Showing posts from April, 2019

The Bernie Sanders Problem, and Why Intramural Fights on the Left Matter

by Neil H. Buchanan Many of my columns of late have walked a bit of a tricky path, defending Bernie Sanders from attacks by establishment Democrats and the press (see, e.g., here and here ), and describing Sanders's policy proposals as very mainstream and reasonable (e.g, my recent two-parter, here and here ), even while stipulating over and over that I am not a Bernie fan.  I have not, however, devoted much time to explaining why I am not said fan. This requires some explanation.  After all, if Sanders is being unfairly attacked by people for whom I have disdain -- and especially if he is proposing sound and reasonable policies -- why not jump on board the Bernie train?  I will try to make sense of that seeming contradiction in this column, along the way explaining a deep divide among non-conservative economists. The bottom line is that being against what is wrong does not always make one right, because it is still possible to be wrong in a different way.

Congressman Cummings Should Rely on Impeachment and Emoluments Supervision to Justify the Trump Accounting Firm Subpoena

by Michael C. Dorf On Thursday, I discussed the use of the pejorative "Democrat Party" in a complaint filed by lawyers working for Donald Trump (in his personal capacity) and various Trump companies. I worried that the practice has spread from the frothing right to what now passes for the mainstream right. My worry was well-founded. That very day, Deputy Attorney General Rod Rosenstein displayed his partisanship by using "Democrat" as an adjective--ironically enough in a phrase that purported to disavow partisanship ("There is not Republican justice and Democrat justice. There is only justice and injustice.") It's possible that Rosenstein did not realize that he was using a slur, but if so, that only shows that he moves in such highly partisan Republican circles that he routinely hears the slur rather than the proper name of the Democratic Party. For now, I want to double back to a question I bracketed last week: the merits of Trump's lawyer

Did Anything Interesting Happen While I Was Gone?

by Neil H. Buchanan As I have noted in various recent columns (most recently here ), since late January I have been on a semester-long trip to the UK and some other northern European countries.  With my return to the United States scheduled for this coming Monday, this is my last Dorf on Law column from the other side of the Atlantic (for now), which presents an opportunity to reflect on what has happened over the last three months in my home country. Before getting to those larger issues, I will note that the biggest change for me personally since I left the U.S. is that I have accepted the James J. Freeland Eminent Scholar Chair in Taxation at the University of Florida.  I continue to be excited about this next stage in my career, in particular because UF is giving me the resources needed to continue my research collaborations with scholars abroad while potentially bringing graduate tax students to Gainesville for our top-tier LL.M. and J.S.D. programs. With my last stop in E

Trump Lawyers Use "Democrat" as an Adjective: How to Respond

by Michael C. Dorf On Monday, Donald Trump (in his personal capacity) and various Trump-affiliated companies sued Congressman Elijah Cummings and the Chief Investigative Counsel to the House Oversight and Reform Committee, seeking to block the subpoena issued by the House to an accounting firm demanding various Trump-related financial records. The complaint alleges that the subpoena exceeds the Committee's authority because it is unrelated to any potential legislation. I am not interested right now in whether the complaint has merit. Rather, I want to focus on the repeated references in the complaint to the "Democrat Party."

Is Nollan Just an Exactions Case? Reflections on Nollan and Horne (Guest Post by Stanford Law Professor Mark Kelman)

by Mark Kelman   In the canonical case of Nollan v. California Coastal Commission , the Supreme Court held that the California Coastal Commission was obliged to compensate parcel owners who had surrendered a lateral easement across the dry sand adjacent to the sea wall between their home and the ocean only because the Commission conditioned the grant of a building permit to expand their home on the surrender of the easement. The case limits state power in two important, widely recognized ways.  In Takings law terms, a state cannot argue that it has not taken but been granted property when it exploits its power to provide desired but gratuitous benefits to extort “voluntary” transfers; property is taken, not truly granted, unless the permit condition serves the same legitimate policy purpose as a refusal to issue the permit would have served. Read as a case on unconstitutional conditions, Nollan helps fortify the important point that greater powers need not entail lesser powers.  The

Judge Posner, Title VII and Why Sexual Orientation Discrimination is Discrimination Based on “Sex”

By Eric Segall The United States Supreme Court granted certiorari on Monday in two cases raising the issue whether the federal employment discrimination statute, commonly referred to as Title VII, which prohibits employment discrimination based on “sex,” protects gays and lesbians from discrimination based on their sexual orientation. The lower courts have divided on the issue, and there have been numerous judicial opinions discussing the question. These cases raise important and controversial issues of both public policy and statutory interpretation. The public policy question, which potentially affects millions of Americans and their employers, is whether federal law provides protection for gays and lesbians from discrimination on the basis of their sexual orientation. The statutory interpretation question is how judges should interpret ambiguous terms in old statutes when we know how the drafters would have interpreted those terms, but society has changed dramatically in

Giving the Moderation Obsessives a Fair Hearing

by Neil H. Buchanan I admit up front that calling the subjects of today's column "moderation obsessives" would seem to undermine my claim that I plan to give them a fair hearing.  Yet it is difficult to think of a more accurate description, given that many somewhat liberal Democrats and former Republicans seem to think that moderation is the be-all and end-all of winning elections. More to the point, even though I am amused by their single-mindedness, that does not stop me from trying to find where they might have a good argument and where we might actually agree. In any event, today I am going to use New York Times op-ed columnist David Leonhardt as a leading example of a moderation obsessive.  That does not mean, however, that he is addicted to centrism, and he is even willing to say obviously true things (such as "Donald Trump should be impeached" -- even before the redacted Mueller report was released) that make many wimpy Democrats blush. He is not

Pretexts in the Travel Ban Case, Method-of-Execution Cases, the Assange Indictment, and More Generally

by Michael C. Dorf "Even a dog," Oliver Wendell Holmes, Jr. wrote in The Common Law , "distinguishes between being stumbled over and being kicked." Today, as in 1881, when Holmes wrote those words, intentions matter in the law. They can be the difference between criminal and innocent conduct, between  liability and non-liability, between constitutional and unconstitutional actions. And yet illicit intentions can be notoriously difficult to prove. Moreover, in at least some contexts, making intentions dispositive can be problematic in principle. If it is unconstitutional for a municipality to close its public swimming pools rather than desegregate them (as four justices would have held in Palmer v. Thompson ), must the municipality keep the pools open forever, even though it had no obligation to operate swimming pools in the first place? If not, for how long must it keep the swimming pools open? What if the bad actor cites some facially plausible reason that is no

Mueller's Mistake: A Criminal Trial is not an Opportunity for the Defendant to Clear his Name

by Michael C. Dorf Special Counsel Robert Mueller accepted the Justice Department policy barring indictments of a sitting president. He could have nonetheless made a determination whether Trump would be subject to indictment based on his conduct as evaluated under the governing statutes and Justice Department policies if Trump weren't president, but Mueller declined to do so. Why? According to the Mueller Report (Vol 2, page 2): Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial

Mueller Report Counterspin: We Still Don't Know Why Trump Denied Russian Interference

by Michael C. Dorf Attorney General Barr, President Trump, and their FoxNews amen chorus spent several weeks spinning what turns out to be a substantially fictional version of even the redacted Mueller Report . Now the rest of us weigh in. Here I'll offer both a substantive and prescriptive take for everyone who regards Trump's presidency as a disaster. My bottom line is this: The Report could but won't be used as the basis for impeachment. Meanwhile, it leaves two fundamental questions unanswered. First, why, both during and after the campaign, did Trump repeatedly deny Russian efforts to interfere with the election, when he must have been well aware of them? Second, if they had nothing to hide, why did so many of Trump's close associates lie to Mueller's team and why did Trump--whether or not he committed acts that are chargeable as obstruction under DOJ policy--repeatedly try to undercut the investigation? I don't have definitive answers to those questi

The Attacks on Sanders Are Almost All Scurrilous

by Neil H. Buchanan This week has seen increased discussion of intensifying conflict between Bernie Sanders and the Democratic Party's establishment, including a prominently placed New York Times article describing a group of "Stop Sanders" Democrats who are "agonizing" over what to do about him. This is, of course, the opposite of news.  The only question is whether the anti-Sanders forces (which means basically everyone with any power in the party, including all of the big and medium-sized donors) will decide that they hate Sanders so much that they will tear him down at all costs, up to and including tacitly endorsing Donald Trump's reelection. To be clear, I am not offering here a now-standard "You guys are helping to reelect Trump!" attack on the people I disagree with -- at least not yet.  Among other things, as I have made clear again and again, I am emphatically not a Sanders fan.  I do like most of his policy positions, but so much

Ask the Professor Part 1: Did the Fifth Amendment Impliedly Repeal the Natural-Born-Citizen Requirement for the Presidency?

by Michael C. Dorf Today I'm inaugurating a new series of occasional blog posts in which I answer questions from readers. As those of you who visit the blog directly may know, I often respond to interesting questions or criticisms that readers pose in the comments, but I have found lately that between the comments section, social media, and email, I've been getting a fair number of interesting questions that call for a response on the blog. Rather than try to force my answers into the news cycle, I will from time to time simply reproduce a reader's question and then offer some thoughts in response. Unless readers publicly identify themselves (e.g., by using a real name in the comments) or expressly granting me permission, I shall post the questions as coming from anonymous sources. I shall sometimes take the liberty of modestly rephrasing questions. Today I address a question posed by a reader who wants to know what I think of an argument set out in a 2006 law review ar

The Steps to the Unthinkable: Republican Support of a Trump Coup

by Neil H. Buchanan Ever since Donald Trump became more than a punch line, his dictatorial and more generally anti-constitutional tendencies have caused some of us a great deal of concern.  As I wrote in a column two weeks ago, I am among the people who have been metaphorically running around with our hair on fire for the past three years, warning that Trump's buffoonery and incompetence are no brake against his willingness to ignore and destroy the rule of law. The response to this warning has been, to put it in one particularly grandiloquent phrasing, that the American system's majesty and genius make it stronger than any one man.  Even if Trump wants to be a king, the system is strong enough to stop him. Trump and his minions obviously take that argument at least somewhat seriously, which has led them to vilify the supposed "deep state" of people in the system who stand in their way.  Acting Chief of Staff Mick Mulvaney, for example, recently rejected Jake

Yale Law School, Ted Cruz, and Religious "Liberty" Run Amok

By Eric Segall After students at Yale Law School protested the speaking engagement of a lawyer working for the ultra-conservative, non-profit legal organization Alliance Defending Freedom, Yale announced a new policy regarding which organizations may access some of Yale's vast resources. This policy applies to employers that take into account  “religion,” “religious creed,” “gender identity” or “gender expression,” among other factors during their hiring practices.  According to Dean Heather Gerken, Yale  will "not financially support employment positions unless they [are] open to all of our students, including members of the LGBT community."  This decision is completely within Yale's rights and should be applauded by everyone in favor of equal rights (I have no connection to Yale Law School). Nonetheless, the religious community responded with outrage that this policy might affect some religious organizations that don't hire gays and lesbians. This disco

What Kind of Education Do We Owe Future Generations?

by Neil H. Buchanan My European adventure continues, even though my job status has changed while I have been over here.  ( Hello, Florida! )  One of the reasons I decided to spend most of a semester on this side of the Atlantic was to work on a book project that I had set aside for quite a few years -- What Do We Owe Future Generations? -- which I discussed in two relatively recent columns here on Dorf on Law , one in late January and the other in early February . I ended up presenting ideas for the book on what amounted to a speaking tour of the UK and some nearby countries (Ireland, the Netherlands, and Sweden).  The twelve talks mostly (but not always) went over quite well, and they all served the purpose of allowing me to think out loud and to receive questions and suggestions that will significantly move the project along. My final gig was yesterday afternoon at the University of Gävle (pronounced YEHV-luh, more or less), a medium-sized city about 100 miles north of Stockh

I'm No Bernie Fan, But This Is Getting Ridiculous

by Neil H. Buchanan There has long been ... shall we say ... concern among even the most liberal of the "respectable" Democratic opinion makers about the prospect that Bernie Sanders could become their party's presidential nominee in 2020.  Lately, however, that concern seems to be giving way to full-on panic -- so much so that the party establishment's overreaction and exaggerated attacks are likely either to spur a sympathetic reaction in Sanders's favor or, worse, to create a schism within the party. I am fully on the record as being no fan of Sanders.  I do like his policy agenda (more on that below), but I concluded during the 2016 primaries that he was simply not the best candidate either in substance or style.  I thus have received my share of angry emails from Sanders fans claiming that I was on the Clinton Foundation's payroll, that I am no better than Trump, and so on. But if the anti-Sanders forces were successful in creating the negative Ber

Why is the Constitution Authoritative?

by Michael C. Dorf I was recently asked by a Minnesota high school student to contribute a short essay to a website on which legal scholars and judges answer the following question: "What is the most important aspect of the constitution that is not commonly known across America?" I have reproduced my answer after the jump. As a postscript, I include a few comments on the project as a whole and some of the other contributions.

Muslims, Buddhists, Equality, and Time

by Michael C. Dorf In February, the Supreme Court reversed a decision of the Eleventh Circuit, which had stayed the execution of a Muslim inmate whose request for an imam to be by his side in the execution chamber in light of the fact that the Alabama prison regularly allows a Christian chaplain to accompany Christian inmates.  The vote was 5-4. In March , the Court granted a stay to a prisoner who sought the accompaniment of a Buddhist spiritual adviser in the death chamber, given that Texas allows Christian or Muslim spiritual advisers. The vote was (apparently)* 7-2. Chief Justice Roberts and Justices Alito and Kavanaugh voted against the Muslim inmate in February but (apparently)* for the Buddhist inmate in March. What explains the difference? One possibility is religious bias. Maybe the justices who changed their votes like Buddhists but dislike Muslims. And maybe Justices Thomas and Gorsuch, who voted against both inmates, dislike both Buddhists and Muslims, while Justices G

In Which I Become Florida Man!

by Neil H. Buchanan I am very pleased to announce that I have accepted an offer to join the faculty at the University of Florida Levin College of Law .  Specifically, my title will be Professor of Law and James J. Freeland Eminent Scholar Chair in Taxation.  Quite a mouthful! As Dorf on Law is mostly devoted to legal, policy, economic, and political analyses, this type of announcement is out of our norm.  But given that this blog's authors change jobs less than once per decade , none of this can be called normal.  Here, I will offer some thoughts on UF, why I am moving, and (to fulfill my need to talk about policy) some musings on the state of higher education in the United States today. I will begin by acknowledging the 800-pound gorilla in the room, noted in the title of this column, which is the Florida Man meme.  For those readers who are blissfully unaware, for the last several years the world has been regaled with stories of the bizarre and humorous (but sometimes dead

The Establishment's Obsession with Joe Biden

by Neil H. Buchanan Amid the now-standard cacophony that defines the Trump era, arguably the story of the week has been the debate among Democrats and other Trump opposers about Joe Biden's "touching problem."  Even with the continuing realization that Trump's attorney general is trying to whitewash and bury the Mueller report, with House Democrats finally demanding that Treasury turn over Trump's tax returns, and with Trump embarrassingly backtracking on health care and on his absurd idea to immediately close the Mexican - US border (now having issued a "one-year warning" instead), it seems that most discussion was about Biden instead. To be clear, I am not suggesting that this is a bad thing, in the style of people saying, "Gee, with all of the real and serious problems in the world, we're focused on this ?!"  Quite the opposite, I think it is important to note that we now take the Biden issues seriously enough that the discussion ca

Facial and As-Applied Cruelty

by Michael C. Dorf On Monday, in Bucklew v. Precythe , the SCOTUS rejected an Eighth Amendment claim by a condemned Missouri man who argued that although the state's execution protocol was not cruel in general, it would be cruel as applied to him, because vascular tumors in his head, neck, and throat could hemorrhage or rupture during the execution, leading to "prolonged" excruciating pain. Writing for the 5-4 majority, Justice Gorsuch sounded three main themes. (1) Throughout the opinion, Gorsuch all but accuses petitioner Bucklew and his attorneys of bad faith. Although Bucklew committed his crimes in 1996 and exhausted his direct appeals and habeas challenges "more than a decade ago," the opinion states, "since then he has managed to secure delay through lawsuit after lawsuit." Given the very substantial skepticism with which the majority views Bucklew's entire case and death penalty litigation more broadly, it is probably not surprisi

When Do Two Wrongs Make a Right?

by Michael C. Dorf In my Verdict column last week , I discussed the seeming premises behind the questions that Justice Thomas asked during the recent oral argument in Flowers v. Mississippi . The case raises questions about a prosecutor's racially discriminatory use of peremptory challenges to African American jurors. At the very end of the argument, Justice Thomas asked whether defense counsel used her peremptory challenges in a manner that discriminated against white jurors. As I discuss in the column, that was an odd question. My colleague Prof Sheri Johnson--who argued the case for Flowers in the Supreme Court--quickly answered that no issue of improper conduct by defense counsel was presented as the case came before the SCOTUS. With an assist from Justice Sotomayor, she also explained that it was, in any event, impossible to say that defense counsel engaged in race discrimination, because, with one exception, she only had the opportunity to use peremptory challenges agains

The Don't-Worry-Be-Happy Response to Trump's Threats to Democracy

by Neil H. Buchanan One of the metaphors that occasionally tips into overuse in US political discourse is the hair-on-fire formulation, as in, "I was running around with my hair on fire in 2003, telling everyone that the intel on weapons of mass destruction was wrong!"  The phrase certainly paints a picture, but as Orwell warned, even effective imagery can die from excessive exposure. Although that phrase is not currently suffering from overwork, I will nonetheless merely suggest here that I have been rushing about with my follicles aflame for about three years now, warning of the threat to constitutional democracy that Donald Trump and the current version of the Republican Party represent.  My current stint in the UK and Europe has involved delivering a series of lectures that expand on the point that I sketched out in my February 5 Dorf on Law column, " Is the Rule of Law More Important Than Breathing? " My argument is that we have reached a point in time

Trump Sues to Block "Are You Smarter Than Trump?"

by Michael C. Dorf After Nickelodeon revived the former Fox show Are You Smarter Than a Fifth Grader?  in February, it should not have come as a surprise when Comedy Central announced next week's scheduled premiere of its spinoff Are You Smarter Than Donald Trump? . The concept is straightforward. Host Steve Harvey will ask contestants questions to which Trump does not know the answer. I know what you're thinking: that hardly narrows things down. But as the promotional material makes clear, for a question to appear on Are You Smarter Than Donald Trump? ,   it's not enough that Trump certainly doesn't know the answer; he must have publicly espoused the wrong answer at some point. Excited prospective viewers have been wondering what questions will be asked. Will contestants need to know whether Nambia is a real (shithole) country? Will they be asked  how many Articles the Constitution contains ? The difference between counsel and council ? Where to buy the best co