Showing posts from April, 2017

How Damaging is Clinton v Jones to Trump's Defense Against Various Lawsuits?

by Michael Dorf ( cross-posted on Take Care ) Thirty-five years ago, in Nixon v. Fitzgerald , the Supreme Court held that the president has absolute immunity against civil damages litigation for acts undertaken in his official capacity.   Twenty years ago, the Supreme Court rejected Bill Clinton's argument that a sitting president should enjoy temporary immunity from all civil lawsuits while he is president, including lawsuits seeking to recover for pre-presidential acts. Refusing to extend Fitzgerald in this way, the Court rejected Clinton's argument in Clinton v. Jones . The justices reasoned that answering such˙a lawsuit would not unduly distract the president from his official duties. Clinton v. Jones  looks like a potentially very damaging precedent for President Trump and his lawyers as they battle the various civil cases pending against him. How can the president respond?

Saturation Coverage of Non-News About Tax Policy

By Neil H. Buchanan [Note: The tenth and twenty-first paragraphs below have been updated to correct an error on my part regarding the lowest tax rate in Trump's non-plan.] During the 2016 election campaign, Donald Trump hit a low point with the press when he announced that he would make a "major statement" about the birther controversy, supposedly to tell the world at long last that he had been wrong to say for years that Barack Obama was not a natural-born U.S. citizen. In fact , Trump used the occasion to lead a meandering media event that he turned into an infomercial for his new hotel in Washington, D.C.  Finally, after jerking around the assembled press for what seemed like an eternity, Trump quickly said that Obama was born here and that the birther controversy was Hillary Clinton's fault all along.  He then left the room. I take this trip down memory lane because that cynical manipulation of the press was supposed to have been a defining moment, the day

Wrongful Birth Suits: What's In a Name?

by Sherry F. Colb In my Verdict column for this week , I discuss the legislation currently pending in Texas to abolish the cause of action for wrongful birth.  A wrongful birth suit is one in which the plaintiff claims that had the defendant done what he was supposed to do (e.g., a doctor notifying a pregnant patient that her fetus shows signs of severe abnormalities), the plaintiff would have terminated her pregnancy and the child would accordingly never have been born.  The plaintiff, if successful, can recover expenses occasioned by the birth of the child whom she would not have had in the absence of the defendant's wrongful conduct (or wrongful omissions).  In my column I discuss the implications of wrongful birth suits, both for issues surrounding abortion and for the symbolic meaning of such suits for people living in the world today who suffer from severe disabilities (of the sort for which the plaintiffs in such suits would have terminated their pregnancies). In this p

Trump Is -- Gasp! -- Being Dishonest About the National Debt

by Neil H. Buchanan It has always been clear that Republicans are situational deficit hawks.  They are perfectly happy to run up huge amounts of debt when their men occupy the White House, and even to leave spending for their wars off of the official accounts.  When a Democrat becomes president, however, suddenly those Republican opportunists claim to be terrified of debt. It was not surprising, then, that Donald Trump ran on an especially aggressive version of debt obsession, claiming that there was a "magic number" of "24 trillion ... 23 ... 24," one of which he claimed is "the number at which we become a large-scale version of Greece." The most obvious reaction at the time was to point out that Trump's promises regarding military spending and huuuuge tax cuts (those tax cuts alone adding roughly a trillion dollars per year to the debt) would make it impossible to pay down the national debt, which Trump also promised to do.  But as a candidat

Hate Speech Is Free Speech, But Maybe It Shouldn't Be

by Michael Dorf ( cross-posted on Take Care ) A student group at UC Berkeley invited Ann Coulter to speak. The event was cancelled due to ostensible security concerns in circumstances that led most reasonable observers (including me) to conclude that a substantial part of the reason Coulter was uninvited was the unpopularity of her views. There followed a round of condemnation of Berkeley and the presumably liberal "snowflake" millennial students who can't handle speech that spreads messages they find offensive, with the condemnation coming not only from the right but also from people who strongly disagree with Coulter (e.g., Coulter's fellow Cornell alum Bill Maher ). Enter Howard Dean, who defended Berkeley's rescission of its invitation on the ground that "hate speech is not protected by the first amendment." Numerous commentators correctly pointed out that under existing case law hate speech is protected by the First Amendment, with a  Volokh C

Is It Even Possible to Be Too Hard on Supply-Siders?

by Neil H. Buchanan The Republican leadership uniformly despised Donald Trump during last year's primaries, fiercely opposing him before finally meekly submitting to his misrule.  Throughout this tragicomedy, however, Trump and his party have always agreed on one thing: the magical effects of tax cuts for rich people. No matter what concerns Republicans might have had about Trump's anti-trade shouting, or his proud ignorance of foreign affairs, or his very un-Republican track record on social issues -- a record that has not prevented Trump from now supporting the worst excesses of his party's culture wars -- Trump was as solid as a rock on regressive tax cuts and heedless slashing of safety and environmental regulations. Trump is, in short, every bit as much of a believer in supply-side economics as every other eager Republican has been for the past generation or so.  This is why his decision to turn the page from his growing list of abysmal failures by trying to enac

Trump, Syria, Tienanmen, and the Downside of Civilian Control of the Military

by Michael Dorf In my latest Verdict column , I weigh in on the debate over whether President Trump's April 7 cruise missile strike against a Syrian airbase violated domestic constitutional law and/or international law. Here is the nutshell version: 1) Trump needed but did not receive congressional authorization as a matter of domestic constitutional law, although in that respect his action conforms to a longstanding pattern (in which Congress has acquiesced) of accretion of war-initiating power in the White House; and 2) the action violated the UN Charter because it was not plausibly justified as individual or collective self-defense of states nor authorized by the Security Council, notwithstanding arguments by some scholars (most prominently Harold Koh) who say that humanitarian interventions are legal even absent Security Council authorization. The sorts of arguments made by Koh and other interventionists are contestable on their own terms and could ultimately undermine intern

Competitor Plaintiffs in Emoluments Clause Case Bolster Standing

By Michael Dorf ( cross-posted  on Take Care ) Almost immediately after President Trump's inauguration, Citizens for Responsibility and Ethics in Washington ("CREW") filed a lawsuit against him alleging multiple violations of the Emoluments Clause occasioned by Trump's continuing to profit from his opaque business empire. The complaint alleged that CREW has standing because, as a government ethics watchdog agency, it would incur very substantial additional costs monitoring and otherwise responding to Trump's activities. Some commentators objected that such costs ought not to suffice as an "injury" sufficient to confer standing under the Constitution's Article III because, they said, if it did, then any self-appointed do-gooder could manufacture standing simply by asserting an interest in monitoring and responding to alleged wrongdoing. These commentators typically cited Clapper v. Amnesty Int'l USA for the proposition that CREW suffered f

Democrats Score Another Strategic Victory on Trump's Tax Returns

by Neil H. Buchanan The annual deadline for filing taxes is guaranteed to bring out plenty of discussion of tax reform, and with a new president in office, the buzz is inevitably going to be even louder.  Unfortunately, that new president is Donald Trump, so this year's political discussion about taxes has become both deafening and stupefying.

To Fix the Confirmation Process We Need to Face the Truth About SCOTUS

By Eric Segall As the dust settles over the bitterly partisan confirmation battles over Judge Garland and Justice Gorsuch, there is a large consensus that the Supreme Court is a damaged if not broken institution. Liberal commentators have been speculating , for the first time in 85 years, about the possibility of a Court packing plan the next time the Democrats hold both the Congress and the Presidency. The Editorial Board of the New York Times recently worried that the politics surrounding who nominates and confirms future Justices could “shake the court system and American jurisprudence to its core.” Even Chief Justice John Roberts lamented this week that that it will be “very difficult … for a member of the public to look at what goes on in confirmation hearings these days …and not think that the person who comes out of that process must …share that partisan view of public issues and public life.” In light of Justice Gorsuch’s refusal to answer any meaningful questions at his

The Gang That Can't Shoot Straight Takes Aim at the Tax Code

by Neil H. Buchanan One of the recurrent questions of the Trump era has been whether there is any difference between the president and the rest of the Republican Party.  It is not just a matter of noting the many ways in which the national party establishment, which uniformly reviled Donald Trump during last year's primaries, so quickly and embarrassingly fell into line, although that is certainly a story in itself. The bigger question has been whether the Trump Administration's conspicuous incompetence is merely a result of the White House team's inexperience or is instead evidence of something deeper.  It is becoming clearer every day that the Keystone Kops-like ineptitude that we are seeing in the era of Republican dominance is caused by ideological commitments and political rigidities across the Republican terrain. There is, of course, a certain comfort in all of this.  As John Dean put it recently : "The [Trump Administration's] incompetence is the only

Advice to Conscientious Originalists: Rebrand

by Michael Dorf My post on Tuesday on the stakes of the originalism debate sparked very thoughtful responses by two of the leading "new" originalists: Georgetown Law Professors Larry Solum and Randy Barnett. In a Postscript I added to update my original post, I was happy to accept fully one of Prof. Solum's points (about the use of the term "semantic originalism") and to clarify how much of the level-of-generality argument I meant to endorse. Meanwhile, Prof. Barnett zeroed in on a claim I made in both Tuesday's post and at greater length in my 2012 Harvard Law Review essay The Undead Constitution : that scholars who in good faith pursue public meaning originalism thereby provide aid and succor to judges, public officials, and pundits who misuse their work in defense of original-intentions-and-expecations originalism or worse, ideological originalism. Well so what? Why, Prof. Barnett asks, should the fact that some actors promote bad originalism preven

United Airlines' Own Contract Denied it any Right to Remove Passenger

by Jens David Ohlin On Sunday, United Airlines passenger David Dao was forcibly removed from his United Airlines flight when he refused to relinquish his seat. The police officers who removed him from the seat then dragged him down the aisle of the airplane. Videos of the incident show a visibly injured and bloodied Dao screaming. Videos also show a clearly injured Dao returning to the plane, walking up and down the aisle, and muttering that he needed to get home. He was then escorted off the plane a second time. The incident has caused a PR nightmare for United Airlines. Videos of the incident have reinforced the public perception that airlines care too much about their profit margins and too little about their passengers. The initial public comments from the airline exacerbated the PR crisis by insufficiently recognizing the depth of the public’s anger over the issue. Instead of apologizing profusely in the first instance, the airline initially issued statements indicating tha

One-Sided Dishonesty

by Neil H. Buchanan My two most recent columns addressed two very different subjects.  The Senate Democrats' filibuster of the Gorsuch nomination to the Supreme Court is worlds away from the Republicans' continued faith-based belief in supply-side economics, but both columns ultimately came back to the same larger points: Republicans' embrace of shameless dishonesty, and how everyone else should respond. Yes, I know that no political party can ever be made up of angels, and people who write columns like this one are supposed to say that "both sides do it."  A few months ago, for example, after The New York Times published a guest op-ed arguing that Donald Trump is a threat to democracy , two letter writers were irate. Supposedly, the problem was not that the op-ed had argued that Trump is a danger to democracy.  The big sin was instead that the op-ed's authors had not also chided Democrats.

The Stakes of the Originalism/Textualism Debate

by Michael Dorf (Updated with a Postscript below.) For a period after Justice Scalia's death, when it appeared as though President Obama would be able to name Scalia's successor and that a Democratic president would fill future vacancies, various commentators wondered whether Scalia's chief jurisprudential legacy--originalism in constitutional adjudication and textualism in statutory adjudication--would have staying power. For example, Prof. Eric Posner predicted that originalism would fade. Last week's Senate confirmation of Justice Gorsuch, who was happy to embrace the originalist and textualist labels, ensures that there will continue to be a market for briefs that make arguments appealing to originalist justices; this real-world relevance will in turn likely give a boost to originalist scholarship. By originalist scholarship I do not mean historical scholarship. Just about all jurists and scholars think that the history surrounding the adoption of authoritativ

The Rule of Law and Politics at the Supreme Court

By Eric Segall Over the weekend I participated in a wonderful constitutional law conference at Pepperdine with among many others, Michael McConnell, Mark Tushnet, Akhil Amar, Erwin Chemerinsky, Judge Posner and Barry McDonald. The overriding question of the day was whether structural changes to the Court are necessary given our hyper-partisan times. Although folks disagreed over that question, there was a general consensus that the Supreme Court is in some important sense "political," although folks meant different things by using that label, which is the point I want to focus on in this essay.

Senate Democrats Show Strength, Liberal Pundits Show Weakness

by Neil H. Buchanan And now Judge Gorsuch is Justice Gorsuch, completing the successful scorched-earth maneuvering by Senate Republicans to move the Supreme Court even further to the right.  May God have mercy on Mitch McConnell's soul (if He can find it).  As bad as this is, it is not a surprise. What is surprising is that the Senate Democrats actually figured out a way to make a few good things happen in the midst of this yearlong travesty, even though they knew that they would lose the ultimate battle.  Somewhat more surprisingly, Democratic politicians were actually more savvy than the left-leaning pundits this time around.

Imagining the End of President Trump

By William Hausdorff There continues to be a steady drip of revelations about Russian links, unending lies surrounding them, and a snowballing accumulation of lawsuits.   I’m now trying to imagine what specific revelations would have to come to light for this Presidency to be fatally wounded, and which Republicans would eventually stand up to Trump.

Expanding Reality-Based Law in the Death Penalty Area

by Sherry F. Colb In my most recent Verdict  column , I discuss the case of Moore v. Texas , in which the Supreme Court rejected the Texas approach to determining whether a defendant is intellectually disabled and therefore ineligible for the death penalty.  A Texas state habeas court had recommended a finding of intellectual disability for Moore, applying standards from the most up-to-date clinical manuals addressing intellectual disability and mental disorders.  The Texas Court of Criminal Appeals ("the CCA") rejected the state habeas court's recommendation, however, applying instead the standards contained in a 2004 case, Ex Parte Briseno , which utilized a combination of standards from an older intellectual disability manual (since superseded by the one used by the state habeas court) and several factors seemingly invented by the Briseno  court and related to stereotypes about the intellectually disabled (including a reference to the intellectually disabled characte

Prices, Money, Speech, and Democracy

by Michael Dorf In my latest Verdict column , I question the wisdom of last week's Supreme Court decision in Expressions Hair Design v. Schneiderman . The case involves a NY statute that--as construed by the Supreme Court in reliance on the earlier opinion by the Second Circuit--forbids merchants from placing a "surcharge" on credit card purchases, while allowing a discount for cash purchases. Because these are economically identical, the Court said, the NY law is really a regulation of how merchants communicate with their customers and thus a regulation of commercial speech. Accordingly, the SCOTUS remanded to the Second Circuit for application of commercial speech precedents. In my column, I connect Expressions Hair Design with the Court's campaign finance case law and express the concern that under the guise of freedom of speech, the Roberts Court may be undermining the New Deal settlement, by which courts grant near-complete deference to elected officials in r

Professor Peter Smith and Originalism as Levels of Generality

By Eric Segall I have been writing, reading, teaching and talking about originalism since 1995.  I try to keep up with the literature (a daunting task) but that perseverance can pay great dividends as it did this week when reading Professor Peter Smith's new article "Originalism and Level of Generality." Smith provides a wonderful explanation of just how far most contemporary academic originalists have strayed from a theory separate from "living constitutionalism," while also pointing out how inconsistent Justices Scalia and Thomas have been in their selective use of historical reasoning. While others including Mike and I have also told a similar story, Professor Smith has done an excellent job recounting it and bringing it up to date. I have never met Professor Smith but anyone interested in the current debates over originalism should read this piece.

How My Satirical April Fools' Essay Became Real Fake News

by Michael Dorf Yesterday my April Fools' blog post criticizing the Trump administration for a non-existent plan to run ads urging people not to sign up for health insurance on the exchanges created pursuant to the Affordable Care Act was republished by Newsweek as though it were real. The amusing error says much less about Newsweek --given the sequence of events I'll describe below--than it does about Donald Trump.

A Do-Nothing Presidency is Win-Win

by Neil H. Buchanan Why should Donald Trump bother trying to do anything during his presidency?  One answer might be that he has a list of things that he genuinely wants to accomplish, but that hardly seems likely.  He never really cared about anything other than insulting Barack Obama and spewing bigotry, and his views on substantive policy issues have always been, shall we say, fluid. Even so, Trump has shown signs in the past few weeks of actually caring about notching "wins" in his presidency.  This is perhaps understandable for a person who loves to pin the loser label on everyone else.  Yet it truly is surprising that Trump is putting in something resembling real effort on various issues, especially issues on which he need not weigh in. In a recent column , for example, I discussed Trump's unexpected embrace of the American Health Care Act, and I asked why he would "put his own credibility on the line with a bill that is obviously a train wreck."  Th

Alternatives to the Pence Principle

by Michael Dorf Since the (re)revelation that Vice President Mike Pence does not dine alone with women not his wife or attend parties where alcohol is served without his wife, most of the critical attention paid to this story (such as this  Vox piece ) has focused on the resulting (arguably illegal) denial to women of equal opportunities for career advancement, with a smattering of essays (such as  this  Atlantic  piece) slotting the furor itself into a narrative of disconnection between religious conservative America and secular liberal America. Here I'll add a couple of observations about the phenomenon itself and then offer a thought about how someone with Pence's concerns might address them in ways that do not adversely affect women.

Don't Celebrate Prematurely: The Trump Administration Has A "Plan B" For De-Funding Planned Parenthood

by Diane Klein The collapse of the American Health Care Act (AHCA) was the biggest headline of March 24, 2017. The New York Times called it a " major defeat , " and the next day, CNN called it an " acute embarrassment. "  What Paul Ryan presented to the Republicans as a Hobson's choice - take this version of "repeal and replace" or nothing at all - instead left him in the position of Buridan's ass : starved for votes, unable to move left without alienating the Freedom Caucus ( née the Tea Party), or right without losing moderate Republicans. A crucial flashpoint in the debate was Planned Parenthood, a bête noire of the far right. T he abandoned AHCA included provisions that directly targeted the organization, although not by name.  As the CBO explained, the AHCA cut off federal funds to any 501(c)(3) entity both "primarily engaged in providing family planning and reproductive health services and related medical care" and "

Law Profs React to Trump Order Authorizing Anti-Obamacare Ads

by Michael Dorf Remember back when conservatives were going nuts about how President Obama was supposedly acting like a king because he was using prosecutorial discretion to prioritize deportation of violent criminals while supposedly giving legal status to various categories of undocumented immigrants? Most liberals pushed back by arguing that the programs at issue in what became the 4-4 deadlocked case of United States v. Texas   did not actually present a problem under the Take Care Clause of Article II because the real issue was simply one of statutory construction. Nevertheless, a few liberals--including yours truly and, most prominently, UC Hastings law professor Zach Price--warned that we ought to be worried about some of the arguments being advanced to sustain executive power in the unlikely but terrifying event of a Trump presidency. (I summarized the debate in a blog post almost exactly a year ago.) Now that the unlikely and terrifying has come to pass, I take no satisfacti