Showing posts from June, 2012

Media Absurdity, the ACA Decision, and Society's Need for a Strong Press

-- Posted by Neil H. Buchanan About two weeks ago, I was contacted by a broadcast network, asking if I would be willing to be interviewed after the Supreme Court ruled on the ACA. I asked about the format, and they said that it would either be a panel discussion (which, they assured me after I asked insistently, would most definitely not be one of those absurd shows where people yell at each other) or simply an interview by a reporter. I told them that I would be happy to do so, under either format. Earlier this week, the producer called me to set things up for yesterday's big announcement. She told me that they would want me to be interviewed on the steps of the Supreme Court at 9, 10, and 11am. I told them that the 10am slot would be odd, because the decision could be released in the middle of the interview. They told me that the interview would proceed as planned, even if the decision came out at exactly 10am. I suddenly flashed on a memory from December 2000, when I was w

Fear of a Vegetarian State -- and Other Reflections on the Obamacare Decision

By Mike Dorf I spent the better part of today reading the Supreme Court's ACA ruling and talking to the press about it.    Consequently, I had very little time to attend the sessions at the conference I happen to be attending:  Vegetarian Summerfest , an annual vegan gathering that includes programs discussing the various reasons for adopting a vegan lifestyle.  These are chiefly: reducing harm to animals; mitigating environmental damage; and health benefits.  Given the much-ballyhooed prominence of the "broccoli question" in the Obamacare case, I was not entirely surprised to see that each of the three main opinions discussed the consumption of vegetables, but I did nonetheless sit up when I read the following passage in the portion of the opinion of CJ Roberts in which he concludes that the individual mandate does not fall within the Commerce Clause (with citations omitted): [M]any  Americans do not eat a balanced diet. That group makes  up a larger percentage of

Obamacare Upheld Thanks to CJ Roberts: I'm Back to Thirty Percent

By Mike Dorf When I was a law clerk for Justice Kennedy during the 1991-92 Term, I witnessed a substantial number of very fine oral arguments.  During that time, no advocate shone brighter than John Roberts, then at the Solicitor General's office.  He was particularly strong in an ideologically charged case involving the question whether laws restricting abortion were laws that discriminated against women.  Why?  Because he managed to make an argument for a very conservative result (favored by the Bush I Administration) in non-ideological terms.  Roberts impressed me as extremely smart and not an ideologue.  When President Bush II nominated him to the Court I was pleased.  I knew Roberts was not a liberal by any stretch of the imagination, but I expected him to be a thoughtful conservative. Others who knew Roberts better than I did were less certain.  My then-colleague Tom Merrill had worked with Roberts in government and recalled that the one thing one could say for certain ab

The Outcome of the ACA Litigation

 . . . is not yet known, as of the time this post goes up.  But it will be known soon--and I'll post something on the case just as soon as I've read it, which, depending on the length of the various opinions, could be as late as mid-afternoon.   For those of you looking for a prediction, I say "ha!"  On SCOTUSblog , Tom Goldstein says "In the end, you have to make a prediction and take responsibility for it."  No you don't.  You can say (as Tom, to his credit, also says) "how the hell should I know?"  Ever since I confidently predicted that the Supreme Court would deny cert in Bush v. Gore , I've kept mum.  I will be happy to predict the outcome of the case after I've read the opinions! by Mike Dorf

What's Wrong With "Artificially" Enhancing Performance?

By Sherry Colb In my Verdict column for this week, I examine the reported proliferation of drug use among high school students aiming to boost their academic performance.  By using medications like Ritalin and Adderall, students who do not technically suffer from Attention Deficit Hyperactivity Disorder (ADHD) (for which such drugs are prescribed) can -- like people with ADHD -- increase their ability to concentrate hard and learn efficiently.  Stimulants like these (and others) can enhance what psychologists call "executive function," including the brain's ability to self-regulate.  In my column, I discuss some of the risks  associated with the drug, including addiction and the related phenomenon in which many users of the drug find that it no longer enhances their abilities but has instead become necessary to maintain what had been their pre-drug-use baseline. In this post, I want to focus on a different complaint that people have about the use of artificial means

SCOTUS Adopts a Tacit Presumption in Favor of Preemption in Immigration Cases

By Mike Dorf I have been telling people for over a year that the  Arizona immigration case    is not about the Constitution per se, but about federal preemption.  With the possible exception of Justice Scalia (about whom more, momentarily) no one doubts that Congress--if it so chose--could either permit or forbid states to do what Arizona has done here.  The question is what Congress did, not what Congress has the power to do. But there is another sense in which the case was always about the Constitution: Faced with silence or an ambiguous statement from Congress, does the primacy of the federal government in immigration matters place a thumb on the scale in favor of preemption?  Relatedly, is there a dormant immigration doctrine?  In the Crosby case in 2000, the Court did not reach the question of whether there is a dormant foreign affairs doctrine, and today's decision likewise does not reach the dormant immigration question. However, the opening statements in Justice Ken

Twenty-Twenty Hindsight on the ACA From The New York Times, Before the Supreme Court Rules

-- Posted by Neil H. Buchanan Sometime this week, the Supreme Court will issue its long-awaited ruling on the constitutionality of the Patient Protection and Affordable Care Act (the ACA). With so much written about the legal challenge to the law, The New York Times has decided to "go meta," publishing articles that combine reporting with strong whiffs of editorial comment. Some of the articles have been interesting and informative (e.g., their explanation of where the broccoli analogy came from). Others have been interesting in a pathological way. In the latter category, yesterday's Sunday edition carried as its top front-page headline: " Supporters Slow to Grasp Health Law’s Legal Risks ." The basic premise of the article seems to be (and I do mean "seems to be," because the article hedges so much) that the Obama team put themselves in unnecessary peril by failing to take seriously the idea that the health care law might be found unconstitution

Again With Social Security?!

-- Posted by Neil H. Buchanan In my latest Verdict column , I return to one of my favorite topics, explaining (once again) why Social Security should simply not be on the agenda for "reform" in Washington. "Again with Social Security, Professor Buchanan?!" readers might well ask. Which was exactly my reaction, when I saw recently that the Obama people have been talking again about including Social Security cuts in a so-called Grand Bargain with House Republicans. We are back to this again? Really?! Admittedly, anything that the President or his spokesmen say about Social Security at this point might be nothing more than an effort to put the Republicans in a bad light, emphasizing once again Obama's preferred pose as the centrist compromiser, a man who could solve oh-so-many of our problems, if only the obstructionist Republicans would come to the table, willing to act like adults and compromise on some of their cherished positions. I thought that Obama had

Constitutions: Living, Dead and Undead

By Mike Dorf The June 2012 issue of the Harvard Law Review includes a review I wrote of two books: Jack Balkin's Living Originalism  and David Strauss's The Living Constitution .  In my review-- titled The Undead Constitution --I praise both books, which is not to say that I entirely agree with either.  Here I'll briefly summarize the books and my review, although I would recommend that interested readers check out all three for much more detail and nuance. 1) Both Balkin and Strauss critique what is sometimes called "expectation originalism," i.e., the notion that the contemporary meaning of a constitutional provision is found in the concrete expectations of the framers and ratifiers of the provision.  Thus, if the framers and ratifiers of the Fourteenth Amendment expected that its equal protection clause would invalidate most official racial classifications but few or no sex-based classifications, then expectation originalism would reject modern sex discrim

Stable Democracy

By Mike Dorf My new  Verdict column uses the developing story in Egypt as an opportunity to make a few points about the potentially different roles that constitutional courts play in new democracies versus established democracies.  It concludes with a deliberately provocative comparison between last week's decisions by the Supreme Constitutional Court of Egypt and our own Supreme Court's decisions in Bush v. Gore and Citizens United v. FEC .   I do not say--because I do not believe--that the SCOTUS is as much a holdover of the Presidential administrations that appointed the respective justices as the the Supreme Constitutional Court of Egypt is a holdover of the Mubarak regime.  Nonetheless, there are at least some similarities. Still, the column distinguishes between mature democracies and emerging democracies.  Although I think this is a reasonably clear distinction in many cases, I should clarify that it is a difference of degree rather than kind.  Moreover, by &quo

Who Are the Approvers?

By Mike Dorf I have an Op-Ed in the NY Daily News in which I argue that the people who have been lamenting the NY Times/CBS Poll about the Supreme Court's supposed unpopularity are missing the real story: The good news is that people have a realistic picture of the Court and they seem to accept that, on the whole, having judges subject to human emotions is useful. The piece expands on some of the themes I raised in a blog post last week. Here I want to gripe a tiny bit about the standard polling question that asks respondents whether they "approve or disapprove" of the way some institution (e.g., Congress, the SCOTUS) or person (e.g., the President) is handling its or his job.  It's remarkable to me that in answer to this kind of question many people answer yes.  Maybe I'm just negative (though I don't think so as a matter of temperament) but if asked this question about Congress, the Supreme Court and the President my answers will be no, no and no.  Of

Report Card Day

By Lisa McElroy It’s the middle of June, and our law students have received their grades. That means we’ve received ours, too – in the form of student evaluations, that is. As a kid, I always looked forward to report card day.  It was my day to shine, my day to show the world that I was worthwhile, a day in stark contrast to Field Day (I couldn’t catch a ball for my life) or Camp Fire Girl pow wow day (ditto on starting a fire) or haircut day (while the other girls had smooth, shiny manes, my own was a frizzy mop).  It was a day when, even in my dysfunctional family of origin, I could legitimately claim my parents’ approval. As for most of us who would eventually choose to enter the academy, throughout my academic career, report card day – or grade-posting-on-the-bulletin-board day, the law school version (I graduated from law school still clueless about the existence of the interwebs) – continued to be a day when I could take pride in myself and my abilities.  And when I start

It's a medium-size state university and yet there are those who love it

By Mike Dorf Channeling Daniel Webster, my friends and former colleagues Allan Stein and Bob Williams have a nice piece explaining why NJ Governor Chris Cristie's plan to reorganize the state university system without obtaining consent from the Rutgers boards of Trustees and Governors would violate the Contracts Clause.

The (Somewhat) Hidden Costs of Home Ownership

-- Posted by Neil H. Buchanan As regular readers of Dorf on Law know, I have been doing quite a bit of thinking over the last few years about the owning-versus-renting question, in terms of personal residences. (Actually, that question is equally applicable to vacation homes, automobiles, and so on, where the details are different in each case. My strong -- though rebuttable -- presumption in every case is NOT to own.) Having reluctantly come around to an odd sort of pro-ownership position -- both as a policy matter (where I have recently concluded, in essence, that we as a society should encourage home ownership for all or for none, and it is impossible to see how to eliminate the many encouragements to own), and as a personal matter (having bought a house of my own in April) -- this seems like a good time to think about what we must do to make meaningful apples-to-apples comparisons between owning and renting primary residences. One can think in the abstract about these issues,

British Austerity, National Sovereignty, and International Unions

-- Posted by Neil H. Buchanan As recently as a few years ago, I could not have predicted that I would become so keenly interested in -- and even somewhat knowledgeable about -- the domestic politics and economic policies of our friends across the Atlantic. My recent writings on the continuing economic crisis and its aftermath in the United States, however, all but require me to think about the UK and Europe as well. First, they are good laboratories, offering additional evidence about the effects of various policy choices. Second, their fate is almost certainly our fate (and President Obama's political fate, too). I was, therefore, intrigued by an op-ed in today's New York Times, " This Separate Isle ," written by a Conservative member of the British Parliament, John Redwood. I found the essay fascinating, for a number of reasons. Indeed, as I will explain below, Mr. Redwood offers some insights into European power politics that raise important questions of f