div style="text-align: left;"><span><a name='more'></a></span></div><div style="text-align: left;">The key technical concept that bears repeating here is the difference between realized and unrealized income. By statute -- but very much <i>not</i> as a constitutional imperative -- our income tax system includes as potentially taxable income not just cash received as salaries and wages every year (along with things like royalties, debt forgiveness, and other smaller categories) but also the net proceeds from selling or otherwise disposing of property/assets.</div><div style="text-align: left;"><br /></div><div style="text-align: left;">So, under the current system, if a person buys a share of common stock for $1000 in Year 0 and it goes up in value by $200 every year for seven years, the tax system says that the annual $200 in unrealized income is not taxed, but when the owner sells for $2400 in Year 7, there is $1400 in realized income that must be included in that year's tax computation. Even though the person has -- by the most widely accepted and non-ideological definition of income available -- received $200 in income each year, she need not pay taxes on it at the end of each year. And if she chooses not to sell it in Year 7, she will continue not to pay taxes on the gain. It is entirely within the taxpayer's power to decide when, or even if, she will pay taxes on the gain. And if she dies without realizing the gains, the unrealized income will never be taxed.</div><div style="text-align: left;"><br /></div><div style="text-align: left;">Keeping that explanation on hold for later, we can now run through the constitutional comedy of errors that conservatives have offered against taxing rich people (although, as I suggested above, there is nothing other than Republicans' druthers stopping them from extending this to all taxes). Interested readers will find more complete explanations in today's Part Two of my <i>Verdict</i> column, but it will be useful here to put in list form the chain of legal blunders underpinning conservatives' claim that "taxes on unrealized gains are taxes on wealth, so they're unconstitutional."</div><div style="text-align: left;"><br /></div><div style="text-align: left;">(1) Nothing in the Constitution bans any kind of tax under consideration here (or any kind of tax at all, unless the tax violates some other constitutional provision, such as equal protection). The only constitutional barrier of any kind is that some taxes must be "apportioned," that is, each state's proportion of dollars collected by the tax must equal that state's proportion of the national population. For example, if State A is home to one percent of all U.S. citizens, the tax must collect one percent of all revenues from State A. (The rule actually has to do with congressional districts, but it amounts to a very nearly population-based requirement.)</div><div style="text-align: left;"><br /></div><div style="text-align: left;">So there is no such thing as an unconstitutional tax. There are only taxes that must be apportioned. Apportionment can lead to absurd results, but it can be done; and if Congress chooses not to do so, it is not because the tax is unconstitutional but because apportionment is unworkable or unacceptable as a policy matter.</div><div style="text-align: left;"><br /></div><div style="text-align: left;">(2) The only kinds of taxes that must be apportioned are Direct Taxes. The problem is that no one knows the difference between a direct and an indirect tax. There is no functional difference, the Constitution itself only gives one example (a "capitation tax," or equal-dollars-per-person tax), there is no evidence of what "original public meaning" the term "direct tax" had at the founding, and any distinction that might have once made sense has been lost to history over the life of the Constitution. Pick any interpretive method you prefer, but you still will not have any guidance to determine what counts as a direct tax.</div><div style="text-align: left;"><br /></div><div style="text-align: left;">(3) Conservatives are now claiming that wealth taxes are direct taxes. That is clearly wrong, because we have plenty of taxes that are absolutely, unquestionably taxes on wealth that have never been struck down as unconstitutional-because-direct-but-not-apportioned. The estate tax is the most obvious example.<br /></div><div style="text-align: left;"><br /></div><div style="text-align: left;">This, however, is where things start to become a bit nerve-wracking, because this could give ideas to conservatives, who have always hated the estate tax but have only been able to minimize it without fully repealing it. A few months ago, people like me were asking: "Why are so many people rejecting the Covid vaccine requirements for schools, when we have long imposed many vaccine requirements that these people have never resisted?" Rather than saying, "Silly me, you're right, so now I'll let my kid get the Covid vaccine," many of them are now saying, "Silly me, you're right, so I'm now against ALL vaccines!"</div><div style="text-align: left;"><br /></div><div style="text-align: left;">This is part of the reason that I expect conservatives to become more aggressive about challenging taxes in the courts. With a sympathetic core of six justices on the Supreme Court, they might well succeed in having all wealth taxes deemed to be direct taxes, thus needing to be apportioned. A Republican Congress could then refuse to alter those taxes to meet the apportionment requirement, saying: "So I guess the tax is unconstitutional now."</div><div style="text-align: left;"><br /></div><div style="text-align: left;">(4) Conservatives are now pushing the envelope by saying that taxes on unrealized incomes are taxes on wealth, which is their attempt to skirt the Sixteenth Amendment's elimination of the apportionment requirement for taxes on incomes — a requirement that never existed in the first place, but it took an amendment to undo a ridiculous <i>Lochner</i>-era case called <i>Pollock </i>that had invented such a rule.</div><div style="text-align: left;"> </div><div style="text-align: left;">Again, even if it were true that unrealized income taxes were wealth taxes (which they absolutely are not), that would not make them direct taxes and thus subject to apportionment -- and certainly not unconstitutional per se. There are some particularly silly versions of this argument that I address in today's <i>Verdict</i> column, but here, I will simply point out that their logic requires one to willfully misunderstand the difference between taxing wealth itself and taxing changes in wealth over time (that is, income).</div><div style="text-align: left;"> </div><div style="text-align: left;">On <i>Verdict</i>, I draw a direct analogy between distance-versus-velocity and wealth-versus-income, pointing out that even if it were unconstitutional to limit the distances that people can travel, it would not be unconstitutional to limit how quickly people can cover those distances. More to the immediate point, the most recent debate sees conservatives suggesting that unrealized income does not <i>feel</i> like income, and they say that taxing unrealized income means taxing wealth, which makes it all unconstitutional -- again, skipping steps (1), (2), and (3) entirely.</div><div style="text-align: left;"> </div><div style="text-align: left;">Beyond all of that, as my colleague David Hasen, who also teaches tax law at the Univesity of Florida, pointed out in an email:</div><blockquote><div style="text-align: left;">"There are plenty of exceptions to the realization requirement already,
including for dealers in securities, holders of certain financial
contracts, holders of off-shore investment funds and certain income of
controlled foreign corporations.
They have all survived challenges. There is also case law that
describes realization as a rule of administrative convenience and not a
constitutional requirement."</div></blockquote><div style="text-align: left;">David added: "Because of this history, I think the question is whether a court that was motivated to find it unconstitutional could do so without writing a truly embarrassing decision. I think it could, but it would not be pretty." Quite so. </div><div style="text-align: left;"> </div><div style="text-align: left;">Again, however, today’s Court might be willing to go there. Just as I suggested in (3) above that the Court could revisit its precedents on wealth taxes -- just as it has upended precedents on guns, voting rights, and so on -- it could suddenly decide that, in fact, none of the taxes that David listed are constitutional after all.</div><div style="text-align: left;"><br /></div><div style="text-align: left;">(5) And now we close the loop. The old, repudiated-but-not-overruled Supreme Court case that I mentioned above is 1920's <i>Eisner v. Macomber</i>, about which I have gone on at great length in all of my recent columns on this topic. What more is there to say? The non-embarrassing, limited holding of <i>Macomber</i> is that the taxpayer in that case not only did not have realized income, but she had no income at all. Why? Because the triggering event for levying the tax was a stock swap that had made her no richer -- she had about $820,000 in stock before the swap and $820,000 in stock afterward. No increase in wealth, no income, no tax.</div><div style="text-align: left;"><br /></div><div style="text-align: left;">But consider how that logic could play out in unexpected ways. Under the statutory realization rule, the person in my example above does not pay taxes while she systematically receives a total of $1400 in unrealized income. When she sells the stock, however, she has turned $2400 in stock into $2400 in cash. The triggering event, then, did not make her richer, any more than the stock swap made Ms Macomber richer. The government had not taxed Macomber when the income was actually accruing, and when it tried to tax her later, the Court said that it could not tax her, because the triggering event had not made her richer.<br /></div><div style="text-align: left;"><br /></div><div style="text-align: left;"><div style="text-align: left;">Bottom line: A motivated conservative (as if there is any other kind) would say that we cannot tax the income when it is unrealized (because that is supposedly taxing wealth), but you cannot tax it when it is realized, either (because there is no income created on the date of the transaction)! Again, if a Court wants to start messing with the definitions of direct taxes, wealth, and income, it might also want to start saying that even the surviving understanding of <i>Macomber</i> prohibits taxing realization events.</div><div style="text-align: left;"><br /></div><div style="text-align: left;">How far could that go? It is tempting to imagine that the Court, if it went that far, would essentially be saying that the only incomes that can be taxed are wages and salaries. Even that, however, is not the limit. Consider that a person earns her salary or wage income over time, and periodically the accumulated obligation is deposited by the employer into the employee's bank account. We have not taxed the income while it was being earned, but we typically have no problem saying that the income is clearly taxable when received as salary/wages because it has been realized.</div><div style="text-align: left;"><br /></div><div style="text-align: left;">Is it clear, though? On the day that she receives the deposit into the account, the employee is <i>not</i> richer, because her employer has replaced the legal obligation to pay her, say, $3000 with $3000 in a bank deposit. She is no richer the moment after the deposit than she was the moment before the deposit -- just as Ms Macomber was no richer after the stock swap than she was before the stock swap. Thus, even the quintessential example of taxable income -- being paid by one's boss -- could be subject to the same logic: <br /></div><blockquote><div style="text-align: left;">You cannot tax me now, because you should have taxed me before; but that was not allowed either, because taxing unrealized income is a tax on wealth, which is a direct tax, which must be apportioned.</div></blockquote><div style="text-align: left;">Do I think the Court would go this far? Of course not. My point is that the idea that unrealized income "obviously" cannot be taxed as income relies on a logical framework that ultimately makes everything nontaxable for all eternity. Although that surely would sound good to some of the most anti-tax zealots out there, even this Court is unlikely to become full-on anarchists.</div><div style="text-align: left;"> </div><div style="text-align: left;">More likely, the Court will simply make opportunistic interventions to relieve wealthy people from the unpleasant task of paying taxes, but then refuse to extend the logic to exempt everyone else. Elon Musk will be delighted, because even though <a href="https://twitter.com/elonmusk/status/1452792781726961668" target="_blank">he claims</a> that he should not be taxed lest everyone else soon face his sorry fate, what he and other guardians of the rich truly want is for the government to collect money from the little people. And surely this Court will not exempt everyone else from taxes, even as it hacks away at the vestiges of progressivity in our tax system.<br /></div></div>Neil H. Buchananhttp://www.blogger.com/profile/17577335934943074615noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-1652148441900240162024-03-13T15:57:00.005-04:002024-03-16T23:30:03.466-04:00Is Politeness a Reliable Defense Against Fascism?<p>There is ever more reason to believe that the US will not survive as a constitutional democracy in anything like it's current form after 2024. Donald Trump and his supporters have been saying this more and more openly and emphatically in recent months, making plans to do everything that they accuse others of doing: "weaponizing" the government, interfering in elections, and all the rest. The one-party dictatorship that will take shape starting in 2025 will almost certainly continue to have the form of a constitutional democracy -- elections, courts, and so on -- but none of the substance.</p><p>To be clear, I am not convinced that the current polling regarding the presidential election should be taken at all seriously. Indeed, I suspect that Biden will ultimately win the election -- rather easily, in fact -- even though he will have to fight on the extremely uneven playing field that conservatives (current Republicans and their Dixiecrat forbears) and their judges have set up over the decades, most importantly including the gauntlet of rules designed to make sure that only the "right people" are able to vote.</p><p>Even if I am right, and Biden wins a fair-and-square victory under the current unfair rules, however, I am quite sure that the system will nonetheless be twisted to put Trump back in the White House next January. This will not require another violent insurrection. It simply requires that Trump and the Republicans mount a nonstop series of challenges -- before, during, and after Election Day -- that will create the noise necessary to allow Republicans in state legislatures and governors' mansions to refuse to appoint Biden's electors.</p><p>If this requires that a Republican legislature override a Democratic governor, the Supreme Court's <a href="https://www.dorfonlaw.org/2023/06/trump-is-biggest-loser-in-moore-v-harper.html" target="_blank">apparent rejection</a> last year of the Independent State Legislature theory will not stop the Court from doing what is necessary to limit or reverse its holding when the day of reckoning arrives. Moreover, there is always the peaceful part of January 6, in which the Cruz/Hawley/Eastman strategy will work if Republicans retake the Senate (virtually assured) and hold the House (not as likely, but very much possible).</p><p>OK, so this explains why I am <a href="https://www.dorfonlaw.org/2023/08/in-which-i-become-florida-man-emeritus.html" target="_blank">still happy</a> to have moved out of the US, possibly (but not certainly) on a permanent basis. But having been in Canada for the past eight months, it is now necessary to think about the consequences for the world's most polite country if there is a fascist takeover of the behemoth on the other side of its southern and western borders.</p><p>In a <i>Verdict</i> <a href="https://verdict.justia.com/2022/02/17/second-thoughts-how-the-anti-government-protests-in-canada-affect-americans-who-might-want-to-move-there" target="_blank">column</a> two years ago, I noted the infamous protest in the national capital of Ottawa, in which very Tea Party-ish truck drivers wrought havoc for several weeks in response to federal Covid vaccine requirements. That showed that there is at least some audience in the Great White North for the same kind of twisted notions of personal freedom that have taken over the Republican Party in the States. The question is, how big is that audience?<br /></p><p>About a month before writing that <i>Verdict</i> column in early 2022, I devoted a <i>Dorf on Law</i> <a href="https://www.dorfonlaw.org/2022/01/the-canadian-right-adolescent-snark.html" target="_blank">column</a> to an analysis of the specious "intellectual" arguments that Canada's conservative elites have been pushing in recent years. Their claims are just as bad as, if not worse than, what passes for conservative thought in the US -- that is, mostly blunt assertions that non-conservatives are big poopy-heads who want to take away everyone's freedom. How? By forcing Canadians to have universal health care, as but one example. The nerve!</p><p>And it only gets worse. At some point years ago, I heard that "Alberta is the Texas of Canada," which made some sense in that both of those places are very much driven by oil wealth. Unsurprisingly, that means that both places have unusually extreme levels of wealth and income inequality, and the richest people dominate state/provincial politics. Recently, Alberta's Conservatives have been threatening to refuse to fulfill their constitutional duties in various ways, in part as a protest against the Trudeau government's carbon tax proposals.</p><p>This resistance included a <a href="https://edmontonjournal.com/news/politics/pure-magical-thinking-albertans-filled-premiers-inbox-with-emails-opposing-provincial-pension-plan" target="_blank">threat</a> that the province will withdraw unilaterally from the Canada Pension Plan, which would be like Texas threatening to withdraw from the Social Security system. Canada does not -- for now -- face anything resembling the politically explosive situation on its southern border as we see in the US, so the Albertan right is not motivated to follow Texas's Republican governor in interfering with another clearly national policy area (immigration). Even so, the increasingly aggressive moves by a political party that need not worry about losing its regional power very strongly resemble what is going on in Texas and elsewhere down south.</p><p>Moreover, the arguments that the rebellious westerners are offering strongly resemble the pure grievance politics that Republicans across the US have perfected over the last decade or so. One argument (and I use that word loosely) is that "the rest of Canada hates us" and "calls us bigots and transphobic." And? And that means, according to these aggrieved souls, that the rest of Canada can simply do without Albertans' tax payments. Rock solid logic! I had not known that hurt feelings were a sufficient basis to withdraw from a federation. I also did not know that social conservatives had a right not to be hated for being hateful.<br /></p><p>Except that, in fact, we did already know that. The supposed source of Trumpists' fervor, after all, is the shocking thought that "woke" lefties are looking down on Real Americans. Recall Samuel Alito's screed in his <i>Obergefell</i> dissent about how awful it is for people like him to have to keep their bigotry to themselves, where he complained that he and other people "who cling to old beliefs will be able to whisper their thoughts in the
recesses of their homes, but if they repeat those views in public, they
will risk being labeled as bigots." Alito <a href="https://newrepublic.com/post/179149/supreme-court-samuel-alito-traditional-people-bigots-lgbtq" target="_blank">renewed</a> that grievance just last month, writing gratuitously after agreeing with the Court's decision not to hear a case involving anti-LGBTQ+ bias that the appellate ruling at hand "<span><span>exemplifies the danger that I anticipated in </span><span><i>Obergefell v. Hodges</i></span><span>," because the lower court held that anti-LGBTQ+ bias is not protected by religious freedom.</span></span></p><p><span><span>All of which means that at least some of the tactics and self-reinforcing outrage that brought the American right to its current degraded state now seems to be bubbling up in Canada as well. The key question is whether it will get out of hand up here, too. I have asked a few Canadians about this, and they all insist that these examples are isolated and that the number of people involved is too small to matter. It is all, they tell me, limited to the fringes that must be expected in any polity.</span></span></p><p><span><span>And, to be clear, I would like to believe that they are right. I find it disturbing, however, that this is exactly what Americans used to say. Even after Trump's emergence made the dangers clear and present, very smart and well informed people would push back against my warnings of rising US fascism by saying that it could not happen there. The institutions were too strong. The public would not tolerate it. Certainly, if political violence were to break out, its instigators would be immediately shunned while their political support evaporated. How did that work out?<br /></span></span></p><p><span><span>This is what I am hearing again now, and the only difference that I see is that Canadian culture seems to be much less inherently selfish. If the starting point in the US was a bunch of guys who think of themselves as lone wolves and who were almost aching to start a fight, maybe Canadians will be spared because norms up here do not (other than on a hockey rink) glorify violence.</span></span></p><p><span><span>From my perspective, I might be able at least to count on Canada's Alito-ists needing a few decades to turn the country into another anti-democracy battleground. But given the speed with which US politics was completely transformed, and given that the Canadian right would not need to reinvent the bigoted wheel, that seems like wishful thinking. Hate metastasizes quickly, and it is supported by billionaires who use it to their benefit.</span></span></p><p><span><span>Worse, however, is that the slide toward fascism need not be homegrown. In fact, it almost never is. How long would it take for Trump's fascist theocracy to decide not to wait for Canada to make the transition on its own? Would the Republicans tolerate a pluralist democracy on its northern border, or would they "liberate" Canada from its sinful ways? Consider how easy it was for Putin's Russia to pollute US political discourse, to the point that Trump shockingly became President in 2017. Now consider what would happen if American fascists decided to do the same to Canada (along with Australia and New Zealand).</span></span></p><p><span><span>Various European countries are already tipping toward authoritarianism, and even though fascist movements most commonly wrap themselves in nationalism, this is very much an international enterprise. It is simply too dangerous for dictators to allow their people to see other countries that still enjoy free elections, the rule of law, and protections for </span></span><a href="https://supreme.justia.com/cases/federal/us/304/144/" target="_blank">discrete and insular minorities</a>.</p><p>Politely resisting such pressures would surely not be enough. I am, therefore, still very much invested in the US retaining some semblance of its pre-Trumpian self. If the US falls, the rest of the world will not fall immediately -- and people would thus enjoy some delay before losing their freedoms and rights -- but it would be stunning if any country could hold its own in a world dominated by a repressive axis of the US, Russia, and China.</p><p>In a <a href="https://www.dorfonlaw.org/2024/03/how-trumps-theocrats-can-punish.html" target="_blank">column</a> earlier this month, I described the dangers of Trumpian theocracy solely in a domestic context. As I now look at the implications for those of us outside of the States, my question at the end of that column is no less urgent: "Are the stakes clear enough yet?"<br /></p>Neil H. Buchananhttp://www.blogger.com/profile/17577335934943074615noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-81583010426727439392024-03-07T16:50:00.006-05:002024-03-15T17:55:44.079-04:00The Motivated Thinking That Allows Trump's (and Reagan's) Supposedly Reasonable Defenders to Live With Themselves<p>I confess to being surprised that Senator Mitch McConnell has endorsed Donald Trump for President. I harbor no illusions about McConnell's deeply evil influence on American politics, going all the way back to his argument that low voter turnout among poor people is evidence that they are satisfied with their lives and see no reason to change anything (although he more recently simply <a href="https://www.gq.com/story/mcconnell-voter-turnout-bad" target="_blank">admitted</a> that high voter turnout is bad for Republicans). And let us not even start on his impact on the courts.</p><p>Even so, what the heck is he thinking? He is retiring after having a very contentious (mostly non-) relationship with Trump, and he should have every reason to want to save his party from the kind of hyper-populist extremism that has engulfed it in the last few decades. There was no reason to expect him to do the right thing for the right reason, but there were plenty of more McConnell-like reasons for him to ice out Trump at this point. Oh well. And if it has not happened already, we should expect that Nikki Haley will soon gulp her way to endorsing Trump as well. She will most likely flip-flop at least twice more, but we know where she is almost certainly headed.</p><p>McConnell and Haley are completely political in every way, hacks down to their DNA, but what about other people who end up supporting Trump when they should know better? Several days ago, a cable news <a href="https://youtu.be/YyuG_bty2fY?si=0KzYInoHVHwwd3uq " target="_blank">segment</a> included an interview with a young person named Sarah Matthews, who was apparently the deputy press secretary in the Trump White House for some amount of time that ended on January 6, 2021, when she resigned out of disgust with what had happened that day.</p><p>The newsworthiness of the segment is that Matthews has joined forces with the more well known former Trump White House aide Cassidy Hutchinson and a few others to sound the alarm about the danger that he poses to the country. That is very public spirited, of course, and one cannot help but applaud people in their position for refusing to do what McConnell and (soon enough) Haley cannot stop themselves from doing: caving and enabling a would-be dictator. It is shocking that there are not more Trump veterans banging the drums, and maybe some will become vocal as the election nears. As it stands, however, Matthews is notable for standing up when few others will.</p><p>Even so, Matthews did work for Trump in the first place. Why? Was she a super-MAGA true believer who drew the line at insurrection? Was she a reluctant Trump supporter who could not bear to do anything other than support and work for a nominal Republican? By her telling, no and no. Her reasoning, if one can call it that, was simply jaw-dropping. In the interview (starting at the 2:11 mark), she said this:</p><blockquote><p>I think I knew full well what kind of man he was when I went to go work for him, and I didn't necessarily agree with everything he said or did. But I knew that he needed people of good character to staff his administration, and so that's why I agreed to join. <br /></p></blockquote><blockquote><p>Look, I didn't vote for Donald Trump in 2016. And that's not something I think I've even said publicly -- this might be the first time I've said that, but I did not vote for him in 2016, because he did not win my vote over, because I didn't like the character of the man. <br /></p></blockquote><blockquote><p>But then, as we got into the Administration, I saw the policies and the people he surrounded himself with. Then, I was more OK with the idea of supporting him, and then when the opportunity came around, obviously I jumped at it.<br /></p></blockquote><p>To be clear, this is hardly the first time a disaffected Republican has trotted out the idea that "Trump's policies were so great that it's a shame that I can't support him." This is one of those tropes that interviewers let slide, and the person who says them is thus allowed to sound like they have ideas and principles. These people purport to be living in a world in which we have two parties that are pursuing serious policy agendas about which reasonable people can disagree. That might once have been true, but even before the shocking 2016 election result, it was obviously never going to be true of anything having to do with Trump.</p><p>Note that Matthews does not directly say it out loud, but the implication here is that she did in fact vote for Trump in 2020. This would mean that she experienced the utter chaos of the Trump Administration, including its latest, craziest stages, and told herself that "the policies and the people" were enough to support Trump. To the extent that people changed their minds about Trump from 2016 to 2020, it was overwhelmingly in the opposite direction, with many Republicans leaving Congress in disgust. Matthews somehow saw more to like as the disaster unfolded.<br /></p><p>All of which forces me to ask: What exactly are those policies that made her "OK with the idea of supporting" Trump? Was it the kids in cages on the border? The wall (and misappropriating funds to pay for it)? Trying to repeal the Affordable Care Act and replace it with "something great," to be revealed “two weeks from now” in perpetuity? The extremely regressive 2017 tax bill -- the only major legislation that Trump signed, and which was created by Republicans on the fly without even the most minimal hearings or review? (Even John McCain was happy to violate "regular order" to make that happen.) Kissing up to Putin and Kim? Starting a trade war with China? Or how about firing James Comey, strong-arming Ukraine, and undermining NATO? <br /></p><p>Or was it the relentless attack on safety regulations that put more lead in the air and water, made workplaces more dangerous, and allowed companies to sell dangerous products to children? That was in some ways the most insidious, relentless aspect of Trump's years in Washington -- and it will only become worse if he is ever there again.<br /></p>Yes, people can honestly favor some of those things, I suppose. But we cannot and must not act as if those are just "policy differences" that are analogous to disagreeing about, say, how much money to spend on public transportation. Someone who says that they were fine with Trump-era policies -- again, someone who did not in fact support him in the first instance -- is saying something rather shocking, even if she says it earnestly. The Trump era was largely not about policy, but to the extent that it was, it was about extreme policies that were not popular with the vast majority of the American people. (Abortions restricted, guns unrestricted.)<br /><p>And who are those great "people that he surrounded himself with"? Betsy DeVos? Rick Perry? Jeff Sessions? Ben Carson? How about Steve Bannon or Stephen Miller? And as Trump's term continued, he started putting even crazier people in charge. We went from Sessions to Bill Barr, with an acting guy in between who ran <a href="the policies and the people" target="_blank">a toilet scam</a>. The list of buffoons, cranks, and corrupt actors seems endless.</p><p>If a person holds themselves out as being something other than a Trump cultist but then argues that his presidency was acceptable because of the good policies and people, how can that person not be mocked mercilessly?<br /></p><p>All of this reminds me of the two-step that happened between Ronald Reagan's 1980 campaign and his 1984 reelection effort. In the earlier election, his supporters admitted that Reagan was obviously a confused simpleton but said that he would be surrounded by the very best people, so it was all going to be fine. After four years of scandal after scandal among Reagan's top people, all of a sudden the argument was that it was fine for there to be so many bad people in the White House because Reagan was such a reliably stable and wise leader.</p><p>With Trump, people started by saying that he would "grow in the office" and understand the gravitas of it all, with the suggestion that he would quickly learn that the border wall was a nonsensical idea and that governing was in fact a full-time job for serious people. When that did not happen, however, magical thinking allowed some people to say that it was "the policies and the people" that caused them to support the madman.</p><p>I do not think that any of the people who say what Matthews said (including Matthews herself) would defend more than a handful (at most) of the policies that I listed above, and they would most likely try to mention people whose reputations were not entirely sullied (Mattis, Kelly, maybe a few others) without noting that they were all fired.</p><p>But that is the point. "It's about the policies and the people" is not in fact meant to say that it is about the policies or the people. That sounds good in the abstract, like being in favor of "problem solving" or something, so people who do not want to admit what they are doing (or what they did) use it as a cover story.</p><p>Even so, this is beyond laughable. As noted above, what Matthews and others like her are doing now is a great service to the country, so much so that perhaps they deserve some slack. But sometimes it is necessary to call out absurdly self-absolving nonsense for what it is.<br /></p>Neil H. Buchananhttp://www.blogger.com/profile/17577335934943074615noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-25854747311285663702024-03-15T09:07:00.000-04:002024-03-15T09:07:04.009-04:00Fifth Circuit Decision Granting Texas Parents a Right to Veto Federal Access to Contraception is a Hot Mess<p>On Tuesday, the U.S. Court of Appeals for the Fifth Circuit (mostly) affirmed yet another ruling against the Biden administration issued by Federal District Judge Matthew Kacsmaryk--who is probably best known for his decision invalidating the long-ago FDA approval of the abortion pill mifepristone. In Tuesday's ruling in <i><a href="https://www.documentcloud.org/documents/24478139-23-10159-cv0" target="_blank">Deanda v. Becerra</a></i>, a panel of the Fifth Circuit upheld a decision by Judge Kacsmaryk obligating federally-funded Title X clinics to comply with a Texas law that gives parents veto power over their minor children's access to contraception, notwithstanding the federal government's argument that Title X pre-empts the state law.</p><p>In today's essay I don't directly address the Fifth Circuit's substantive conclusion. Rather, I'll delve into a number of oddities and procedural puzzles that call into question both the court's decision to reach the merits and the implications of the ruling going forward.</p><p>The <a href="https://law.justia.com/codes/texas/2022/family-code/title-5/subtitle-b/chapter-151/section-151-001/" target="_blank">Texas law at issue</a> isn't specific to contraception. It grants to parents of a minor child "the right to consent to the child's marriage, enlistment in the armed forces of the United States, medical and dental care, and psychiatric, psychological, and surgical treatment." Contraception is medical care. Thus, the state law does appear to give the plaintiff Alexander Deanda a right to block his minor daughter's access to contraception. (According to the Fifth Circuit panel, Deanda originally sued in his capacity as father of three minor daughters, but only one remains a minor.)</p><p>As an initial matter, the Texas law could well be unconstitutional. In <i><a href="https://supreme.justia.com/cases/federal/us/431/678/" target="_blank">Carey v. Population Services, Inc.</a></i> (1977), SCOTUS held that minors have a constitutional right to contraception. Meanwhile, in various post-<i>Roe </i>cases, the Court held that parents cannot be given blanket control over their minor children's access to abortion; a parental consent or even a parental notification law for minors seeking abortions was valid only with a judicial bypass. Presumably that would also be true of contraception, as some lower courts held. And because <i>Dobbs </i>purported to preserve the right to contraception, there remains a strong argument that state laws requiring parental consent for contraception are unconstitutional unless they provide for a judicial bypass. If that's so, then one never even gets to the pre-emption question because the Texas law, which does not include a judicial bypass, is simply invalid as applied to block minors' access to contraception.</p><p>But no one seems to have made that argument, so I'll set it aside for now.</p><p>Even so, it's not at all clear that Deanda has stated a claim that arises under federal law, as required to satisfy the <a href="https://www.law.cornell.edu/uscode/text/28/1331" target="_blank">jurisdictional statute.</a> Lawyers and law students will recall the famous 1908 SCOTUS case of <i><a href="https://supreme.justia.com/cases/federal/us/211/149/" target="_blank">Louisville & Nashville Ry. Co. v. Mottley</a></i> as setting out the well-pleaded complaint rule:<i> </i>to get into federal court on federal question jurisdiction, the federal question must be part of the plaintiff's affirmative case; it cannot arise as a defense or in response to an anticipated defense. But plaintiff Deanda is anticipating a defense. He's saying that he has a right <i>under state law </i>to control his minor children's access to contraception. The federal issue arises by way of defense: the defendants say that the state law right doesn't control because it is pre-empted by federal law. At that point and only at that point--in response to an anticipated defense of federal pre-emption--plaintiff Deanda says that federal law does not pre-empt state law.</p><p>Thus, had Deanda filed a complaint that contained only the pre-emption claim, it would have been properly dismissed for lack of subject matter jurisdiction. However, Deanda's complaint contained two additional claims that are unquestionably federal: a claim for an exemption from federal law under the Religious Freedom Restoration Act (RFRA) and a claim that federal law violates Deanda's federal substantive due process right to direct the upbringing of his children. Under the <a href="https://www.law.cornell.edu/uscode/text/28/1367" target="_blank">federal supplemental jurisdiction statute</a>, if there was federal question jurisdiction over either of those claims, then the pre-emption claim (which, as noted above, does not arise under federal law) can come along for the ride. </p><p>The plaintiff withdrew his RFRA claim, so that can't be the federal anchor for the state law "not pre-empted" claim. Meanwhile, the federal parental rights claim is quite weak (even though Judge Kacsmaryk accepted it). Even if <i>Carey </i>plus the judicial bypass cases of the pre-<i>Dobbs </i>era are no longer good law (contrary to Justice Alito's assurances), that would mean only that there is no constitutional right of minors to contraception in the face of parental opposition; it would not mean that parents have a right to complete control over their minor children's medical care.</p><p>So far as I can tell, the government did not raise an objection to the statutory basis for subject matter jurisdiction, but that shouldn't matter. Courts have an obligation to assure themselves of subject matter jurisdiction regardless. So, what did the Fifth Circuit say about all of this?</p><p>Nada. Zip. Zilch.</p><p>After concluding that the plaintiff had Article III standing (more about that below), the court immediately proceeded to address the substantive pre-emption question without pausing to notice that that question arises under state, not federal law, and without assuring itself that the only remaining federal claim--the substantive due process parental rights claim--is substantial enough to anchor the non-pre-emption state law claim.</p><p>Only after concluding that federal law does not pre-empt the state law did the Fifth Circuit panel turn to the substantive due process parental rights claim, saying that because Deanda wins on pre-emption, the court need not address "the district court's holding that the Secretary's administration of Title X violates Deanda's constitutional right to direct his children's upbringing."</p><p>But that's wrong. If the parental rights claim fails as a matter of law, then it should be dismissed. And if it is dismissed, then per the supplemental jurisdiction statute, the district court "may decline to exercise supplemental jurisdiction" over the state law non-pre-emption claim. </p><p>Ah, you say, <i>may </i>means <i>may</i>. Except that it doesn't really. As the Fifth Circuit has repeatedly held, including in <a href="https://casetext.com/case/integranet-physician-res-v-tex-indep-providers-llc" target="_blank">this 2019 case</a>, generally when all federal claims are dismissed before trial, the state law claims--here the state law claim and its anticipation of a federal defense--should also be dismissed and sent to state court. Failure to do so by a district court judge is a reversible abuse of the discretion granted by that permissive word "may."</p><p>If the Fifth Circuit panel had taken seriously its duty to assure itself of subject matter jurisdiction, it would have evaluated the parental rights claim and, if it found the claim wanting (as it ought to have), ordered the dismissal of the rest of the case.</p><p>But wait. There's more.</p><p>Deanda appears to have sued the wrong defendants. The complaint named three defendants: the federal Secretary of Health and Human Services; the Deputy Assistant Secretary for Population Affairs; and the United States itself. If this were a case under the Administrative Procedure Act (APA), something like that might have been proper. But it wasn't. It was a standard-issue lawsuit seeking declaratory relief to protect Deanda's asserted parental rights against violation.</p><p>Yet neither the United States nor either of the federal government officials Deanda sued can violate his asserted state or federal parental rights by distributing contraceptives to his minor daughter without his consent for the simple reason that the federal government does not distribute contraceptives. Rather, it distributes money to clinics. As a condition of receiving that Title X money, the clinics agree that they will keep patient information confidential--which has the effect of denying Deanda and other Texas parents such rights as they may have to deny their consent to treatment. But it's the clinics, not the federal government, that would be doing the distributing without parental consent.</p><p>Deanda ought to have sued a Title X clinic claiming a violation of his parental rights. At that point, the clinic would have raised federal law as a defense: federal pre-emption. Then Deanda could have argued that the state law is not pre-empted. The federal government could have intervened as a defendant to join the clinic in arguing for pre-emption. But the initial lawsuit had to have been against some party that was capable of distributing contraceptives to Deanda's minor children.</p><p>Why didn't Deanda sue some particular clinic? Presumably because he had no credible fear that his daughter would go to <i>any </i>Title X-funded clinic. Had Deanda sued a particular clinic or even a group of clinics, it would have been incumbent on him at least to allege a substantial risk that his minor daughter might show up there some day without his knowledge or consent.</p><p>Notably, the Fifth Circuit panel nonetheless found standing because it conceptualized Deanda's injury as the deprivation of his right to know whether his minor daughter was seeking contraception (thus also depriving him of his right to consent to or not consent to its provision). That's a clever move, but it's hardly clear that Deanda has a concrete and particularized injury absent some allegation that his minor daughter poses a substantial risk of visiting a Title X clinic--even assuming that Deanda had sued the right party.</p><p>Consider an analogy. <a href="https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/cfrsearch.cfm?fr=314.126" target="_blank">Longstanding federal regulations</a> require well-controlled experiments for phase 3 drug trials, which often means blinding patients to whether they are receiving the experimental drug or a placebo. Suppose that P asserts a right to know whether he's receiving the experimental drug or the placebo. It's too late to challenge the longstanding regulations via an APA case (before anyone other than Judge Kacsmaryk!), so let's imagine that in this hypothetical case, as in the real contraception case, P brings an ordinary lawsuit against the Secretary of Health and Human Services. There would still be the problem that P is suing the wrong defendant, but put that issue aside. Even to have standing, P would need to allege that he is either enrolled in or currently seeking to enter a phase 3 trial for <i>some drug.</i> At the absolute minimum, P would have to allege that he has some illness for which there is a drug trial in the offing. Surely it does not suffice for standing (under the SCOTUS precedents) for P to say that it's always possible that he'll get some illness for which approved treatments, if any, are not likely to be as effective as some experimental treatment, and thus he has standing to challenge the blinding requirement. Yet that is equivalent to what Deanda is alleging with respect to the Title X confidentiality requirement.</p><p>There is one final odd twist to this case that makes it potentially unimportant but also terribly confusing. After Deanda filed his initial lawsuit and after briefing on summary judgment, the government promulgated a <a href="https://www.law.cornell.edu/cfr/text/42/59.10" target="_blank">regulation</a> requiring that federally funded clinics must keep patient information confidential, expressly stating further that "Title X projects may not require consent of parents or guardians for the provision of services to minors, nor can any Title X project staff notify a parent or guardian before or after a minor has requested and/or received Title X family planning services." That regulation <i>obviously </i>pre-empts the Texas law. There is simply no way to reconcile a federal prohibition on notifying parents with a state requirement to seek their consent (which requires knowledge).</p><p>Yet because the plaintiff didn't challenge the regulation under the APA, the Fifth Circuit panel held (correctly on this point) that Judge Kacsmaryk went too far by invalidating the reg. But if the reg is still valid, what remains of Judge Kacsmaryk's order of judgment? Here is the order:</p><blockquote><p>1. The Court DECLARES that Defendants' administration of the Title X program violates Plaintiff's rights under Section 151.001(a)(6) of the Texas Family Code, as there is nothing in 42 U.S.C. § 300(a) that purports to preempt state laws requiring parental consent or notification before distributing contraceptive drugs or devices to minors.</p><p>2. The Court DECLARES that Defendants' administration of the Title X program violates Plaintiff's fundamental right to control and direct the upbringing of his minor children, which is protected by the Due Process Clause of the Fourteenth Amendment, as protected by the Supreme Court of the United States.</p><p>3. The Court HOLDS UNLAWFUL and SETS ASIDE the second sentence of 42 C.F.R. § 59.10(b) as “not in accordance with law,” “contrary to constitutional right, power, privilege, or immunity,” and “in excess of statutory ... authority.” 5 U.S.C. § 706(2)(A)–(C).</p><div></div></blockquote><div>The Fifth Circuit panel decision affirms point 1, doesn't reach point 2, and reverses on point 3. But reversing on point 3 renders point 1 unimportant: so what that Title X doesn't pre-empt the state law? The federal regulation at 42 C.F.R. § 59.10(b) clearly does pre-empt the state law.</div><div><br /></div><div>What about point 2? The Fifth Circuit panel said it didn't need to reach it, but that can't be right. If point 2 stands, then no provision of federal law--neither Title X nor the reg--can bar parental consent. A federal constitutional right supersedes both a federal statute and a federal regulation. So point 2 effectively invalidates the reg, even though the Fifth Circuit panel reversed Judge Kacsmaryk's point 3. What gives? Is the reg valid for now or not?</div><div><br /></div><div>My best guess is yes, the reg remains valid (unless and until Deanda or someone else successfully challenges it under the APA), but the panel sowed confusion by saying that it didn't need to reach the substantive due process claim. That claim underwrites broader relief than point 1.</div><div><br /></div><div>Perhaps when the government seeks en banc review and/or certiorari, it can seek to have the substantive due process claim adjudicated--both for purposes of destroying supplemental jurisdiction and, in the event that fails, to clarify what exactly the status of the reg is.</div>Michael C. Dorfhttp://www.blogger.com/profile/02021009233932690926noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-16892929700918807142024-03-14T15:34:00.003-04:002024-03-14T23:16:08.002-04:00Yes, of Course the Democrats Should Be Trying to Get People to Believe the Good News About Inflation<p>One of the most infuriating habits among centrist and left-leaning politicians and pundits is their almost pathological urge to give ground to conservatives. Any time I see or hear "to be fair" or something similar, I brace myself for what comes next. Sometimes, it is a relief to see that it merely leads to a useful clarification, as in, "To be fair, these are alleged facts in a criminal complaint, not a legal finding." Too often, however, the "fairness" involves unilateral disarmament.</p><p>The most recent example of this phenomenon is discussion of inflation in the US. There are too many examples to count or cite of non-Republicans saying<i>, </i>"<i>To be fair</i>, inflation is a big problem," or "Well, people <i>are</i> worried about inflation." Within a single one-hour period earlier this week, I heard two pundits on MSNBC (on different segments on different shows) assert casually that "Well, inflation <i>is</i> still too high," and "Sure, people have a right to be angry about inflation." And to be clear, those two pundits were not among the legion of MSNBC on-air personalities who are on the "liberal" cable network only because they are apostate Republicans while still being very conservative in their policy views. (Joe Scarborough is only the most obvious of many examples).</p><p>Several months ago, Professor Dorf wrote an excellent <a href="https://www.dorfonlaw.org/2023/11/public-and-pundit-confusion-between.html" target="_blank">column</a> in which he discussed how even people who ought to know better nonetheless confuse "falling inflation" with "falling prices." The latter is called <a href="https://www.investopedia.com/ask/answers/040715/were-there-any-periods-major-deflation-us-history.asp" target="_blank"><i>deflation</i></a> and would be disastrous for the economy (examples include both the Great Depression and the 2008-09 Great Recession), whereas the former means that prices do rise but at a slower rate. Here, my point is that people who ought to know better are making a similarly damaging political/rhetorical error -- conceding a problem that does not exist and then scolding anyone who tries to argue that Americans should be told the truth about inflation.</p><p>It is true that Democrats, and especially the Biden White House, have been making some efforts to spread the good news about inflation. <i>New York Times</i> columnist and economist Paul Krugman has been making his own efforts to set the public record straight, most recently in a <a href="https://www.nytimes.com/2024/03/12/opinion/inflation-soft-landing-economy-unemployment.html?searchResultPosition=1" target="_blank">newsletter</a> (paywalled, unfortunately) where he summarized the latest available data. He pointed out that inflation as measured by the Consumer Price Index (CPI) and excluding volatile energy and food prices was 3.8 percent over the 12-month period ending last month, and he added that quirks in the way that the CPI is measured (especially involving housing prices) can and do mask an even larger recent decline in inflation.</p><p>More importantly, Krugman pointed out that the Federal Reserve's preferred measure of inflation is not the CPI but another data series called "Core PCE" (the Personal Consumption Expenditure price index excluding food and energy). Although the February estimate for Core PCE is not yet available, annual inflation through January was 2.5 percent based on that measure.</p><p>And because the Fed's target rate of inflation is 2.0 percent (which is an <a href="https://www.nytimes.com/2014/12/21/upshot/of-kiwis-and-currencies-how-a-2-inflation-target-became-global-economic-gospel.html" target="_blank">arbitrary target</a> that is in fact <a href="https://www.nytimes.com/2023/03/24/business/inflation-federal-reserve-interest-rates.html" target="_blank">too low</a>, but I digress), inflation is now essentially already back to where the Fed wants it to be. Seriously, a 0.5% difference is nothing in this context, and people who would make a big deal about it are either dishonest or irrationally ultra-averse to even the slightest risk of accelerating inflation. I cannot help but point out that such people do not publicly warn that being below 2.0 percent could get out of hand and tip us below 0.0 percent -- that is, into deflation, which can spiral out of control all too easily. Why the asymmetry?<br /></p><p>As happens all too often, however, the people on TV and the non-Krugman people on the op-ed pages are not only generally ignorant of such facts (and of basic economic concepts) but are unmotivated to become aware of reality. Worse, their fundamental motivation is to be seen as Very Serious People, which means that they are part of the groupthink that is modern punditry. (See also anti-deficit scaremongering.). When they say that inflation is a big deal, they do so because everyone else is saying it, which means that it is safe to echo whatever others are saying without knowing even the most basic facts, including that inflation is already quite low.</p><p>Among centrists and left-leaning pundits, this groupthink then combines with the "to be fair" instinct and leads them to a defeatist attitude about even trying to engage with voters about the realities of inflation: "Well, the Republicans do have a winning political message on inflation that Democrats need to acknowledge."<br /></p><p>Here, however, the self-defeating mindset is even worse, because when confronted with the Biden team's efforts to do what they in fact should be doing -- pushing back against the doom-and-gloom pronouncements about inflation -- the response is something like this: <i>It's never a winning strategy in politics to tell people that they shouldn't feel the way they feel. If the public is angry about "high prices," Democrats will only alienate them by telling them otherwise</i>.</p><p>That formulation has generated endless navel-gazing pieces about "vibeflation" and such nonsense, with pundits wondering why such good economic news is not penetrating the public's consciousness but then warning that Democrats should not try to set them straight. For some reason, inflation is one of the good news stories that Democrats are not supposed to tout (the other major one being crime, which is in fact another notable success story), lest they anger people who will say, "Hey, I feel the way I feel." Even setting aside that the full version of that sentence is insane -- "Hey, I feel the way I feel, so I'm going to vote for an openly fascist candidate who has no plan to deal with inflation" -- how in the world did we reach the point where Democrats and their allies are convincing each other not to run on success?</p><p>To put the point differently: Politics is about <i>nothing but</i> telling people how they should feel. Republicans spend almost all of their time telling people to be scared of things -- things that are not in fact scary. For example, another supposed "to be fair" advantage that non-Republican analysts tell Democrats to concede is immigration policy, which is a classic example of Republicans' fearmongering based on blatant lies. Republicans are not respecting people's supposed right to "feel the way I feel." Republicans are telling them exactly how to feel. Non-Republicans sometimes contest the lies that Republicans are spewing, but I have not heard anyone say anything like this: <i>You know, this border mania is going to blow up in Republicans' faces, because voters hate to be told how to feel.</i></p><p>Republicans tell people how to feel about abortion, about crime, about LGBTQ+ people, about racism, about God. Democrats tell people how they should feel about plenty of things as well. That is what they should do, because they are trying to persuade people. And last I checked, persuading someone involves telling them that the way they feel right now is the wrong way to feel. Democrats have the advantage of being non-theocrats and non-sociopaths whose values and policy proposals are widely popular, so why surrender those advantages by staying mum? </p><p>To be fair, it is possible to try to persuade people but end up alienating them instead. It is always true that advocates should try to draw people in rather than push them away. That is not what is happening here, however, where the argument seems to be that Democrats should not try at all to tell people that inflation is almost exactly back to its target rate and that wages are now rising faster than prices. (See how I used "to be fair" here in a way that was not self-negating?)</p><p>The political adage that "if you're explaining, you're losing" is a relative concept expressed as an absolute, but explaining is the essence of running for office and then leading once in office. What are Democrats supposed to do instead? Apparently, they should just shout, "Squirrel!" and change the subject. Perhaps they should instead stop being afraid of their own shadows and dare to tell people that the world has gotten much better, very much including inflation.<br /></p>Neil H. Buchananhttp://www.blogger.com/profile/17577335934943074615noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-9754685576555252522024-03-12T07:00:00.001-04:002024-03-12T14:22:22.676-04:00Judicial Review, the Supreme Court, and a Possible Constitutional Apocalypse<p>Alexander Hamilton <a href="https://avalon.law.yale.edu/18th_century/fed78.asp" target="_blank">explained</a> in Federalist No. 78 the rationale for the Founding Fathers giving judges the power to strike down laws enacted by the legislature. He said the following:</p><p style="background-color: white; line-height: 16.9869px; text-indent: 25px;"><span style="font-family: inherit;"></span></p><blockquote><p style="background-color: white; line-height: 16.9869px; text-indent: 25px;"><span style="font-family: inherit;">The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. <i>If there should happen to be an irreconcilable variance between the two</i>, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.</span></p><p style="background-color: white; line-height: 16.9869px; text-indent: 25px;"><span style="font-family: inherit;">Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.</span></p></blockquote><p>What Hamilton did not anticipate was that much of the Constitution's imprecise language, such as the text of the First and Second Amendments, would be applied by future judges to a constantly changing society. He likely thought the very heavy burden of proof he was placing on those challenging laws (plaintiffs must show an irreconcilable variance between a statute and the Constitution) would keep judges in their place. But, of course, he was wrong, and starting in 1857 with the infamous <i><a href="https://www.oyez.org/cases/1850-1900/60us393" target="_blank">Dred Scott</a> </i>decision, the justices have been striking down laws at a rate and in important cases in ways that few Founding Fathers, especially Hamilton, anticipated.</p><p>In most of these cases, the Court is not acting as an agent of the people or the enforcer of a supreme law, but the creator of constitutional rights and limits that simply do not follow from the constitutional text or its history. <i>Dred Scott, The Civil Rights Cases, Lochner, Reynolds v. Sims, Roe, Heller, Shelby County, Seila Law, </i><i>Trinity Lutheran, Bruen, and SFFA v. Harvard </i>are just a few examples of many country-changing decisions where there is no available argument that the laws invalidated were at an "irreconcilable variance" with the Constitution. Liberal, conservative, and moderate justices have all invalidated major legislation without serious and persuasive grounding in the text or history of the Constitution.</p><p>And now we have what might be the most important Supreme Court term in American history. The justices have to decide cases concerning Presidential<a href="https://www.scotusblog.com/2024/02/supreme-court-takes-up-trump-immunity-appeal/" target="_blank"> immunity</a> (which might be directly relevant to the next presidential election and the very existence of our democracy), <a href="https://www.scotusblog.com/2024/02/supreme-court-split-over-bump-stock-ban/" target="_blank">gun contro</a>l,<a href="https://www.scotusblog.com/2024/01/court-schedules-abortion-pill-case-for-march-argument-session/" target="_blank"> abortion</a>, state <a href="https://www.scotusblog.com/2024/02/supreme-court-skeptical-of-texas-florida-regulation-of-social-media-moderation/" target="_blank">regulation</a> of social media, <a href="https://www.scotusblog.com/2024/02/supreme-court-likely-to-block-epa-ozone-regulation/" target="_blank">administrative law</a>, and the <a href="https://www.scotusblog.com/2024/01/justices-take-up-bid-to-overturn-oklahoma-death-sentence/" target="_blank">death penalty</a> among other important cases. Obviously, a ruling granting Trump immunity would be catastrophic for the country and the Court. I do not expect that to happen.</p><p>But how the Roberts Court handles the rest of the Term will likely impact America in a dramatic and controversial manner. If the Roberts Court continues on its partisan course and decides these cases like Justices Alito and Thomas prefer, meaning the major consideration is always the values promoted by the Republican Party and the Federalist Society, we are heading towards a June that may damage our country considerably, perhaps beyond repair. The current partisan imbalance on the Court is taking such an extreme form that it is difficult to find historical analogues.</p><p>During the Warren and early Burger Court's liberal period, for example, the justices issued numerous landmark opinions that were extremely conservative. For example, in <i><a href="https://www.oyez.org/cases/1940-1955/349us294" target="_blank">Brown II</a></i>, the justices told the country to move with "all deliberate speed" to end segregated schools, but that turned out to be almost no speed at all. In 1963, nine years after <i>Brown</i>, Southern schools were still about 98% <a href="https://press.uchicago.edu/ucp/books/book/chicago/H/bo193463251.html" target="_blank">segregated</a>.</p><p>After a very short period of judicially imposed desegregation rulings during the late 1960's and early 1970's, the Court effectively ended serious efforts to desegregate public schools by saying states did not have to cure segregation not caused directly by formal state laws. But centuries of legal slavery, segregation, and red-lining caused segregated housing patterns. To the majority of justices, too bad, so sad. To poor Black Americans, this hands-off attitude was and is a tragedy dooming many of their children to poverty and racially imbalanced public schools.</p><p>In 1959, the Court <a href="https://caselaw.findlaw.com/court/us-supreme-court/360/45.html" target="_blank">upheld</a> literacy tests for voting. In 1961, the Court <a href="https://supreme.justia.com/cases/federal/us/366/420/" target="_blank">upheld</a> Sunday closing laws against a religious clauses challenge. These were important conservative decisions.</p><p>Skipping ahead a few years, the year the Court decided <i>Roe</i>, the justices <a href="https://www.oyez.org/cases/1972/71-1332" target="_blank">rejected</a> efforts by liberal groups to classify public school education as a fundamental right and to make poverty a suspect classification for equal protection purposes. The rejection of these efforts had major negative impacts on the poor and people of color.</p><p>And in perhaps the most under-appreciated case in American history in terms of its impact, during this period the Court also <a href="https://www.oyez.org/cases/1975/74-1492" target="_blank">held </a>that plaintiffs must prove intentional discrimination to win an equal protection clause case-a racially disproportionally impact, no matter how large, is not enough. The effect of this holding was to answer 400 years of legally allowable racism with a shrug and say racial impacts alone do not justify judicial intervention. But racially neutral laws in a country with our sordid history lead directly to more racial inequality on the ground. Few lawmakers, even in the Trump era, are foolish enough to leave a trail of intentional racism.</p><p>As Professor Justin Driver has <a href="https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=7946&context=journal_articles" target="_blank">said</a> so well, the "scholarly attention lavished upon liberal achievements has regrettably obscured how constitutional conservatism significantly shaped the Warren Court era. Examining those underappreciated instances where liberal victories were attainable, but the Court declined to deliver, should bring the Warren Court into a sharper historical focus."</p><p>Although the Rehnquist and early Roberts Courts issued some important liberal decisions, those days are over. Since Justice Kennedy retired and Justice Ginsburg passed away, the Roberts Court has been on a conservative rampage, <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf" target="_blank">overturning</a> <i>Roe</i>, <a href="https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf" target="_blank">turning</a> the Second Amendment into a super-charged destroyer of reasonable gun reform, <a href="https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf" target="_blank">ending</a> affirmative action, greatly <a href="https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf" target="_blank">strengthening</a> the free exercise clause, ignoring and/or <a href="https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf" target="_blank">distorting</a> the establishment clause, and <a href="https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf" target="_blank">trying</a> to return to a libertarian, pre-New Deal understanding of the administrative state. In other words, the justices in a very short time have implemented a substantial part of the Federalist Society's most important policy agenda. Although there have been a handful of moderate decisions, there have been no liberal victories remotely comparable to the Warren and Burger Court conservative decisions described above. In short, there is no balance at all.</p><p>On this site a few years ago, I <a href="https://www.dorfonlaw.org/2020/01/supreme-overreaching-justices-should.html" target="_blank">wrote</a> that the Court should return the issues of abortion, affirmative action, and gun control to the political process. My personal philosophy about judicial review goes all the way back to Hamilton. The justices should not overturn laws absent clear constitutional error--meaning an irreconcilable variance between a law and the Constitution. That regime, if faithfully implemented, would give me both losses and defeats, given my own values, and I can live with that. I think most Americans could live in a country where they get their way or not based on voting (assuming fair elections). But Americans have a hard time, and they should, being told what to do by elite judges based on their values and politics, not the text and history of the Constitution.</p><p>The justices might or might not be sensitive to these concerns. My best guess is that they think they can run the table on their own politics as long as they deny Trump immunity. But I think that reasoning is likely to backfire. There's a constitutional apocalypse on the horizon, and I do not expect We the People to take it lying it down.</p><p style="background-color: white; line-height: 16.9869px; text-indent: 25px;"><span style="font-family: inherit;"></span></p>Eric Segallhttp://www.blogger.com/profile/08823293006574144651noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-23164208482534732892024-03-11T07:00:00.023-04:002024-03-11T07:56:36.485-04:00Litigation as Transphobic Theater<p>Bruce Blakeman is the County Executive for Nassau County (on Long Island). Last month, he issued <a href="https://www.nassaucountyny.gov/DocumentCenter/View/43897/EXEC-ORDER-2-24?bidId=" target="_blank">an executive order</a> barring transgender girls and women from competing in girls’ and womens’ sports at Nassau County facilities. New York State Attorney General Letitia James then sent Blakeman a <a href="https://ag.ny.gov/sites/default/files/letters/2024.3.1-cease-and-desist-nassau.pdf" target="_blank">cease-and-desist letter</a> on the ground that the executive order violates state law. She is clearly right about that. For example, one of the provisions AG James cited is <a href="https://law.justia.com/codes/new-york/2022/cvr/article-4/40-c/" target="_blank">a state civil rights statute</a> that provides, as relevant here: "No person shall, because of . . . gender identity or expression . . . be subjected to any discrimination in his or her civil rights . . . by the state or any agency or subdivision of the state."</p><p>To my knowledge, Blakeman does not deny that his executive order violates state law. However, he believes he is nonetheless entitled to enforce it because he thinks the state law discriminates based on sex in violation of the federal Constitution and federal Title IX. That contention is not just wrong but outrageously wrong. Blakeman is not merely saying that federal constitutional and statutory antidiscrimination law <i>permit </i>anti-trans discrimination. He contends that federal law <i>requires </i>such discrimination.</p><p>That's preposterous. In <i><a href="https://www.law.cornell.edu/supremecourt/text/17-1618" target="_blank">Bostock v. Clayton County</a>, </i>the Supreme Court concluded that Title VII forbids anti-trans discrimination in employment. The Court left open the possibility that Title VII and other sex discrimination prohibitions might permit anti-trans discrimination in other contexts, but added that its ruling did "not purport to address bathrooms, locker rooms, or anything else of the kind." So even though Title IX closely parallels Title VII, it's possible that in a future case the Court could hold, consistent with <i>Bostock</i>'s disclaimer, that Title IX <i>permits </i>anti-trans discrimination in some contexts, perhaps including girls' and women's sports.</p><p>The <i>Bostock </i>dissenters worried that the logic of the majority's ruling would forbid anti-trans discrimination in girls' and women's sports. But notably, no one in <i>Bostock</i>--certainly not the majority and not even the dissent--so much as hinted at the extreme position asserted by Nassau County Executive Blakeman and his team of anti-woke warrior-lawyers: that Title IX and equal protection <i>require </i>anti-trans discrimination.</p><p>Wait. It gets worse. Blakeman chose to express his ill-founded disagreement with New York State law by suing the Attorney General in federal court. In addition to the absurdity of the underlying substantive view, there are multiple procedural difficulties with Blakeman's lawsuit. </p><p>I'll begin with the sheer sloppiness of the complaint. In its final paragraph, the complaint asks the court for various remedies, including, unintentionally amusingly, "permanently enjoying the Defendants . . ." when it ought to have said "permanently enjoining." I for one enjoyed that error.</p><p>Slightly more substantively, the complaint contains one cause of action--for a declaratory judgment. Anybody who successfully completed a semester of law school would know that a declaratory judgment is a remedy, not a cause of action. A cause of action (actually called a "claim" in federal court) is a substantive legal basis for relief. Meanwhile, and confusingly, the complaint actually seeks <i>both </i>a declaratory judgment and an injunction, so even if the complaint's authors thought that a declaratory judgment were a cause of action, they ought to have included a second cause of action for an injunction.</p><p>What causes of action might a minimally competent lawyer have included in the complaint? To answer that question, let's consider the parties. The complaint lists as plaintiffs County Executive Blakeman, a sixteen-year-old cisgender female volleyball player, and her father. The one who comes closest to having a claim is the volleyball player.</p><p>Based on the complaint's allegations (which are supported almost entirely by footnotes that provide links to news reports about events in other states), it appears that the volleyball player is concerned that: (a) she might some day find herself in the same locker room as a transgender girl, which would make her uncomfortable; (b) allowing transgender girls to compete against her is unfair because of assumed performance differences attributable to chromosomal differences; and (c) a transgender girl might hit a volleyball so hard as to injure her (yes, the complaint actually says that). These factual allegations are invoked in ostensible support for the claim that state law, by allowing transgender girls to compete with cisgender girls, violates the federal Fourteenth Amendment's Equal Protection Clause and Title IX.</p><p>As I noted, that substantive argument is ridiculous, but even if it were plausible, the plaintiff would still need a cause of action. Leaving all of the low-hanging fruit on the tree, the crackerjack attorneys hired by Nassau County don't name any, even though, at least with respect to the volleyball player, they could have easily done so. For her equal protection claim, the volleyball player could have relied on <a href="https://www.law.cornell.edu/uscode/text/42/1983#:~:text=Every%20person%20who%2C%20under%20color,any%20rights%2C%20privileges%2C%20or%20immunities" target="_blank">42 U.S.C. § 1983</a> as well as the doctrine of <i><a href="https://supreme.justia.com/cases/federal/us/209/123/" target="_blank">Ex Parte Young</a></i>. For the Title IX claim, she (and her lawyers) could have cited the implied private right of action recognized in <i><a href="https://supreme.justia.com/cases/federal/us/441/677/" target="_blank">Cannon v. University of Chicago</a>.</i> Maybe if those lawyers read or otherwise learn of this blog post, they'll amend their complaint to do so--right after they learn the difference between a remedy and a cause of action. If so, you're welcome.</p><p>Why am I offering free advice to the lawyers engaged in this transphobic enterprise? For one thing, because, as noted above, they're going to lose on the merits, given the absurdity of their position. For another, because even if the complaint were amended to state a claim, the volleyball player and her father would be tossed for lack of standing or, what amounts to the same thing in this context, ripeness.</p><p>Nowhere does the complaint allege that the volleyball player faces any imminent risk of the harms alleged. It <i>says </i>that "the threats described are not conjecture or speculation," but the only examples are, as noted above, taken from tendentious news reports, such as <a href="https://www.nationalreview.com/news/female-volleyball-player-testifies-to-physical-mental-trauma-since-injury-by-trans-athlete/" target="_blank">this <i>National Review </i>story</a> reporting on testimony before the North Carolina legislature. One can feel bad for anyone seriously injured playing volleyball, but given <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10333631/" target="_blank">the overall rate of volleyball injuries</a>, the sixteen-year-old would have a much easier time establishing standing to enjoin <i>all </i>volleyball rather than demonstrating a substantial risk of the harms alleged to arise based on the possibility of occasionally having to play volleyball with or against transgender girl.</p><p>If the volleyball player and/or her father had legal standing, then--pursuant to the "one plaintiff rule" (which you can read all about in <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4742129" target="_blank">this excellent forthcoming article </a>by Professor Riley Keenan)--County Executive Blakeman could also join in, even if he lacks standing or his own valid claim. But because the volleyball player and her father almost certainly have not done enough to establish a ripe case or controversy, Blakeman needs to come up with his own legal claim and standing. The complaint does not indicate how its authors think he can do so (or even that they are aware that he needs to.)</p><p>There is reason to think that Blakeman lacks a cause of action. He can't bring a § 1983 action, because <i>his rights</i> under Title IX and equal protection have not been violated--even under the ridiculous assumption that failure to discriminate against transgender athletes violates federal law. It's possible that Blakeman could bring an <i>Ex Parte Young </i>action against the Attorney General, but I've never heard of a local government official doing that. I did enough legal research to persuade myself that if it has happened before, it's very rare.</p><p>For readers unfamiliar with the idea, <i>Ex Parte Young </i>stands for two propositions: (1) that state sovereign immunity bars private lawsuits for money damages but does not bar private lawsuits against a state official for prospective injunctive relief; and (2) that, as the Supreme Court acknowledged in <i><a href="https://supreme.justia.com/cases/federal/us/575/320/" target="_blank">Armstrong v. Exceptional Child Center, Inc.</a></i>, there exists a judge-made equitable cause of action to enjoin state officials from violating federal law. Proposition (1) has no bearing on a case like the County Executive's suit, but proposition (2) arguably does.</p><p>But even if Blakeman has an <i>Ex Parte Young </i>action in theory, in practice that's blocked by state law. The New York Court of Appeals (the state's highest court) <a href="https://casetext.com/case/city-of-n-y-v-state-of-ny-6" target="_blank">has expressed the view</a> that local governments "and their officers lack capacity to mount constitutional challenges to acts of the State and State legislation." And because capacity to speak for the state in federal court turns on how the state carves up its own authority (as the Supreme Court held in<a href="https://www.law.cornell.edu/supremecourt/text/18-281#writing-18-281_OPINION_3" target="_blank"> this 2019 case)</a>, that incapacity would also appear to render a county executive unable to sue the state in federal court.</p><p>Given all of the foregoing substantive and procedural obstacles, it is impossible to escape the conclusion that the County Executive's lawsuit is simply transphobic theater, offered up as red meat to the most carnivorous members of the Republican Party base on Long Island. Had it been filed in <a href="https://www.txnd.uscourts.gov/judge/judge-matthew-kacsmaryk" target="_blank">federal district court in Amarillo, Texas</a>, perhaps it would have had a chance. But if it is assigned to a judge who follows the law, it should be dismissed.</p>Michael C. Dorfhttp://www.blogger.com/profile/02021009233932690926noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-36589208289948812912024-03-08T15:51:00.000-05:002024-03-08T15:51:17.854-05:00Does the Court's Aggressive Overreach in the Trump Disqualification Case Suggest (Oddly) that the Rich Cannot be Taxed?<p>It is somewhat head-spinning to note that the Supreme Court's gift to Donald Trump in the Colorado case -- keeping him on all presidential ballots nationwide, despite the Fourteenth Amendment's disqualification of insurrectionists and those who have "given aid or comfort to the enemies thereof" -- was <a href="https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf" target="_blank">issued</a> only four days ago. <i>Trump v. Anderson</i> now counts as old news, it seems, but on this quiet Friday afternoon, I want to return to that case and draw a somewhat counterintuitive connection with another pending case before the Court.</p><p>Professor Dorf's brilliant <a href="https://www.dorfonlaw.org/2024/03/nine-justices-in-search-of-excuse-to.html" target="_blank">critique</a> of <i>Anderson</i> covers all of the relevant issues, of course, but I want to focus solely on a particular matter that caused some understandable outrage among critics. The per curiam opinion concluded that federal legislation is necessary to enforce Section 3's Disqualification Clause, yet even Barrett's concern-trolling concurrence argued that it was unnecessary to reach "the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced," because the Court could have saved Trump's hide simply by ruling that Colorado could not disqualify him. Meanwhile, the three dissenting-in-all-but-name justices argued that the per curiam decided more than was necessary and that it did so because the Trump Five wanted "to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President."</p><p>My question here is whether the Court's hyper-conservative supermajority will do something similar in other cases. After all, this gang has been flouting precedent and grabbing power with increasing shamelessness for years. Will they soon become so brazen as to use future cases as mere vehicles to say anything that they want -- taking, say, a case about a book ban and then ruling that the Constitution requires that America be a Christian nation -- or will they "only" do so when they have an outcome in mind with a tenuous connection to the case that they truly want to achieve (which would, admittedly, probably include that book banning case)?</p><p>Recall that the <i>Dobbs</i> majority was guilty of similar overreach, with a different group of five Republican appointees deciding not to limit their ruling to the question at hand -- whether a ban on abortion at 15 weeks was unconstitutional. If they had any restraint, they could have held that the ban was acceptable on some narrow ground (perhaps citing some inconclusive evidence about advances in neonatal care pushing up the date of fetal viability). Instead, they shouted that <i>Roe</i> itself was super-duper-blasphemously wrong. No judicial minimalists they.<br /></p><p>And that brings me to my unusual connection to a pending case, <i>US v. Moore</i>. That is a tax case that I have recently analyzed twice <a href="https://www.dorfonlaw.org/2023/12/will-supreme-courts-conservative-super.html" target="_blank">here</a> <a href="https://www.dorfonlaw.org/2024/02/this-is-kind-of-precedent-that-courts.html" target="_blank">on</a> <i>Dorf on Law</i>, arguing that the Republicans on the Court seem eager to bring back a terrible <i>Lochner</i>-era case to declare that rich people are Constitutionally protected against taxation of their "unrealized" income. The question is whether this Republican-installed majority will go far beyond the income question and possibly reach the extreme point of holding that taxing all wealth and income is unconstitutional.<br /></p><p>As a reminder, gains in the value of one's assets are income, such that if I hold a piece of property (land, stocks, crypto, whatever) and it goes up in value from $5 to $500 (not likely with crypto, but stay with me), I have received income in the sense that I am $495 richer, just as I would be if I had received a $495 bonus at work. Increases in the value of assets must be income, both as a definitional matter and as an anti-abuse rule, because treating such gains as anything other than income (and thus nontaxable) would encourage everyone who can do so -- read: rich people -- to take their incomes in that form rather than in cash. (We know this because Congress for the past century has unwisely created just such a loophole. It did so, however, not because it was constitutionally required but because Congress often lavishes benefits on the rich. In case you hadn't noticed.)</p><p>Increases in asset values are definitionally income, so what is the issue in <i>Moore</i>? The Court is supposed to decide whether Congress can tax as income any gains that have not yet been (and might never be) "realized," that is, turned into cash or exchanged for other assets. If I sit on my $495 gain, I have not realized it. But it is income, and the Sixteenth Amendment allows Congress to tax all incomes from whatever source derived, so is the gain not obviously taxable as income? It appears from oral argument that Gorsuch will use the case to say that it is not income unless and until it is realized.</p><p>Would that be bad? Yes, but not too, <i>too</i> bad. Again, we already live in a ridiculous world in which Congress has shielded rich people from paying taxes on most unrealized gains, so this would not change the big picture. Even so, there are some unrealized gains that are currently taxable (including exit taxes on rich people who try to flee the US for tax or other reasons), and all of those would be gone.</p><p>The question presented in <i>Moore</i> is whether a tax on unrealized income "is a 'tax[] on incomes ... within<br />the meaning of the Sixteenth Amendment," which ScotusBlog reworded as "[w]hether the 16th Amendment authorizes Congress to tax unrealized sums without apportionment among the states." Again, if the Republicans-in-robes rule the wrong way but stick to this question, the immediate damage would be relatively small. There could be longer-term damage, however, if the US continues as a constitutional democracy and a future Democratic-majority Congress tries to repeal or pare back the realization requirement.</p><p>As I noted earlier, the right-wing jurists on the Court might limit their overreach to cases about which they truly care. Do they care enough to use <i>Moore</i> as a vehicle for an expansive ruling? I think so, and although I might be wrong about that, it is worth thinking about what they might do if they want to push the envelope.<br /><br />In an excellent <i>New York Times</i> <a href="https://www.nytimes.com/2023/12/10/opinion/supreme-court-wealthy-taxes.html">op-ed</a> published shortly after oral argument in Moore, Joey Fishkin and Willy Forbath described the possibly much higher stakes in the case:<br /></p><blockquote>An activist lower court judge, most likely inspired by right-wing constitutional scholars and think tanks, cleverly framed Moore as a grand occasion to rule against some future wealth tax, and the high court took it up.<br /><br />Supporters of the Moore litigation probably hope to persuade conservatives on the court to issue a broad ruling that would declare unconstitutional any attempt to enact a tax on wealth (like proposals that Senator Elizabeth Warren of Massachusetts and others have floated).</blockquote><p></p><p>But how could any court issue a decision in <i>Moore</i> that has anything to do with taxing wealth? Again, the question in the case is whether unrealized income is income. (Weird, right?) Well, Gorsuch et al. could point out that the change in the value of assets is sometimes called "a change in wealth," and although taxing a change in wealth is not at all a tax on wealth itself, these guys might decide to say that it is. They could then say that taxes on wealth are unconstitutional (even though they are not), so taxes on changes in wealth would also not allowed.<br /></p><p>Fishkin and Forbath agreed that this Court might go there: "It would not be a shock if some justices are tempted to go big and declare Congress powerless under the Constitution to tax the wealthiest Americans." They added: "Even if the court chooses to resolve Moore on narrow grounds, it may still use the occasion to signal ... that a future wealth tax would be struck down."</p><p>Note that doing so would be even more damaging than it seems, because if the holding is that Congress cannot tax changes in wealth, then that would even eliminate the current distinction between realized and unrealized gains, making <i>all</i> taxes on gains exempt from taxation. I could sell my $500 piece of property and say that the $495 cannot be taxed. Why? Because wealth. And that would mean that anyone who can change the form of their income from salaries into appreciating assets could be subject neither to income taxation nor wealth taxation.</p><p>Will this Mitch McConnell-created majority on the Court go there? What would stop them? They overreached in Trump's Colorado case when it was not even necessary to do so. Would their billionaire benefactors be displeased if they were now to pass up this golden opportunity to leave their gold untaxed? Why would they risk finding out? There are too many luxury trips yet to be had. Friends take care of friends.<br /></p><p></p>Neil H. Buchananhttp://www.blogger.com/profile/17577335934943074615noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-15719657241081689412023-12-08T12:55:00.016-05:002024-03-08T13:43:02.519-05:00Will the Supreme Court's Conservative Super-Majority Make their Patrons Untaxable?<p>Earlier this week, the Supreme Court heard <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-800_097c.pdf" target="_blank">oral argument in a case, <i>Moore v. US</i></a>, that has the potential to effectively immunize the wealthiest Americans from taxation. The anti-tax arguments in that case are tendentious, ahistorical, constitutionally and economically illiterate, and profoundly regressive. They therefore have a very good chance of winning in front of the six Republican appointees on this Court.</p><p>This Supreme Court majority barely even bothers to make a public show of preventing themselves from engaging in the most nakedly self-dealing behavior. Indeed, Professor Dorf <a href="https://www.dorfonlaw.org/2023/11/the-status-of-scotus-code-of-conduct.html" target="_blank">pointed out</a> a few weeks ago that while the just-released Code of Conduct deserved the scorn that accompanied its release, the Court's unusual description of its new code makes it even "<i>less </i>official than it otherwise might have been."<br /></p><p>And to be clear, that is what this group of six felt free to do after months of front-page scandals had brought the Court into unprecedented levels of disrepute. If they cannot be roused to make a better show of something so high profile, what in the world would stop them from doing exactly what their political movement's financial backers want now? Over the last several years, there have been rumblings about imposing a modest wealth tax on the richest people in the country. Why bother winning in the political arena when the people who are beholden to you for their exalted positions can simply assert that the very idea of taxing you is unconstitutional?</p><p>I should state up front that this is not going to be a typical review of a Supreme Court argument. I am not a "Court watcher," which means that I cannot competently read the tea leaves in the way that others can. And given that the overall mantra from people who write about such things is that oral arguments are highly unreliable guides to how the Court might rule, that suggests that even the most savvy and experienced observers are mostly left to make educated guesses based on deliberately opaque evidence. </p><p>I thus did not read any of the commentary in the major papers or the blogs after the argument. And even if Court watchers had a higher success rate in predicting outcomes, I would not want to allow others' analysis to bias my own, much as I sequester myself before writing about candidates' <a href="https://www.dorfonlaw.org/2016/10/no-more-debates-ever.html" target="_blank"><i>faux</i>-debates</a>. Here, however, rather than focusing on the lawyers' performances in front of the Court, I will refer to the oral argument only inasmuch as doing so cuts to the substance of the legal issues underlying the case.</p><p>What possible basis could there be to say that the Constitution prohibits taxing rich people? In <i>Moore</i>, the issue is not in fact about taxing wealth, a la Senator Elizabeth Warren's "2-cent" tax on wealth accumulations in excess of $50 million (and 6 cents on everything above $1 billion). The issue in the case is "[w]hether the 16th Amendment authorizes Congress to tax unrealized sums without apportionment among the states."</p><p>Huh? Interested readers can dive into some of the details in two of my many prior columns about this issue (one <a href="https://verdict.justia.com/2021/10/28/the-proposed-tax-on-billionaires-income-is-most-assuredly-constitutional-unless-the-supreme-court-simply-makes-stuff-up" target="_blank"><i>on Verdict</i></a>, the other <a href="https://www.dorfonlaw.org/2021/11/closing-loop-on-anti-government-dogma.html" target="_blank">here on <i>Dorf on Law</i></a>, both from late 2021), but the basic story is that the 16th Amendment was passed after the <i>Lochner</i> Court decided that income taxes were "direct" taxes, which the original Constitution says must be apportioned among the states. I cannot improve on Professor Vikram Amar's <a href="https://verdict.justia.com/2023/10/26/originalist-reasons-the-tax-in-moore-v-united-states-is-constitutional" target="_blank"><i>Verdict</i> column</a> explaining the meaning of direct and indirect taxes, but the point of the <a href="https://constitution.congress.gov/constitution/amendment-16/" target="_blank">16th Amendment</a> was to say that even though the Court was wrong in deeming the income tax to be a direct tax, the income tax would henceforth no longer be subject to its misguided holding. That Amendment reads: "The Congress shall have power to lay and collect taxes on incomes, from
whatever source derived, without apportionment among the several States,
and without regard to any census or enumeration."</p><p>Therefore, the only way to make a tax subject to the direct/indirect analysis, and thus to possible apportionment, is to claim that the tax is not a tax on incomes. To be clear, that does not in any way mean that a tax on something other than incomes is <i>per se</i> unconstitutional. Even a non-income tax must first be deemed a direct tax, and even then Congress could keep the tax so long as it met the requirements for apportionment. Because apportionment in taxation is administratively burdensome (and, to be blunt, stupid), however, Congress would prefer to be able to avoid the entire mess.</p><p>Again, however, the issue in <i>Moore</i> is whether Congress can tax "unrealized sums" while sidestepping the direct/indirect and apportionment analysis. Notice the word "sums," which is as a way to present the issue neutrally, even though every tax expert in the world already refers to such "sums" as <i>income</i>. That is, income is sometimes realized and sometimes unrealized, but either way, it is still income. This case, then, attempts to completely upend the long-accepted, textually coherent, and economically required definition of income.</p><p>SCOTUSblog <a href="https://www.scotusblog.com/2023/06/the-constitutionality-of-wealth-taxes-plus-educational-benefits-for-veterans/" target="_blank">describes</a> the fact pattern:</p><blockquote><p>In the 2017 Tax Cuts and Jobs Act, Congress enacted a one-time
“mandatory repatriation tax” in an effort to obtain tax revenue from
large earnings that corporations held abroad. The MRT classifies a
U.S.-taxpayer-controlled foreign corporation’s “accumulated post-1986
deferred foreign income” as part of the corporation’s taxable income
during 2017. And under the MRT, U.S. shareholders owning 10% or more of
such a foreign corporation could be required to pay a one-time tax due
to their obligation to “include in [their 2017] gross income” their “pro
rata share” of the CFC’s relevant “income for such year.” Essentially,
the tax requires 10% shareholders to pay a tax on their share of the
corporation’s retained earnings even though that money has not been
distributed to them.</p></blockquote><p>The key is the last eight words -- "that money has not been distributed to them" -- that is, that it has not been "realized" in the sense that the taxpayers have cash in hand. There are all kinds of unrealized gains that are not subject to the income tax -- some capital gains, gains on the sale of a home, and so on -- but the nontaxation of those forms of income is due to Congress's ill-fated decision to embed a realization requirement in the statute. It is not a constitutional requirement, which we know because there are various forms of unrealized income that have been taxed for decades -- the most salient to me being the "<a href="https://www.expatriationattorneys.com/expatriation-market-to-market-regime-the-basics/" target="_blank">exit tax</a>" for US citizens, who must pay taxes on unrealized gains under statutorily specified conditions.</p><p>Being the savvy operators that they are, the groups who are trying to use <i>Moore</i> as a camel's nose under the tent found a sympathetic lead plaintiff (the Moores being part owners of a "corporation formed to supply affordable equipment to small farmers in poor regions of India"), but the key background fact about this case is that the conservative movement wants to make it impossible not only to tax wealth but to tax income that has not been cashed out. And because of the <a href="https://smartasset.com/investing/buy-borrow-die-how-the-rich-avoid-taxes" target="_blank">infamous</a> "buy, borrow, die" strategy, people with the means to derive their income from owning assets rather than from wages or salaries can effectively make sure that their incomes are never taxed. To be sure, that is mostly already happening (which is a big reason why income inequality in the US has skyrocketed in recent decades), but the result of <i>Moore</i> could prevent any future Congress from changing its mind and enacting a more progressive (or at least less regressive) tax system.<br /></p><p>Readers might recall the recent low comedy in the US Senate, when Bernie Sanders had to scold his Republican colleague from Oklahoma for trying to start a physical fight with the President of the Teamsters. The bad blood there had begun at a hearing of that committee <a href="https://www.dorfonlaw.org/2023/03/macho-blowhards-and-certain-political.html" target="_blank">earlier this year</a>, when the Senator claimed to have earned a salary of only $50,000 from his plumbing business before becoming a Senator. The head Teamster <a href="https://www.salon.com/2023/03/08/you-hid-money-teamsters-calls-out-millionaire-senator-to-his-face-during-heated-hearing_partner/" target="_blank">correctly observed</a> that the now-Senator "hid money," that is, that the Senator paid himself a low salary <a href="https://www.businessinsider.com/senator-markwayne-mullin-misleading-income-argument-union-president-2023-3" target="_blank">for tax and other purposes</a> and then enriched himself by keeping the money in the company that he owned. He could have paid himself, say, $2,050,000 of realized income, but instead he realized $50,000 in cash and then increased the net worth of his closely-held company by two million dollars, the latter of which is not taxed until realized -- that is, never (again, because of buy/borrow/die).</p><p>There is apparently an argument out there that "gains" are not necessarily income, but what are gains? The reason tax experts refer to unrealized <i>gains</i> and unrealized <i>income</i> interchangeably is that the gains are measured as the change in the value of underlying assets, which is the definition of income. If, for example, I own $100,000 in common stocks that rise in value over the course of a year to $125,000, I have gained $25,000, and that is definitionally income. Even people who took only one tax course in their lives -- and probably disliked it -- might remember "Haig-Simons income," which formalizes this identity. Income is defined as the fair-market value of consumption in a year plus or minus the change in the value of all assets owned during the year. That latter gain or loss is income (positive or negative), whether realized or not.</p><p>How do the petitioners get around that? By invoking a later<i> Lochner</i>-era case, <i><a href="https://supreme.justia.com/cases/federal/us/252/189/" target="_blank">Eisner v. Macomber</a></i>, and then mischaracterizing it. In the fourth and fifth sentences of his opening statement, the petitioners' lawyer claimed that "a gain is not income unless and until it has been realized by the taxpayer. The Court squarely held as much in <i>Eisner versus Macomber</i> just a few years following adoption of the [16th] amendment, and the Court's decisions have held that line for a century."</p><p>That is simply wrong, but before I get there, one must note that those two sentences were preceded by this: "Appreciation in the value of a home, a stock investment, or other property is not and never has been taxed as income." That is (mostly) true, but not because of <i>Macomber</i>. Rather, Congress enacted -- at its option -- a realization requirement for most (but not all) income. The <i>Macomber</i> Court did in fact hold that realization was constitutionally required, but the Court's decisions have not at all "held that line" since then.</p><p>If what the petitioner is saying were true, this case would have been trivial. Instead, as <a href="https://casetext.com/case/moore-v-united-states-2125#:~:text=the%20Supreme%20Court%20has%20made%20clear%20that%20realization%20of%20income%20is%20not%20a%20constitutional%20requirement." target="_blank">the Ninth Circuit's decision below</a> pointed out: "[T]he Supreme Court has made clear that realization of income is not a constitutional requirement," citing <i><a href="https://supreme.justia.com/cases/federal/us/311/112/" target="_blank">Helvering v. Horst</a></i> (1940), which was decided 20 years after <i>Macomber</i>, with this devastating (for the petitioners) quote: "[T]he rule that income is not taxable until realized .... [is] founded on administrative convenience," not on the Constitution.</p><p>At oral argument, the Solicitor General (Elizabeth Prelogar) brought up <i>Horst</i> as well as the even more devastating Court decision from the same year, <i><a href="https://supreme.justia.com/cases/federal/us/309/461/" target="_blank">Helvering v. Bruun</a></i>. There, the Court narrowed <i>Macomber</i> to its bare facts, not formally overruling the earlier case but simply saying that the receipt of a "stock dividend" in that case was not income at all -- that is, that the taxpayer's wealth had not increased, meaning that the receipt of the stock dividend did not even give her any income to realize.</p><p>Undaunted, Justice Gorsuch opined that "it seems to me at least as I read [<i>Horst</i>, <i>Bruun</i>, and other cases] that they're all trying to work within <i>Macomber</i>'s framework." Yes, that is true, but not in a way that matters. For reasons that no one understands, the Courts that rejected <i>Macomber</i> did so without explicitly overruling it, choosing instead to say that it did not stand for what that Court's majority had claimed in 1920. And as I predicted in a January 2019 <a href="https://www.dorfonlaw.org/2019/01/how-bad-will-things-become-part-nine.html" target="_blank">column</a>, that presents an opportunity for mischief, which Gorsuch (almost certainly not standing alone) was more than willing to engage in.</p><p>When Prelogar pointed out that the government's argument was essentially an argument in the alternative -- you can call what happened to the Moores a realization event, or you can say that no such event is necessary -- Gorsuch responded: "[Y]ou say no, it doesn't require realization, and now today you're saying maybe it requires realization but not to the taxpayer. The one argument that I'm missing is that there was realization here to the taxpayer. That's just not even in the briefs."</p><p>Prelogar pushed back on that, and if that is the issue, then people like me who are worried about a decision that would turn the world upside down might be able to calm down. Recall that the issue is "[w]hether the 16th Amendment authorizes Congress to tax unrealized sums without apportionment among the states." If the Court holds that there was realization for the Moores, the case can be decided without ever implicating the constitutional viability of the realization doctrine. There is every reason to think, however, that Gorsuch and his colleagues want to say that the government did not argue the narrower, dispositive issue, clearing the way for them to say that <i>Macomber</i> means that all unrealized income is not income at all under the 16th Amendment.</p><p>How radical would that be? In one of the leading tax law casebooks, the editors try to explain <i>Macomber</i>'s "notoriety," describing the decision's "much-maligned definition" of income and referring to "the general rejection of the constitutional principle" in the case. The casebook also includes a few paragraphs from a 1938 essay by Henry Simons (of Haig-Simons fame), who argued that gain rather than realization "is the true sine qua non" of "the existence of income." The 16th Amendment removes the apportionment requirement from any statute that taxes income, even if income were (incorrectly) deemed to be a direct tax. Unrealized gains are unrealized income, and unrealized income is income.</p><p>But in Gorsuch's words, he would be required to undermine the very notion of income taxation "if I'm not willing
to overturn a hundred years' worth of precedent." Right.
Fifty-year-old precedents are fair game, I guess, when they are <a href="https://www.dorfonlaw.org/2022/07/egregiously-egregious-dobbs-inspired.html" target="_blank">wrongly described as "egregiously wrong."</a> He is suddenly a big believer in <i>stare decisis</i>, however, when a 1920 mess of a case that has been abandoned, mocked, and discredited becomes useful for his movement's regressive policy agenda.<br /></p><p>Do I wish that the Court in 1940 had been more aggressive in rejecting <i>Macomber</i>'s ridiculous reasoning? Sure. However, I argued in that January 2019 column that even if <i>Macomber</i> had never been decided or had been explicitly overruled, that would not stop this Court from making it up out of whole cloth. And it appears that Gorsuch and the five other beneficiaries of the largesse of the super-wealthy are eagerly looking for an excuse to say that income can be permanently exempted from taxation so long as it is received in a form that most of the rest of us never receive. Taxation will quite possibly become an obligation only for working stiffs. I imagine that the party on Harlan Crow's super-yacht (<a href="https://www.propublica.org/article/harlan-crow-slashed-tax-bill-clarence-thomas-superyacht" target="_blank">itself a tax dodge</a>) will be a rager.<br /></p>Neil H. Buchananhttp://www.blogger.com/profile/17577335934943074615noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-53139249127501451662024-03-06T06:49:00.000-05:002024-03-06T06:49:16.663-05:00A Partially Annotated Version of SCOTUS's Section 3 Case <p>On Monday, the Supreme Court surprised only the most optimistic of folks and <a href="https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf" target="_blank">reversed</a> the Colorado Supreme Court's decision disqualifying Donald J. Trump from the 2024 Colorado Presidential Primary. Most of us knew there was no chance the Court would affirm, and some of us thought pretty strongly that they would reverse based on some form of "states can't do this on their own theory." The Court held states can disqualify insurrectionists from state office but not federal office, at least absent authorizing legislation from Congress. Below is a partially (very partially) annotated version of the opinion.</p><p>First, the Court quoted Section 3 in its entirety, so here it is (hopefully for the last time in my lifetime):</p><p></p><blockquote>No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.</blockquote><p></p><p><span style="font-family: inherit;">The first thing one might observe is that there is not a single word in Section 3 suggesting states are not allowed to disqualify from federal office folks who engaged in an insurrection. So much for text.</span></p><p><span style="font-family: inherit;">The Court describes the 14th Amendment as follows:</span></p><p><span style="font-family: inherit;"><span style="font-family: inherit;"></span></span></p><blockquote><span style="font-family: inherit;"><span style="font-family: inherit;">Proposed by Congress in 1866 and ratified by the States
in 1868, the Fourteenth Amendment “expanded federal
power at the expense of state autonomy” and thus “fundamentally altered the balance of state and federal power
struck by the Constitution.” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 59 (1996).</span></span></blockquote><p></p><p><span style="font-family: inherit;"><span style="font-family: inherit;">Well, federal courts scholars know that in many doctrinal areas, such as abstention and Section 1983 law, the Court has often interpreted the 14th Amendment as if it had almost no effect on the relationship between and state and federal power. But that's an essay for another day. </span></span></p><p><span style="font-family: inherit;"><span style="font-family: inherit;">The case the Court cites for that proposition about state and federal power is a case where the Court interpreted the phrase "another state" in the 11th Amendment to mean the "same state," so that under that Amendment, citizens of a state can't sue their own state, which flatly contradicts the text. The case also dramatically limited Congress's powers to hold states liable for violations of federal law. <i>Seminole Tribe</i> is a very odd case to cite for the proposition that the 14th Amendment changed the balance of power towards the federal government and away from the states. <i>Seminole Tribe </i>did exactly the opposite.</span></span></p><p><span style="font-family: inherit;"><span style="font-family: inherit;">The Court relied to a great degree on Section 5 of the 14th Amendment which gives Congress the power to enforce that amendment through "appropriate legislation." The justices said the following:</span></span></p><p><span style="font-family: inherit;"></span></p><blockquote>Congress’s Section 5 power is critical when it comes to
Section 3.... We conclude
that States may disqualify persons holding or attempting
to hold state office. But States have no power under the
Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.</blockquote><p></p><p></p><p><span style="font-family: inherit;">First, what legal work does the word "especially" do in that quote? Feel free to let me know on X/Twitter if you have an answer. </span></p><p><span style="font-family: inherit;">It should be noted that very few historians advocated this "states can't enforce Section 3" approach, and the Court's picking and choosing of a few sources from 150 years ago simply does not justify the conclusion. But that's no surprise, since the Court's historical analyses are almost always absurd attempts to show one side of history supports the sought-after result without much analysis, if any, of opposing sources, and all that is true here. So much for originalism.</span></p><p><span style="font-family: inherit;">The Court went on to say the following:</span></p><p><span style="font-family: inherit;"></span></p><blockquote>Because federal officers owe their existence and functions to the united voice
of the whole, not of a portion of the people, powers over
their election and qualifications must be specifically “delegated to, rather than reserved by, the States....” U.S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 803–804 (1995).</blockquote><p></p><blockquote><p></p></blockquote><p><span style="font-family: inherit;">The case cited for this rule involved Arkansas placing term limits on members of Congress, and the Court rejecting that approach as unconstitutional. It must be noted, however, that the beacon of consistent judicial review, Justice Clarence Thomas, bitterly dissented in <i>Term Limits </i>and argued that, absent a specific rule modifying the default, the states may always act unless the federal Constitution takes their power away directly. </span></p><p><span style="font-family: inherit;">Well, no part of Section 3 or any other constitutional provision takes power away from the states to disqualify people under Section 3. No matter, for Justice Thomas every day is a new day but some cluster of words from him explaining his inconsistent votes would have been helpful (no other member of the current Court was part of the term limits case). For Thomas, at least, so much for precedent. </span></p><p><span style="font-family: inherit;">The Court went on:</span></p><p><span style="font-family: inherit;"></span></p><blockquote>The respondents...maintain that States may
enforce Section 3 against candidates for federal office. But
the text of the Fourteenth Amendment, on its face, does not
affirmatively delegate such a power to the States. The
terms of the Amendment speak only to enforcement by Congress, which enjoys power to enforce the Amendment
through legislation pursuant to Section 5.</blockquote><p></p><p><span style="font-family: inherit;">Go back and read the text of Section 3. Does it say anything about who can enforce it? It says Congress by a 2/3 vote can repeal a disqualification but there's not a syllable about who is supposed to enforce it. Section 1 of the 14th Amendment, which prohibits states from denying any person due process, equal protection, or the privileges or immunities of the United States, unequivocally does not require Congress to enact legislation under Section 5 before its provisions are enforceable in court. So why would Section 3 require such legislation? Here is the Court's response:</span></p><p><span style="font-family: inherit;"></span></p><blockquote>Under the Amendment, States cannot abridge privileges or immunities, deprive persons of
life, liberty, or property without due process, deny equal
protection, or deny male inhabitants the right to vote (without thereby suffering reduced representation in the House). On the other hand, the Fourteenth
Amendment grants new power to Congress to enforce the provisions of the Amendment against the States. It would
be incongruous to read this particular Amendment as
granting the States the power—silently no less—to disqualify a candidate for federal office.</blockquote><p></p><p><span style="font-family: inherit;">Why would that be incongruous? The 14th Amendment lays out new rules for what the states cannot do and a new rule about who is disqualified from holding another office. Nowhere does it say that only the feds can enforce the "no insurrection after taking an oath," rule and obviously the states have enormously strong interests in not sending insurrectionists to work for the National Government.</span></p><p><span style="font-family: inherit;">There are numerous practical problems with fifty states reaching different conclusions about who is and who is not an insurrectionist but the Roberts Court has famously <a href="https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf" target="_blank">talked</a> the talk of text and history being the only, or at least dominant, sources of constitutional meaning. Here, policy clearly Trumped text and history. Of course.</span></p><p><span style="font-family: inherit;">The Roberts Court in previous cases seemed to say tradition was important to constitutional interpretation, so here's the opinion's paen to tradition:</span></p><p><span style="font-family: inherit;"></span></p><blockquote>Nor have the respondents identified any tradition of state
enforcement of Section 3 against federal officeholders or
candidates in the years following ratification of the Fourteenth Amendment. Such a lack of historical precedent is
generally a telling indication of a severe constitutional
problem with the asserted power. And it is an especially telling sign here, because as noted, States did disqualify persons from holding
state offices following ratification of the Fourteenth Amendment. That pattern of disqualification with respect to state,
but not federal offices provides persuasive evidence of a
general understanding that the States lacked enforcement
power with respect to the latter.</blockquote><p></p><p><span style="font-family: inherit;">Well, maybe, but was any Southern State in the immediate post-Civil War era really going to disqualify a bunch of former confederates from federal office? I think we can all agree that would be extremely unlikely. How about the Northern States? Well, really, how many Confederate officers were there in Northern States after the War who were seeking federal office and who had taken an oath to uphold the Constitution, and who Congress had not already disqualified? In any event, the Court does recognize that there is a case where a state (a Southern one) did actually disqualify someone under Section 3:</span></p><p><span style="font-family: inherit;"></span></p><blockquote>In 1868, the Governor of Georgia refused to
commission John Christy, who had won the most votes in a congressional
election, because—in the Governor’s view—Section 3 made Christy ineligible to serve. But the Governor’s determination was not final; a committee of the House reviewed Christy’s qualifications itself and recommended that he not be seated. The full House never acted on the matter,
and Christy was never seated.</blockquote><p></p><p><span style="font-family: inherit;">This attempt to distinguish the <i>Christy</i> case is, of course, unpersuasive as a state did disqualify someone seeking federal office and the fact that a congressional committee of the House agreed does not constitute formal action by Congress under Section 3. Although the full House can judge the qualifications of its members, a committee of the House cannot. Thus, the committee's recommendation had absolutely no legal effect, but the state disqualification did. </span></p><p>Towards the end of the opinion, the Court suggests that there may be some limitations on Congress's powers under Section 3 derived from previous cases holding that, to act under Section 5, Congress must pass a law that has “congruence and proportionality” towards the evil sought to be remedied. As the concurrence in the judgment by the three liberal justices argued, there was no reason to mention this issue and it is classic dicta, since Congress's power was not at issue in this case.</p><p>I hope we never have to find out what "congruence and proportionality" means in the context of Section 3, given that we have no idea what it means when it comes to federal laws seeking to enforce Section 1 of the 14th Amendment. In any event, the issue of when Congress can disqualify anyone should not have been any part of this case. So much for just deciding what needs to be decided and nothing more.</p><p>Justice Barrett decided to take this opportunity to criticize the other three women on the Court (all of whom agreed with the result) because they had the temerity to suggest the Court went too far in its opinion (which is a fair criticism by the three liberals as discussed above). Barrett responded:</p><p></p><blockquote>The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond. In my
judgment, this is not the time to amplify disagreement with
stridency. The Court has settled a politically charged issue
in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should
turn the national temperature down, not up. For present
purposes, our differences are far less important than our
unanimity: All nine Justices agree on the outcome of this
case. That is the message Americans should take home. </blockquote><p></p><p>In addition to being wildly condescending, this request for uniformity and civility is a bit off putting, given that Barrett has voted on numerous occasions to dramatically change well-developed and reasonably settled areas of constitutional law in quite a controversial fashion. It appears, as Mike <a href="https://www.dorfonlaw.org/2024/03/nine-justices-in-search-of-excuse-to.html" target="_blank">said</a> so well, that the best explanation for this hollow civics lesson is that she didn't like "women disagreeing with men." </p><p>My final thoughts are that the Court came to the right conclusion for mostly the right reasons, none of which follow persuasively from text or history, but that is true in almost every constitutional law case the Court is called upon to resolve. I think it would be a terrible idea for fifty states to have the authority to disqualify federal officials for being insurrectionists and my prediction was a Court disqualification of Trump would have led to serious violence and possibly a coup attempt. I think America dodged this bullet. Now it is up to us, the people (not judges) to save our democracy, which actually has been true all along the way.</p><p></p>Eric Segallhttp://www.blogger.com/profile/08823293006574144651noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-63708692704868587772024-03-05T07:00:00.042-05:002024-03-05T07:15:46.276-05:00Nine Justices in Search of an Excuse to Nullify Section 3 of the 14th Amendment<p>I was not surprised by the outcome or even the unanimity of the result in <i><a href="https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf" target="_blank">Trump v. Anderson</a></i>. I was surprised by the per curiam opinion's failure even to address some seemingly obvious objections to the arguments the Court offered to justify its decision. Indeed, some of the objections that went unaddressed were not merely <i>seemingly</i> obvious; they were articulated expressly in the concurrence in the judgment by Justices Sotomayor, Kagan, and Jackson (hereafter SKJ). And while I thought that SKJ did well in their critique of the per curiam, their own affirmative views are no less problematic than those of the per curiam.</p><p>1) The primary reason the Court gives for its conclusion that the Colorado Supreme Court erred is the claim that Section 3 of the 14th Amendment is not self-executing--at least not with respect to eligibility for federal (as opposed to state) office. Here's the crucial passage in the per curiam:</p><p></p><blockquote>The Constitution empowers Congress to prescribe how [Section 3 disqualification] determinations should be made. The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “enforce” the Fourteenth Amendment.</blockquote><p></p><p>But why? Section 1 of the 14th Amendment <i>is </i>self-executing. No legislation by Congress is required to entitle persons otherwise properly in state or federal court to object that the application of state law or policy to them violates "due process" or "equal protection." Those terms are no more determinate than "insurrection or rebellion," so if the Supreme Court can give definitive content to due process and equal protection even absent implementing legislation under Section 5--as numerous cases hold--there is no good reason why the Court could not have, in this very case, defined insurrection or rebellion with as much specificity as needed.</p><p>Moreover, the text of Section 3 strongly implies a special reason why it in particular is self-executing. As SKJ point out, by authorizing Congress to lift the bar on insurrectionists by a 2/3 vote, Section 3 implies that the default is automatic disqualification. In a passage I read about a dozen times before giving up and assuming that the per curiam author is simply trolling readers, the Court actually says that the assignment to Congress of an "amnesty power" via a 2/3 vote somehow "reinforces" its (erroneous) conclusion that Section 3 is not self-executing.</p><p>2) Although the per curiam does not expressly address the problem just noted, it gestures towards a distinction between Sections 1 and 3 of the 14th Amendment. To enforce Section 1 absent Congressional legislation, courts impose limits on the states--which is broadly consistent with the core purpose of the 14th Amendment, but for a state to enforce Section 3 against "federal office holders and candidates," the per curiam says (and on this point SKJ appear to agree), "would invert the Fourteenth Amendment’s rebalancing of federal and state power."</p><p>But that's true only if one takes a narrow view of the 14th Amendment's aims. The citizenship clause of the 14th Amendment overruled <i>Dred Scott</i>. The due process, equal protection, and privileges & immunities clauses overturned the Black Codes. Section 2 aimed to prevent the states of the former Confederacy from obtaining a representation benefit without enfranchising the freedmen. Section 3 prevented those who sought to destroy American constitutional democracy from seizing its reins. Section 4 ensured that upon returning to Congress, delegations from those states would not question debts accumulated for the Union to prosecute the Civil War. Section 5 empowered the Reconstruction Congress to give each of those provisions real effect should the courts not do so. Seen in this larger perspective, the 14th Amendment did rebalance federal and state power, but it did so for the deeper purpose of preventing the defeated rebels or others who would follow in their footsteps from repeating sins of the past.</p><p>Seen in that broader perspective, there is nothing at all anomalous about state enforcement of Section 3 against federal office holders or candidates. Where those people are insurrectionists, one might better conclude that <i>failure </i>to enforce Section 3 betrays the 14th Amendment's core purposes.</p><p>3) Although I agree with much of the SKJ substantive critique of the per curiam, they're arguably wrong that the majority's discussion of Congressional primacy is gratuitous dicta. Although the per curiam is hardly clear on this matter, it could be read to say that there is a lack of judicially discoverable and manageable standards regarding how one proves that someone is ineligible to hold federal office as an insurrectionist. In this view, the Colorado Supreme Court erred by deciding a political question that is nonjusticiable because committed to Congress. Although I believe the Court was wrong in that conclusion, if that was indeed its conclusion, then making the point was not dicta because justiciability is jurisdictional and thus a threshold question. I hesitate to criticize SKJ on this ground, however, because the per curiam nowhere expressly states (or even implies) that its consideration of the necessary conditions for federal invocation of Section 3 is part of a threshold determination of justiciability.</p><p>4) I am less reluctant to criticize SKJ on a more fundamental ground, however. They agree with the majority that states cannot enforce Section 3 at the ballot eligibility phase. How, then, do they think that Section 3 can be enforced (albeit without Congressional action under Section 5)?</p><p>One possibility would be ballot eligibility lawsuits in <i>federal </i>court. A plaintiff with standing--say, President Biden in the general election--would sue election officials in each of the 50 states plus D.C., arguing that former President Trump should be kept off the ballot in each of those jurisdictions. But that could yield the very "chaotic state-by-state patchwork" that, according to SKJ agreeing with the per curiam on this point, justifies denying state courts the power to use Section 3 to disqualify a candidate from the ballot. And any mechanism available for avoiding or resolving the chaos arising out of conflicting federal district court judgments--such as a defendant class action of election officials in all states or Supreme Court review--is also available with respect to state court judgments. Thus, if SKJ were upset with the majority for ruling out federal district court determinations of Section 3 ineligibility, they should not have voted to reverse the Colorado Supreme Court at all.</p><p>So maybe SKJ have in mind some different posture for adjudication of Section 3 eligibility. Maybe they think that when Congress convenes on January 6, 2025, it should be able to reject Electoral College votes for an insurrectionist candidate without first enacting legislation setting forth procedures by which a court makes a finding of ineligibility. Or maybe they want to preserve the possibility of disqualification lawsuits in just one federal court <i>after </i>the election. But these options would make the stakes confronting courts even higher. In any event, SKJ don't mention either of these alternatives.</p><p>SKJ do describe one specific alternative means of enforcing Section 3 that they think the per curiam unnecessarily eliminates. They complain that the per curiam "forecloses judicial enforcement of [Section 3], such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score."</p><p>What does that mean? As I read SKJ, they want to leave open the following possibility: Say Trump is elected and, with Senate advice and consent, appoints John Eastman Attorney General. Then suppose a federal criminal prosecution for some serious crime, interstate kidnapping, say. I believe SKJ are saying the defendant ought to be able to avoid criminal liability on the ground that DOJ is headed by an insurrectionist. And if that kind of argument works, it would also be open to anyone facing criminal or civil liability under a statute that a second-term Trump signs into law to argue that the law is invalid because Trump, as an insurrectionist, wasn't <i>really </i>President. Just about all agency action would be void too, because agency heads appointed by an insurrectionist President weren't <i>really </i>appointed and thus lacked any power to take any official action.</p><p>Yet this sort of after-the-fact invalidation of the acts of insurrectionists would be way more disruptive and chaotic than an ex ante determination by state courts and state election officials--reviewable by SCOTUS to provide uniformity--that Trump either is or is not ineligible for the Presidency in virtue of Section 3. The chaos that SKJ seemingly invite is worse than the chaos they say their decision to join the majority in the bottom line avoids.</p><p style="text-align: center;">* * *</p><p>In her own separate partial concurrence, Justice Barrett accuses the other female Justices of "stridency," apparently for no other reason than that they're women disagreeing with men. Despite the insult, Justice Barrett tries to play peacemaker. The Justices' "differences are far less important," she says, "than [their] unanimity."</p><p>She's right about that but not in the way she means. The Colorado Supreme Court was reversed because a majority of its members had the courage to follow the law. Not so, SCOTUS. Both the per curiam and SKJ offer unpersuasive grounds for leaving to other actors a task that they know those other actors almost certainly will not undertake--namely, to heed the warning from, and follow the path laid down by, our farsighted forebears during Reconstruction.</p>Michael C. Dorfhttp://www.blogger.com/profile/02021009233932690926noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-53163726036162972392024-03-04T07:00:00.002-05:002024-03-04T08:04:35.620-05:00A Memorial Homage to Steven Wise<p>Steven Wise recently died. He was a pioneering animal rights activist--through his books, his teaching at Harvard, and his activism--as the first president of the Animal Legal Defense Fund and then as the founder of the <a href="https://www.nonhumanrights.org" target="_blank">Nonhuman Rights Project (NhRP)</a>. Readers unfamiliar with Steve's life and work could do worse than to read <a href="https://www.nytimes.com/2024/02/22/us/steven-wise-dead.html" target="_blank">the fine obituary</a> that appeared in the <i>New York Times</i>.</p><p>I didn't know Steve well, although I know a lot of people in the movement who did, and I always respected and admired him. To honor his legacy, here I want to recap two ways in which I disagreed with his legal strategy. As I'll explain, over time I came to think that on one of these points, Steve was right and I was wrong. The jury is still out on the second point, but I think it's at least possible that there too, his approach will prove to be more productive than I had previously imagined.</p><p>To begin, my disagreements with Steve were only ever about strategy, not goals. The <i>Times </i>obit says that Steve "became a vegetarian and stopped wearing leather." That's a bit misleading. Steve in fact became a vegan and thus (insofar as is possible in a developed country without moving completely off the grid) stopped using all animal products. He was committed in both his personal life and in his activism to ending human exploitation of sentient nonhuman animals.</p><p>Despite the caricature of animal rights activists as a collection of disheveled terrorists, most of us find perfectly conventional means of working to end animal exploitation. We open vegan restaurants or create plant-based alternatives to animal-based foods. We make documentary films, write books and essays, and speak out at conferences and on social media. We hand out flyers. And then there's the activism of the NhRP under Steve's leadership, which consisted in no small part in filing lawsuits on behalf of captive <a href="https://www.nonhumanrights.org/our-clients/" target="_blank">chimpanzees and elephants</a>--listed as the petitioners themselves in habeas corpus actions.</p><p>I agreed with Steve and the NhRP that the clients they sought to free deserved to be freed, but I was initially skeptical of litigation as a means of achieving that end. As I wrote in <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2218465" target="_blank">a 2002 essay</a> in the <i>California Law Review</i>, rights advance through the courts "only when the ground has been prepared by social and political movements." I worried that the NhRP lawsuits were doomed to fail because even though we animal rights proponents had been working assiduously for years, there still was not sufficient receptivity among the broader public or legal elites. Thus, <a href="https://www.dorfonlaw.org/2011/11/peta-orcas-rights-and-persons.html" target="_blank">in 2011, I lamented</a> a lawsuit that PETA brought against SeaWorld alleging that the latter's holding orcas captive to entertain park-goers was enslavement in violation of the Thirteenth Amendment. Although I shared PETA's normative goals, I worried that the lawsuit would "likely offend millions of people and bring ridicule upon the causes PETA claims to champion."</p><p>Steve also disapproved of the PETA lawsuit but mostly because he thought his arguments under the common law of habeas corpus were much better than the constitutional argument advanced by PETA. To my mind, that did not go to the heart of the problem--which was that a legal system staffed by people eating animal products three times per day would not be receptive to <i>any </i>claim that nonhuman animals deserve rights. Accordingly, I was almost as skeptical of Steve's litigation strategy as I was of PETA's.</p><p>I now recognize that Steve was right and I was wrong--or at least that I was thinking too narrowly about the goals of litigation. I was right in my predictive judgment that PETA's lawsuit and the lawsuits brought thus far by the NhRP would fail to obtain the release of the client animals. After all, they did fail. But I was wrong in thinking that failure to obtain relief from a court meant failure, full stop.</p><p>Through some productive research and writing collaborations with my Government Department colleague Sidney Tarrow, I eventually became familiar with the substantial body of literature that understands at least some litigation as <i>a form </i>of social and political movement activism. Lawsuits--even lawsuits that lose--need not depend on other social movement actors preparing the ground for them to succeed. The lawsuits themselves help to shift public opinion and build a movement. I have little doubt that the NhRP litigation strategy has worked in this way to raise public awareness and opposition to at least some of the injustice of what humans do to nonhuman animals.</p><p>So that's how I came to see where Steve was right and I was wrong. But I also disagreed with him on another point. The <i>NY Times </i>obituary and the NhRP website identify the animals on whose behalf NhRP litigates. They are the "genius" animals: great apes; elephants; cetaceans (dolphins and whales); and parrots. (The <i>Times </i>obit also refers to honeybees, although I'm not aware of any campaigns by NhRP for honeybees.) In its filings in court, the NhRP papers emphasize the intellectual capacities of these animals that make them <i>just like us</i>. For example, the NhRP website says "it is morally and legally wrong to deprive self-aware, autonomous nonhuman animals of their liberty."</p><p>I don't disagree with that statement. But I have long worried that it carries a negative implication--that, conversely, it is morally (and should be legally) permissible to deprive other sentient animals of their liberty if they lack the super-intelligence NhRP equates with self-awareness and autonomy.</p><p>It is notable that the animals slaughtered by humans by the billions--cows, pigs, chickens, and even greater numbers of fish--are not represented by NhRP. Many of those animals in fact are self-aware (as measured, for example, by <a href="https://phys.org/news/2023-02-bluestreak-cleaner-wrasse-mirror.html" target="_blank">the mirror test</a>) and would be autonomous if they were not denied their autonomy, but these characteristics should not be prerequisites for basic rights. As Jeremy Bentham long ago remarked: "The question is not, Can they reason?, nor Can they talk? but, Can they suffer?."</p><p>Meanwhile, by representing charismatic genius animals who are deemed honorary humans, NhRP's legal strategy seemed designed to give judges leery of outlawing animal agriculture an off-ramp. Here's how I put the worry in <a href="https://www.dorfonlaw.org/2014/05/a-fever-dream-about-words-deeds-race.html" target="_blank">an essay in 2014</a>:</p><p></p><blockquote>the NhRP court filings . . . emphasize human-like characteristics of chimpanzees such as "autobiographical self, episodic memory, self-determination, self-consciousness, self-knowing, self-agency, referential and intentional communication, language planning, mental time travel, numerosity, sequential learning, meditational learning, mental state modeling, visual perspective-taking . . . symbolic culture, cross-modal perception, tool-use, tool-making, [and understanding] cause-and-effect." To be sure, the NhRP filings are careful to argue that these characteristics are <i>sufficient</i> to confer legal personhood on chimps, rather than <i>necessary</i>, but in emphasizing the fact that chimps are almost human, the case essentially asks the court to redraw the legal line between persons and things somewhat more generously, but in a place that still leaves sentient beings like cows, chickens, and rats on the "thing" side of the line. I know that Wise et al hope that the proposed expansion of the person category is only a first step that will eventually lead to a greater expansion, but it is also possible that his approach could end up reinforcing a line between the sentient beings who count and those who don't.</blockquote><p></p><p>As I said above, the jury is out on whether lawsuits on behalf of chimps, elephants, and orcas end up moving the line towards sentience or merely create a firmer distinction between humans and nearly all other animals. However, I want to conclude by offering a reason to hope that the one-step-at-a-time dynamic will prevail and the NhRP litigation strategy will end up working for all sentient animals.</p><p>My suggestion is that the claim that only a few genius animals are self-aware and autonomous could come to be seen as a flimsy rationalization. I make that suggestion based on my own decade-long journey from omnivore (up until 1996) to vegan (not until 2006).</p><p>First I gave up eating mammals, then birds, then fish, then dairy and eggs, and then (again insofar as practicable without becoming a hermit) all animal products for other purposes as well. At each step along that path I adopted some self-serving rationalization that was inconsistent with the actual facts.</p><p>I have seen others do the same thing. For example, someone I know claimed they wouldn't eat any animal "with an attentive mother" although they never articulated why this criterion had moral force. Another person said they wouldn't eat any animal "with a face," which somehow allowed them to eat <a href="https://www.craiyon.com/image/eyj6br8ITd6tJMpfhowNcQ" target="_blank">fish</a> and, like the attentive-mother line, made no sense as a moral principle. Eventually, they each became vegans.</p><p>To be sure, not everyone who rationalizes eventually comes to see their rationalizations for what they are. Some people who won't go to SeaWorld or patronize zoos that hold captive elephants still eat what they always ate. And people can be stubborn in holding on to their circular rationalizations. People who sincerely claim to be animal lovers--and who genuinely love their dogs and cats--will respond to the question of what makes a dog morally different from a pig by saying that a pig "is a food animal," as though that were a reason rather than a restatement of the problem.</p><p>So there is no guarantee that NhRP's consciousness-raising litigation around genius animals will succeed even for its clients, much less that it will cause a cascade of change for the billions of other animals humans exploit and kill. But there's at least a possibility that it could. And for that I'm grateful for Steven Wise's tireless and creative activism.</p><p>-----------</p><p><i>Postscript</i>: My most recent <a href="https://verdict.justia.com/2024/02/27/of-embryos-elections-and-elephants-are-rights-always-zero-sum" target="_blank"><i>Verdict </i>column</a> uses the Alabama Supreme Court decision in the IVF case as an occasion to ask whether rights are always zero sum (given that rights for embryos erode rights for prospective parents seeking to use IVF to launch a pregnancy). In the course of that column, I discuss NhRP's litigation on behalf of Happy the elephant as an instance of win-win rights. Given all of the ways in which human exploitation of nonhuman animals ends up harming humans, I say that "rights for elephants and other animals would necessarily restrict the freedom of humans, but they would enhance human wellbeing." I would add here that despite my earlier worries about the NhRP, I was very pleased that I played some role (an <a href="https://www.nonhumanrights.org/wp-content/uploads/Tribe.-Colb-Dorf-brief.pdf" target="_blank">amicus brief</a> in the New York Court of Appeals on behalf of Laurence Tribe, Sherry Colb, and me) in supporting Steve's litigation on behalf of Happy.</p>Michael C. Dorfhttp://www.blogger.com/profile/02021009233932690926noreply@blogger.comtag:blogger.com,1999:blog-36951752.post-82714962519723973472024-03-01T10:05:00.004-05:002024-03-01T10:06:19.936-05:00How Trump's Theocrats Can Punish Everyone They Hate<p>Perhaps the people who are most excited about a second, permanent Trump presidency/theocracy are the ones who will use it to ruin the lives of the people they hate. There has been remarkably little alarm in response to the Trumpists' plan to put millions of people in militarized internment camps (with the goal, supposedly, of deporting them), but that is what <i>The New York Times</i> <a href="https://www.nytimes.com/2023/11/11/us/politics/trump-2025-immigration-agenda.html" target="_blank">reported</a> this past November. And we can be certain that Trump's promise to his cultists to be "your vengeance" will include turning the criminal justice system into the weapon that he falsely claims it to be now, jailing the various "crooks, thugs," blah blah blah that he rambles about in his nonstop airing of grievances.</p><p>From the standpoint of Trump's political shock troops, however, this strategy presents a problem. Jailing people, even on a wholesale level along the lines of the shameful internment of American citizens of Japanese descent during World War II, is frankly expensive. I suppose that the plan would also be to set up "prison industries" to exploit the slave labor (which is exempted from the Thirteenth Amendment's prohibition on slavery and involuntary servitude, not that legality will matter in that future dystopia), but even that has its limitations.</p><p>Besides, the people that the Trumpists hate include everyone except the Trumpists themselves (at least until they start turning on each other). Everyone who is in any way deemed "woke" -- which can be anyone, given that that word has <a href="https://verdict.justia.com/2023/03/16/rhymes-with-joke-a-word-that-already-meant-nothing-now-means-even-less" target="_blank">no meaning</a> and thus can mean anything -- is a target. I have no doubt that the architects of Trump's worst plans dream at night about being able to imprison (or kill) every last person who ever spoke positively about diversity or who chooses not to physically threaten LGBTQ+ people, but that is a lot of enemies. How to enact group punishment on that scale?</p><p>Short answer: Take away their money. That is, ruin them. We shall see how smart those late night comedians are when their million-dollar contracts go away, right? But what about the fact that those enemies of the state are already rich? The idea would be not merely to take away their sources of money in the future but to make them broke right now. And that, it turns out, would be surprisingly easy. Disturbingly, shockingly easy.</p><p>The <a href="https://www.hbo.com/last-week-tonight-with-john-oliver/season-11/2-february-25-2024" target="_blank">most recent episode</a> of John Oliver's show exposed a modern international scam operation that goes by the unlovely name "pig butchering." As a vegan (which is only one of the things that would put me on the list of the hated "woke," but I digress), I was pleasantly surprised when Oliver responded to his audience's revulsion at that imagery by pointing out that they are surely perfectly fine with the butchering of billions of real pigs. In any case, that term is being used to describe scam operations that work through the unsolicited text messages that show up on our phones with messages like, "Hi Mom, did you change your phone number? I'm trying to reach you." This leads to elaborate financial scams in which the targets are fooled into putting their money into fake investments, only to quickly learn that their "deposits" cannot be withdrawn.</p><p>Perhaps the most surprising aspect of Oliver's story was that the crime syndicates that run these operations use slave labor to carry out these very personalized online courtships. That is, this is not some dude finding some grandmother to fleece and then keeping the money for himself. The victims are on both sides of the text exchange, and the money goes to the capitalists in this ugly capital-labor-customer relationship.</p><p>For present purposes, however, I want to focus not on who ultimately gains but on how the scam works logistically. Oliver showed clips of victims who are far from the stereotypical trusting senior citizens of our imagination. One person said that she was so vigilant that she not only did her own due diligence but even hired a lawyer to check whether the investment was legitimate. On-app banking makes it especially easy to mock up interfaces that look absolutely real, and even extremely careful investigation cannot expose the lies before the damage is done.</p><p>Many people do not understand that "their money" is ephemeral, that the pixels on a screen showing the latest balances on their savings accounts could change without warning, or that money itself is a social contrivance that can be manipulated -- in the case of Oliver's scammers, not by formal government expropriation but by organized crime syndicates. The fundamental fact about finance (and this applies to all finance at all times in history, not just the internet-era) is that it is an act of trust. We try to earn more money than we need for current needs so that we can build up funds to buy things later. But if the money vanishes, what can we do?</p><p>The short answer is that we turn to the government. The scam in Oliver's story works because of gaps in government powers between countries, but when we invest in US assets (which can include simply putting our money in a savings account), we assume without even taking a moment to think about it that there would surely be a way to get our money back if, say, Bank of America suddenly told us that our deposit balance was zero.</p><p>What if the government refuses to help? Worse, what happens if the government itself made the balance go to zero? I am not talking about taxes but using the powers of the government to change what people own. With that in mind, what will happen when Trump's theocrats are the ones who can wield those powers to go after the heretics?</p><p>A <a href="https://www.nytimes.com/2024/02/29/opinion/project-2025-trump-administration.html" target="_blank">column</a> in today's <i>Times</i> by Carlos Lozada carries this sub-headline: "The former president's allies don't want to destroy the 'deep state.' They want to seize it." He describes a new document from one of the leading far-right organizations that is openly touting its plans to create an American theocracy. He notes at one point:<br /></p><blockquote><p>In the final chapter, a former Trump administration Justice Department
official admits that “until there is a return to a constitutional
structure that the founding fathers would have recognized and a massive
shrinking of the administrative state, conservatives cannot unilaterally
disarm and fail to use the power of government to further a
conservative agenda.” <br /></p></blockquote><p>To be sure, the larger story that the Trumpists are telling is the same old stuff about getting the government off our backs, with the stated ultimate goal of "push[ing] Congress to return to its constitutional responsibility, restore
power over Washington to the American people, [and] bring the administrative
state to heel," but that very sentence begins with this: "But in the meantime, there are many executive tools a
courageous conservative president can use to handcuff the bureaucracy."</p><p>Lozada identifies only part of what is worrisome about this: "The problem with
wielding the administrative state as a tool, even against itself, is
that it grows comfortable in your hands. Why loosen that grip? In
Washington, 'the meantime' can last a long time." The problem, however, is not "Washington," and it is not only that the power can be used for a long time and would never be relinquished. We are not talking about a future in which inside-the-Beltway types slowly accumulate power. Again, this is a theocratic takeover.</p><p>In 2022, I wrote a <a href="https://verdict.justia.com/2022/05/04/is-the-handmaids-tale-a-pre-documentary-the-surprisingly-interesting-and-scary-financial-side-of-the-story" target="_blank">two</a>-<a href="https://verdict.justia.com/2022/05/05/is-the-handmaids-tale-a-pre-documentary-what-an-autocracy-theocratic-or-otherwise-looks-like" target="_blank">part</a> column for <i>Verdict</i> in which I invoked "The Handmaid's Tale." There, I did not focus on misogyny and the other scary-because-they're-so-believable parts of Margaret Atwood's cautionary story. Instead, I pointed out that the flashbacks to the time when Gilead was first being established included a scene in which two financially independent women discover that their credit cards have been canceled, their investments and bank accounts seized, and that they had been ruined by unseen forces. They soon learned that only men -- only <i>certain </i>men<i> -- </i>could own property, including financial assets.</p><p>If a theocracy is established in the US and Trump is listening to someone who says that he should "use the power of government to further a
conservative agenda," that could involve not "handcuffing the bureaucracy" but unleashing its full power on the enemies of the state. All insufficiently Trumpy Americans could be ruined without ever coming in contact with the government, even a civil proceeding. Buy crypto? Good luck with that. Gold? Get serious. Transactions would need to be legal, so other than a dangerous and unreliable underground economy, nothing would work.<br /></p><p>Money is there until it is not there, and if the people who are supposed to protect us become the self-righteous thieves, there will be nothing that anyone can do. Are the stakes clear enough yet?<br /></p>Neil H. Buchananhttp://www.blogger.com/profile/17577335934943074615noreply@blogger.com