Showing posts from January, 2019

Should Congress Outlaw Shutdowns?

by Michael C. Dorf As I discussed in my last post , I think it unlikely that when the clock strikes midnight on Valentine's Day, the partial federal government shutdown will resume. To be sure, with Trump all (horrible) things are possible. Still, I regard two alternative scenarios as much more likely: (1) Congress adopts legislation that both extends DACA and TPS and contains funding for what can be characterized as a wall by Trump and a not-wall by Democrats; or (2) Congress adopts legislation that funds the government on a longer term basis, while Trump unilaterally declares a national emergency to fund his wall. Even before the latest shutdown ended, members of Congress introduced bills to outlaw future shutdowns. Ohio Republican Senator Rob Portman introduced a bill --the End Government Shutdowns Act--that would renew existing funding levels for 120 days. In the event that no new funding legislation is passed, a 1% across-the-board funding cut would then occur, followed by

Why Use Phrases Like "Implied Consent"?

by Sherry F. Colb In my Verdict column for this week , I discussed the case of Mitchell v. Wisconsin , on which the U.S. Supreme Court recently granted review. The case asks whether a state can suspend the warrant requirement for blood samples that police wish to take from unconscious DUI suspects. The Wisconsin statute at issue provides that drivers give implied consent to such warrantless blood tests when they drive in the state and their driving gives rise to probable cause to believe they are intoxicated. Furthermore, if they become unconscious when police wish to take blood, they forfeit their right to revoke their implied consent, because they cannot revoke anything while unconscious. The Supreme Court will decide whether this makes sense as a matter of Fourth Amendment doctrine. In this post, I want to focus on the words "implied consent" and ask why anyone chooses to deploy such language. First, let us think of legitimate uses for the phrase. You go to a hair salo

A Candidate Talks About Intergenerational Justice (Somewhat Coherently)

by Neil H. Buchanan One of the longest of long shots in the Democratic presidential field is Pete Buttigieg, the mayor of South Bend, Indiana.  One of the reasons that he is such a long shot is that, to state the obvious, he is the mayor of South Bend, Indiana.  As resumes for presidential candidates go, this is pretty unimpressive stuff. The mayor of Los Angeles, Eric Garcetti, is apparently is thinking about running , too, but at least LA is the size of many European countries -- and even then, Garcetti seems an unlikely candidate.  On the other hand, enough people voted for a nobody named Donald Trump in 2016 for him to sneak through the Electoral College into the Oval Office.  Also, Buttigieg's name might sound odd, but we did elect a guy named Barack Hussein Obama -- twice.  Who knows whether Buttigieg might find some traction? Because political handicapping is not part of my job description, however, I am happy to take Buttigieg's entry into the race as an opportuni

Sixteenth in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Roger Stone & Jerome Corsi)

by Diane Klein Back in May, 2018 , Roger Stone announced that he was "prepared to be indicted" by Mueller, and sure enough, in a pre-dawn raid on January 25, 2019, he was arrested by the FBI.

Schrödinger's Wall

by Michael C. Dorf President Trump's capitulation last week to the Democrats' plan to reopen the government for three weeks while members of Congress of both parties (and presumably representatives of the president) negotiate allows for only two realistic options: (1) An agreement that permits Trump to claim that some amount of money has been appropriated for a "wall" while also permitting Democrats to claim that no money has been appropriated for a "wall"; or (2) no agreement on Trump's wall, a long-term spending bill that Trump signs, and a Trump declaration (over Democratic objections) of a national emergency that enables him to shift money from other appropriations to wall funding. Despite Trump's initial statement that failure to reach a deal that includes wall funding could lead to shutting down the government again, I regard that option as essentially off the table. The longest-ever shutdown gave Trump no leverage and undercut his already-

Democrats 2020: The Swinging Septuagenarians

by Neil H. Buchanan Even though the next U.S. presidential election will be held more than 21 months from now, it is understandable to want to talk and write about the candidates, even as one laments that the U.S. does not have snap elections that force shorter campaign seasons.  It is actually a pleasure of sorts to think about the prospect of replacing the worst and most dangerous president ever.  With no news about the shutdown, it is even more tempting to focus on the Democratic contenders.  What else is there to worry about, after all -- other than everything? With that non-apology on the table, I hereby pick up where my last column left off,  There , I asked which types of political apostasy in a candidate's past should count as "unforgivable."  Much to my chagrin, the candidate who failed my nascent forgiveness test is Senator Kamala Harris, who had been my personal favorite possible candidate for the past few months.  I will summarize my reasoning for that con

Is the President a "They"?

by Michael C. Dorf Notwithstanding the title of this column, I do not intend to diagnose Donald Trump with multiple personality disorder. Rather, I mean to invoke a well-known article by Kenneth Shepsle-- Congress is a "They," Not an "It": Legislative Intent as Oxymoron . Relying on difficulties long ago identified by Condorcet, Arrow, and public choice theory more broadly, Shepsle made a point that had hardly eluded scholars and judges but which, he argued with some force, many of them seemed to forget from time to time: the intent of a legislature in enacting a law is not merely difficult to discern but usually incoherent. Shepsle's article aimed at intentionalism in statutory interpretation, but he also criticized self-described textualists who limited their critique of intentionalism to an attack on sources. It's not enough to say (as Justice Scalia used to say) that committee reports and other forms of legislative history are unreliable evidence of

Michael Flynn ∩ Enes Kanter = Erdoğan

by Diane Klein Enes Kanter is afraid for his life.  And not because he might be fouled by Vince Carter or Dirk Nowitzki . The Turkish NBA player, until recently best known to Americans primarily as a double-double machine for the New York Knicks, stayed in the U.S. last week while his team traveled to London , because he was not confident his security could be assured.  What has put him at risk is his criticism of the current president of his home country, Recep Tayyip Erdogan, "a dictator in all but name," who is now seeking Kanter's arrest and extradition due to the player's association with the man Erdogan blames for the failed July 15, 2016, military coup attempt against him, his former ally,  Fethullah Gulen . Kanter's ties to Gulen are real; the athlete says he was with Gulen on the night of July 15, 2016, and he is a supporter of Gulen, though it has estranged him from his family in Turkey. However, the precise role of Gulen (a legal permanent re

How Unforgivable Are the Democratic Candidates' Various Mistakes?

by Neil H. Buchanan As Donald Trump continues to prove his unfitness for office -- indeed, as he continues to demonstrate his complete lack of empathy for anyone who doe not support him (or even for millions who do) -- the Democrats are now launching their 18-month marathon to determine who will replace Putin's puppet.  Things are already rather interesting. Earlier this month, Professor Dorf wrote a column discussing the flurry of media coverage about a whisper campaign designed to sink Senator Elizabeth Warren's candidacy.  The idea is that Warren is supposedly not "likable," or something, and the people who want to bring Warren down are saying that she has all of the personality issues that supposedly were Hillary Clinton's undoing. Dorf's question was whether a person who does not buy into the obviously sexist basis for that argument can responsibly take others' sexism into account when deciding who should be the Democratic nominee next year.  D

Originalism and Deference: A response to Ilan Wurman

By Eric Segall Professor Ilan Wurman of Arizona State has written a thoughtful and mostly fair review of my new book Originalism as Faith . I wanted to briefly respond because the one aspect of the review that I think muddies the waters also happens to be what I think is the major new contribution of my book.

McConnell's Usefully Bad Argument About Investing in Border Security

by Neil H. Buchanan At some point, Senate Republicans will have to become involved in efforts to reopen the federal government.  Their majority leader, Mitch McConnell, has thus far blocked the Senate from voting on any of the funding bills that the House has sent its way.  Worse, he has simply refused even to try to do anything positive, sitting idly by while Trump's temper tantrum endangers millions of Americans' lives, threatens their financial well-being, and puts our futures at risk. What does capture McConnell's attention?  Today's Washington Post includes an op-ed with McConnell listed as the author, and it is actually easy to believe that he wrote it himself.  After all, it is all about McConnell's lifelong commitment to rigging elections, and it is certainly written in his voice, including his oh-so-snarky labeling of a House bill "the Democrat Politician Protection Act."  Yes, even now, McConnell insists on using "Democrat" instea

Can Dogs Invade Our Privacy?

by Sherry F. Colb In my column for this week , I discuss a case from Minnesota  that may make it to the U.S. Supreme Court. The case raises the question whether a dog sniff of a private resident's door constitutes a "search" for purposes of the Fourth Amendment bar on unreasonable searches and seizures. The Minnesota Supreme Court held that the answer was "no" and that police therefore needed no warrant, probable cause, or other indices of reasonableness for having brought the drug-sniffing dog to detect narcotics in the house from outside of the house. The answer to the question may turn on how the Court defines a "search." The Katz v. United States   definition (really the Harlan concurrence's definition) is the invasion of a reasonable expectation of privacy. The more recent (though also more ancient) definition has to do with the invasion of property, of "persons, houses, papers, and effects," rather than an inquiry about privacy

Why Professor Hemel is Wrong About Life Tenure for SCOTUS

By Eric Segall Professor Daniel Hemel of the University of Chicago has written a thoughtful essay in Politico on why allowing Supreme Court Justices to serve for life, while raising some problems, is not as bad as the two potential cures that I and many other scholars have advocated (term limits or a mandatory retirement age). Although Hemel raises some strong arguments, they are not ultimately persuasive.

A Second Brexit Referendum Would Not Be Undemocratic

by Michael C. Dorf Now that Parliament has resoundingly rejected the Brexit deal that PM May negotiated with the EU, a replacement deal seems highly unlikely. EU authorities could make some token concessions or give some nice-sounding reassurances, but the margin of defeat strongly indicates that nothing to which the EU could reasonably agree would come close to satisfying the coalition of (mostly Tory) Brexiteers and (mostly Labour) Remainers who voted no yesterday. Other than another vote on more or less the same deal with what most observers expect would be more or less the same outcome, that leaves two main options: (1) crash out of the EU without a deal, a chaotic process that would have very harmful economic consequences and potentially harmful political consequences at the Ireland/Northern Ireland border and/or elsewhere; or (2) remain in the EU after all. Here I want to explore option (2). One way for the UK to remain in the EU would be for Parliament to simply ignore the r

Romney's Revealingly Empty Rebuke of Trump

by Neil H. Buchanan It was never quite clear why Mitt Romney, the Republicans' failed 2012 presidential nominee, decided to run for the U.S. Senate.  He is turning 72 in March, he has no particular policy interests that seem to motivate him, and he was signing up for a job that often comes with almost no power or responsibility. True, he knew that he could win easily (running in his current home state of Utah), but even that required some humiliating suck-up time to get Republican voters to forgive him for saying nasty things about Donald Trump in 2016.  Why take the job at all?

Fifteenth in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Neal Katyal and Bill Barr)

by Diane Klein Today, confirmation hearings begin for William Pelham Barr as U.S. Attorney General, a position he held from 1991-1993 under George H.W. Bush.  Top of mind among Senators are Barr's statements about the Mueller investigation contained in an unsolicited 20-page memo he wrote in June 2018.  To the extent those statements tell us something about his views of the powers and duties of the special counsel, and the relationship between the Justice Department and the Special Counsel, it might be worth consulting the drafter of those regulations - Neal Katyal, who served that role  as a 29-year old new lawyer in 1999 working for Janet Reno (and later served as acting Solicitor General under Obama).

The Least Interesting Branch

by Michael C. Dorf Recently, a longtime DoL  reader emailed to ask whether the Trump administration had made my life  as a constitutional scholar more interesting. Yes, I replied, but I added that I would gladly accept some boredom in my professional life in exchange for more sanity as a citizen. Yet I may be suffering from the worst of both. Trump serves us up a constant barrage of crisis-threatening legal questions that have gone unanswered by the courts because no one had previously tested these particular limits. Can a president pardon himself? Can a sitting president be indicted? Can the president forbid the dissemination of a special prosecutor's report on bogus national security grounds? Some of Trump's greatest outrages lead to litigation, and some of that litigation eventually reaches the Supreme Court, as the Travel Ban eventually did. But here we are two years into this execrable presidency, while disputes over most of his rage-tweet-inspired policies either la

National Emergencies: The Big Picture

by Michael C. Dorf Donald Trump and his spokespeople have repeatedly floated the possibility that, if Democrats in Congress do not accede to his demand for $5.7 billion of border wall funding in exchange for ending the partial government shutdown, he will declare a national emergency and divert previously allocated funding to building his border wall. The proposal raises numerous legal questions. Do the statutes that allow the declaration of such an emergency really vest that much discretion in the president? How have previous presidents used this authority? Are there judicially enforceable rules or standards about what constitutes an emergency? How much, if any, deference, would the president receive, assuming the courts were willing to subject the declaration of an emergency to judicial oversight? What party or parties would have standing to challenge an emergency declaration leading to the shifting of funds to wall construction? What cause(s) of action could be brought? What kind

How Bad Will Things Become? Part Nine: A Useful Not-Quite-Overruled Precedent

by Neil H. Buchanan If there is ever another president of the United States, and if she is a Democrat, we will have a different kind of divided government, with a rabidly conservative Supreme Court set to do battle against its ideological foes in the political branches.  Even if the Senate flips back to the Democrats, of course, Republicans will continue to engage in guerilla warfare by finding parliamentary tactics to gum up the works, but I want to focus on the Court's role as a barrier to future progress. In my newest Verdict column , I consider an admittedly odd hypothetical question: If a future Congress and President agree to tax rich people more effectively than we currently do, will the Court's hyper-conservative bloc use a discredited precedent to invalidate that tax?  My answer is, "Yes, they might."  Here, I want to explore that discredited precedent a bit more, in order to return to the larger question of just how bad things might become under the sol

Facebook, Automated Censorhsip, and Experimentalism

by Michael C. Dorf My latest Verdict column discusses the recent revelation that Facebook employs a small army of moderators armed with thousands of rules for censoring hate speech. To summarize, I note: (1) FB appears to have adopted the policy partly in response to a public outcry over offensive and outright lethal uses of its platform; (2) in addition, in many of the countries in which it operates, FB is legally obligated to censor hate speech; (3) that obligation means the effective export of other countries' restriction to the US, where our First Amendment protects hate speech as free speech; (4) but because FB is a private company, its censorship is legally permissible here; (5) in choosing to censor via rigid rules, FB follows roughly in the path of US legal doctrine, which, where speech is concerned, generally prefers the vices of rules -- under- and over-inclusiveness relative to their background justifications -- to the vices of standards -- uneven application and ris

The President Cannot End a Shutdown by Fiat

by Neil H. Buchanan As the insanity of life in Donald Trump's world takes an even more extreme turn, we now find ourselves asking whether he might actually have meant it when he said that he will keep the government shut down for months or years unless he receives funding for his pointless and wasteful wall.  What could be weirder than this? Well, the latest bizarre idea within this bizarre new reality is the claim that he might invoke presidential war powers to use the military to build his wall.  As of this morning -- and subject to any forthcoming tweets, off-the-cuff comments yelled at reporters, or simply a change of the subject -- the possibility of presidential unilateralism is still on the table. As a matter of law, that ridiculous idea has already been roundly rebuked, including in a very good op-ed by Yale law professor Bruce Ackerman.  If legal analysis matters anymore, Trump will not have a leg to stand on.  (On the other hand, Jack Balkin's "on-the-wal

The ACA Case, Off the Wall Arguments, and a Look Back at Shelby County

By Eric Segall Most legal scholars, including Professor Jonathan Adler who attacked the Affordable Care Act ("ACA") with a vengeance on several occasions through what many of us considered less than persuasive legal challenges, as well as Mike , have opined that Texas Judge Reed O'Connor's attempt to kill the ACA for good is legally ridiculous and has little chance on appeal. In response, some legal realists (like myself) have suggested "not so fast," because one never knows what the Supreme Court is going to do in these kinds of high profile political cases. Over at Balkinazation, Professor Jack Balkin applied his thoughtful "on-the-wall"/"off-the wall" legal theory to Judge O'Connor's absurd view that when the 2017 Congress reduced the penalty (or tax) for not complying with the ACA's individual mandate to zero, what that Congress was really saying was it wanted some forum-shopped judge probably in Texas to strike do

Elizabeth Warren, Hillary Clinton, and Democratic Voters' "Palmore Problem"

by Michael C. Dorf Elizabeth Warren should be a formidable candidate for the Democratic nomination for president in 2020. As noted in a recent article , she is ideologically left/center-left, which is just about smack in the middle of the Democratic primary electorate. Moreover, she has a message and policy track record that should make her an attractive general election candidate who could win back enough of the Rust Belt voters who went for Trump in 2016 to (re)turn Pennsylvania, Ohio, Michigan, and Wisconsin blue. Given her successful championing of the Consumer Financial Protection Bureau, Warren could run as a genuine progressive populist while accurately painting Trump's purported populism as a thin veneer over standard-issue Republican stroke-the-rich policies. That is not to say that Warren is a perfect candidate. She lacks foreign policy depth (although she undoubtedly understands much more about the world than Trump does); she risks following in the

It's Good to See You Go, Paul Ryan. Please Stay Away

by Neil H. Buchanan There are plenty of frauds in public life, people who somehow manage to sell their imagined seriousness to gullible reporters and pundits, all the while being little more than empty suits.  But in a profession with empty haberdashery everywhere one looks, Paul Ryan was the shiniest, emptiest suit of them all. And today, for the first time since 1999, Congress is convening without Ryan as one of its members, while Nancy Pelosi will retake the gavel that he so badly mishandled for a bit more than three disastrous years as Speaker of the House.  We should all breathe a big sigh of relief. I wrote a column about Ryan's retirement announcement last April.  Everyone by that point had figured out that Ryan's brand of ugliness was no match for Donald Trump's.  The weaker man would have to go, and he did.  But Ryan did stick around through the end of the most recent Congress, doing essentially nothing while watching his party be sent back into the minority

Seeing Facts in a New Frame

by Sherry F. Colb In my Verdict column this week, I discuss a program for rape prevention that challenges assumptions on both sides of the political spectrum. The left, on the whole, tends to assume that if we teach men how to read consent (and non-consent) in women, and if we teach men not to rape women, then fewer men will rape women. The right, by contrast, regards rape as a nearly inevitable consequence of the mismatch between male and female sexual desire coupled with men's inability to control themselves once they become aroused. Both ideologies appear to have led us astray due to flawed factual assumptions. In this post, I want to suggest that seeing facts differently can help us in related areas as well. In the context of date rape, many of us have been focused on men as a group, attempting to educate the group in how to correctly understand and respect the wishes of women. We believed that date rape results from confusion about non-consent, and the solution to confusio

Naive, Stupid, Evil, Trump (A Dorf on Law Classic)

Note to readers: Today is the final day of the holiday hiatus on Dorf on Law .  To celebrate the beginning of 2019, I am re-posting a column that originally ran on June 13, 2017, which might help to put some of the recent Trumpian insanity into perspective.  Enjoy, and Happy New Year to all! "Naive, Stupid, Evil, Trump" by Neil H. Buchanan Donald Trump is wrong almost all of the time about almost everything.  He lies constantly, and even though he is constantly being caught in his transparent lies, he never admits error, pressing ever forward on his destructive path. Does he do this because he knows nothing about the world?  (That is, is he naive ?)  Alternatively, maybe it is because he is incapable of logical thinking.  (Is he stupid ?)  Or is it instead because he has horrible policy goals?  (Is he evil ?) All three of those explanations fit, and then some.  As Michael Dorf argued in a recent column , normal human beings can be "evil, stupid, or ignora