Showing posts from February, 2020

Justice Thomas Uncharitably Characterizes His Own Opinion in Brand X

by Michael C. Dorf On Wednesday I explained why Justice Thomas is wrong in arguing, as he did in his dissent from denial of certiorari in Baldwin v. United States on Monday, that Chevron  deference to administrative agencies is unconstitutional. His argument, I explained, relies on an unnecessarily maximalist understanding of Chevron , seeing that case as mandating judicial abdication of the authority to construe the law in favor of administrative interpretation rather than as simply a presumption of statutory interpretation according to which congressional use of vague or ambiguous language in agency-empowering statutes acts as a delegation of policy-making discretion to agencies. Today I want to focus on Justice Thomas's further argument (in part II of his Baldwin dissent) that even accepting Chevron , his own majority opinion in the Brand X case should be overruled. He writes: "By requiring courts to overrule their own precedent simply because an agency later adopts

How to Spin a Plausible, Silly Political Theory -- and How That Distorts Commentary on Trump

Note to readers: My new Verdict column today takes a break from pessimism and looks (with a small amount of success) for reasons to be optimistic about the U.S. constitutional system.  My column here does not build on the Verdict piece, but I encourage you all to read -- and possibly enjoy -- both. by Neil H. Buchanan Did you know that the Change Candidate always (at least since 1960) beats the No-Change Candidate in U.S. presidential elections?  Other than when formerly Change Candidates run for reelection, this is true -- every time.  And even when a president is running for a second term, the basic logic still works -- every time. Although what I wrote above is mostly true (which I will demonstrate momentarily), the whole exercise is absolutely pointless and nonsensical.  Let us put aside for today thoughts of the doom of our constitutional system and work through a demonstration of armchair analysis that would be on the high end of U.S. political punditry, if only I cou

Justice Thomas Was Right Before and Wrong Now: Brand X and Chevron Should Not Be Overruled

by Michael C. Dorf Dissenting from the denial of certiorari on Monday in Baldwin v. United States , Justice Thomas urged his colleagues to reconsider and overrule its 2005 decision in  National Cable & Telecommunications Assn. v. Brand X Internet Services . Justice Thomas himself wrote the opinion for  the Court in Brand X. While he deserves praise for showing a willingness to change his mind, his dissent is wrongheaded. Justice Thomas was right in 2005 and wrong now. Although the Baldwin cert petition targeted Brand X , the real quarry for Justice Thomas is the doctrine on which it relies: Chevron deference to agencies.  Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , permitted the Reagan administration EPA to apply a more lenient interpretation of the term "stationary source" in the Clean Air Act than had the Carter EPA on the ground that an agency's reasonable construction of an unclear statutory term is entitled to deference by reviewing courts

How Democrats Treat Sanders Now Will Define Them -- Perhaps Not Well

by Neil H. Buchanan It is hardly news that the liberal establishment is absolutely freaking out about Bernie Sanders, just as it previously freaked out in an (apparently successful) effort to tear down Elizabeth Warren's candidacy last summer and fall.  Now that Sanders seems on the verge of locking up the Democratic Party's presidential nomination, things are truly getting weird at the top. It is not as though things have been sane in the suites of Democratic influencers up until now.  Last April, I wrote two columns describing the group panic that had Democratic insiders making all kinds of scurrilous attacks on Sanders.  And even on a less panicked level, the so-called moderates (whose moderation nearly always manages to lean right on economic and foreign policy) have been deliberately maligning the progressive candidates' positions. Thus, just a couple of weeks ago, the editors of The Washington Post wrote that "Sens. Bernie Sanders (I-Vt.) and Elizabeth

A Corrected Harvard Law Review Note Now Accurately Reflects the View of the Dorf/Koppelman/Volokh Brief in the Arkansas Anti-BDS-Law Case

by Michael C. Dorf A recent  Note in the Harvard Law Review  (also available here as a pdf) argues that state laws banning boycotts of Israel (so-called anti-BDS laws) cannot fairly be justified by claiming that such boycotts involve illicit discrimination or antisemitism and that therefore they should not be characterized as anti-discrimination laws. I think I might agree with that core claim. After all, although some people who support the BDS movement are motivated by antisemitism, many simply oppose various policies of the Israeli government. To be sure, some proponents of anti-BDS laws argue that participants in the BDS movement unfairly single out Israel. Why don't the proponents of BDS boycott Russia (which illegally occupies Ukrainian territory), China (which occupies Tibet and has sent over a million Muslims to reeducation camps), or other countries that violate human rights? The singleminded focus on Israel, BDS opponents say, bespeaks a bias. How widespread is suc

Statement of Former Reinhardt Law Clerks

by Michael C. Dorf After a former law clerk to Judge Reinhardt testified before a House subcommittee about how he sexually harassed her, other former law clerks reacted with supportive comments. For example, I posted a personal statement  saying that I believe her account and echoing her call for better systems for training, deterring, reporting, and responding to such conduct in the judiciary. Late last week over 70 former Reinhardt clerks (including me) signed a statement expressing those sentiments and more. Our statement, which has received some media attention, appears here .

Why Is That Rich, Oblivious, Red-Baiting Guy on the Debate Stage?

by Neil H. Buchanan How far should candidates go in attacking each other during primaries?  How unfair is too unfair?  How awful is too awful?  Former Mayor Michael Bloomberg decided to cross the line two nights ago, and he went so far past it that I was temporarily at a loss for words.  But the red-baiting plutocrat actually did us an inadvertent favor, because in crossing that line, he actually exposed a deep similarity between communism and (Bloomberg's version of) capitalism. I have been very hard on Pete Buttigieg and Amy Klobuchar for their unfair treatment of Elizabeth Warren, especially when they have falsely accused her of being vague and unrealistic.  Even so, those attacks might arguably not be the kind of thing that can readily translate into attack ads for the Republicans.  The difficult balancing act for candidates is in saying, "I'm better than her/him," without saying "She/He should never be president."  So let me be clear here.

Someone Should Tell Trump About Prosecutors' Absolute Immunity

by Michael C. Dorf I believe myself to be, overall, a pretty good parent, but like most parents, I've said or done things I regret. A low point for me came when my then-five-year-old daughter was resisting being dropped off for the first day of a half-day summer day camp at the local Y. I had a work meeting for which I was late and she was grabbing onto my leg and refusing to go with the "nice lady" (a teenage counselor) to play with the other five-year-olds. After my various efforts at coaxing and cajoling had failed, I resorted to a threat. "I guess I'll have to call the police," I said sternly. My daughter looked at me and said with disdain and anger: "This is not the kind of thing you call the police for." She was right, of course. Needless to say, I did not call the police, and eventually she calmed down. Knowing who can be held accountable for what by whom and in what way is much of what knowing about the law entails. Accordingly, I was

Transparency Without Accountability is Worse than Opacity (Stone/Barr/Trump edition)

by Michael C. Dorf The call  by over two thousand Justice Department alumni for Attorney General William Barr to resign over his handling of the Roger Stone sentencing recommendation provides an occasion for reflecting on a side issue that has emerged in this and other scandals of the Trump administration. One former DOJ official who has not joined the call for Barr's resignation is his former deputy, George Terwilliger, who was interviewed last week on NPR . In addition to defending Barr, Terwilliger expressed some mild criticism of the president's tweeting, but then pivoted to offer a silver lining. He said: I would agree that it would perhaps be better if the president didn't tweet about matters of this nature that are before the Justice Department. But on the other hand, there is a level of transparency as to his position that might not otherwise be seen. In response to a follow-up question, Terwilliger repeated the claim, stating that "there's a certain l

How Does Political Argument Work When the President Does Whatever He Wants?

by Neil H. Buchanan Donald Trump repeats himself quite often, and one of his favorite claims is that he has an "absolute right" to do whatever it is that he currently wants to do.  Most recently, for example, he claimed to have the absolute right to tell the Department of Justice what to do in the Roger Stone case (even though he denies having intervened).  He thinks that Article II of the Constitution means that "I have the right to do whatever I want as president," which would be funny if it were not so frightening. This means that Trump is accelerating down the road to autocracy and that "Trump and his supporters are effectively arguing for an elective monarchy" -- although the "elective" part clearly only includes the presidential election of 2016, given that the Democrats' 2018 blowout win somehow did not reflect the people's will, in Trump's eyes.  Only some elections count, apparently .  Certainly, 2020 will only count

For Presidents' Day, I Discuss a Lawsuit Against the Trump Administration But Not the President Himself

by Michael C. Dorf George Washington was born on February 22, 1732, so naturally, today being February 17, we celebrate his birthday, as well as the birthdays of all Presidents. Or is it the Presidents themselves, rather than their birthdays, that we celebrate? And do we have to celebrate all of them? Andrew Jackson? Andrew Johnson? Richard Nixon? Donald Trump? I like a good holiday as much as anyone else, so I'm celebrating by not writing a substantive blog post today. Instead, I direct readers to my latest Verdict column , in which I discuss the lawsuit filed by the NY State Attorney General against the Trump administration, seeking to block the new policy of denying all New Yorkers and only New Yorkers the opportunity to enroll in or renew expiring enrollments in the Trusted Traveler programs. I explain that the lawsuit makes good claims but that they could be strengthened a bit. (You're welcome, AG James!). Happy Presidents Day (or should that be Presidents' Day

Reassessing Judge Reinhardt

by Michael C. Dorf Yesterday attorney Olivia Warren testified before a House Judiciary subcommittee about her experience being sexually harassed when she was a law clerk to Judge Stephen Reinhardt of the US Court of Appeals for the Ninth Circuit during the last year of Reinhardt's life. Because I was a Reinhardt clerk and have written in praise of his work and character, I feel some obligation to comment. I am surprised and saddened to learn of what Ms. Warren endured, but I do not doubt her account. I say that because she has no reason to fabricate it and every incentive not to. Don't believe me? Ask Dr. Christine Blasey Ford (if you can find her) or Lt. Colonel Alexander Vindman what rewards come to those who speak truth to power.

Why Are Trump and the Republicans Showing Even Minimal Restraint?

by Neil H. Buchanan With Republicans defending or ignoring Donald Trump's post-impeachment outrages -- firing employees who responded to subpoenas and testified in House impeachment hearings, intervening in Justice Department sentencing recommendations for his corrupt pal Roger Stone, and so on -- there is no longer any serious prospect of his party trying to limit (or even condemn) Trump's shameless vindictiveness. I continue to believe that the impeachment process -- though doomed to "fail" in the literal sense of not resulting in Trump's conviction and removal from office -- was a success and a necessity.  Had the Democrats not responded to the whistleblower's report last Fall, the guardrails would have been removed even more quickly.  We would be on the same path, but Trump would have had a four-month head start on his renewed campaign to prove himself a king.  (It is also worth remembering, however, that Alexander Vindman and others paid a high but ho

Maybe It Actually Is A Suicide Pact?

by Neil H. Buchanan The assertion that "the Constitution is not a suicide pact" is famous enough to have its own Wikipedia page .  It is one of those famous turns of phrase that seems applicable to a surprising number of situations.  Professor Dorf and I are among the legions of scholars who have reproduced it in our writing .  Often wrongly attributed to Abraham Lincoln, the exact wording comes from a famed dissent by Justice Jackson.  (Note, however, that Lincoln did embrace the concept without coining the phrase.) The basic idea is both powerful and disturbing, because it is the quintessential example of wisdom that is essential but also open to abuse.  In former Judge Richard Posner's words, the concept evoked by the "not a suicide pact" meme should be "understood not as law but as the trumping of law by necessity."  (Note that he published those words in 2006, back when the verb "to trump" carried no irony or political weight.)  It

The Truly Subversive Message of Parasite

by Michael C. Dorf Bong Joon Ho's  Parasite made history on Sunday when it became the first foreign-language film to win an Oscar for Best Picture. Much of the coverage of the momentous award focused on Hollywood's race problem. The lead story in the NY Times was typical: "In honoring the film, which also won best director, original screenplay and international feature, voters managed to . . . embrace the future — Hollywood’s overreliance on white stories told by white filmmakers may finally be ebbing . . . ." Fair enough. The Academy and the industry in general need to do much more both to provide opportunities for and recognition to a more diverse group of writers, directors, actors, and others. Yet in treating Parasite as simply a foreign film with an Asian director and cast, the news coverage overlooks what makes the film truly remarkable. Here I'll offer a few thoughts on the deeply subversive nature of the story Parasite tells. I'll refer to the p

The Enablers of American Evil: The Rush Limbaugh Story

By Eric Segall Donald Trump's long history of racism and sexism, predating his Presidency, is well-documented. His use of the Central Park Five to stoke fear in New Yorkers, his racist landlord practices, and his lewd and insulting statements about how women look have for decades reflected his bigoted heart and dark character. Similarly, Rush Limbaugh's country-altering pattern of sexist, racist, anti-LGBTQ rants, quips, and jokes reflect the worst of our people over many decades. As the Washington Post recently reported : In some ways then, it was appropriate for a president known for fueling outrage, degrading opponents with insulting nicknames and putting on a show to award Limbaugh the Medal of Freedom. As Republicans gave him a standing ovation, Democrats sat in stony silence, appalled that someone who fueled bigotry and an incendiary media culture was receiving such an honor. The spectacle was the perfect embodiment of Limbaugh’s career and the politics, media — and

Even Atheists Should Be Upset With Trump for Ruining Religion

by Neil H. Buchanan I will give Donald Trump credit for being able to find new lows.  (Perhaps "credit" is not the right word here, but readers are free to substitute something more fitting.)  During the 2016 campaign, as he was being accused of having no sense of humor (or even humanity), he went to the Al Smith Dinner in New York City -- a 71-year tradition where political differences are set aside for a night of self-deprecating humor -- and, per NPR's headline writers, turned a "Friendly Roast Into [a] 3-Alarm Fire." Now, with three and a half years of added arrogance and the unbridled rage of an adolescent having been scolded ("This impeachment thing is soooo unfair, geez!!"), the blasphemous libertine decided to reward the religious leaders who have blindly backed him (Gotta have those anti- Roe judges!) by defiling the annual national prayer breakfast .  Having ruined comedy, why not ruin solemnity, too?

On the Value of Seeing the True Colors of Senate Republicans, and a Comment on Dershowitz's Bizarrely Post-Modern Non-Argument

Note to Readers :  Dorf on Law was founded and has been providing daily commentary since 2006.  We have always appreciated the high quality of our readers' comments as well as the rarity of any outbreaks of acrimony among commenters.  One reason for this truly unusual and happy state of affairs -- in a format that, based on what one can see at virtually every other blog, seems to bring out the worst in commenters -- is that the regular commenters on this blog have consistently set such a nice tone.  Professor Dorf and I have met only one or two of those commenters in person, but we still feel that we have come to know a few of those whom we have not met as friendly correspondents. Sadly, we received news last week that one of our most diligent and delightful commenters (who was particularly good at pointedly engaging with the occasional troll, without escalating into nastiness), who went by the online handle Shag from Brookline, passed away this past November at the age of 89. 

Legislative Purpose for Discerning Meaning Versus for Invalidation

by Michael C. Dorf My latest Verdict column discusses one potentially important aspect of  Espinoza v. Montana Dep’t of Revenue , which was recently argued in the Supreme Court. Montana is one of many states with a constitutional provision forbidding aid to private religious schools. Accordingly, the Montana Supreme Court struck down a state statute that provided tax credits facilitating such aid. The statute it invalidated provided aid to secular as well as religious schools. Had the Montana Supreme Court invalidated the statute only as applied to religious schools, it would have likely violated the US Constitution's First Amendment, as construed by the Supreme Court in its application to the States via the Fourteenth Amendment--because SCOTUS precedents forbid states from excluding religious schools from otherwise neutral aid programs. For what it's worth, I disagree with those SCOTUS precedents. I think states should have greater freedom than the Court allows them to a

The Case for Sanders (or Warren)

by Michael C. Dorf As we wait for the Iowa Democratic Party to release the results of yesterday's caucuses, it is worth recalling that, whatever those results, nearly all of the Democratic delegates remain to be chosen. Even folks like me who don't vote until the New York primary on April 28 could still end up playing a role in selecting the party's nominee. Suppose you are the sort of voter whose top priority is selecting a candidate with the best chance of defeating Donald Trump in November. You might think that you have no good way to know who that is, so you'll simply vote for whichever candidate among those who have a shot at the nomination you think would make the best president. In making that kind of choice, you would want to consider both personal style--Who would be best in a crisis? At managing the executive branch? Etc.--and the significant differences of policy among the remaining candidates. Policy differences would need to be discounted somewhat by t

The Least Bad (But Still Bad) Argument Offered Against Removing Trump

by Michael C. Dorf Unless Donald Trump stands in the middle of Fifth Avenue and shoots someone in the next two days--and frankly, even if he does--we can expect his certain Senate "acquittal" on Wednesday. What does it portend? I don't think anyone can say with confidence. The impeachment and non-removal of Bill Clinton did not harm his short-term popularity, but its long-term consequences were substantial. As a result of Clinton's conduct, Al Gore distanced himself from Clinton in the 2000 campaign; that distancing easily could account for the election being close enough for the Supreme Court to have given the presidency to George W. Bush. Then, in 2016, Hillary Clinton's association with Bill Clinton made her a highly flawed critic of Trump's misogyny. To be sure, one might think that the problem in both 2000 and 2016 was the reaction to Bill Clinton's underlying conduct rather than to the fact that Clinton was impeached-but-not-removed for that condu