Showing posts from June, 2020

SCOTUS Erred In Seila Law But Congress Should Require A Heightened Self-Dealing Risk Before Creating Independent Agencies

By Michael C. Dorf In his majority opinion in Seila Law v. Consumer Financial Protection Bureau , CJ Roberts summarized prior precedents on the scope of Presidential removal power as recognizing "only two exceptions to the President’s unrestricted removal power.  . . . Congress [can] create expert agencies led by a group of principal officers removable by the President only for good cause [and] provide tenure protections to certain inferior officers with narrowly defined duties." The CFBP Director is an individual, not a group, so he doesn't fall within the first exception. And the CFBP has broad and far-reaching duties, so the Director doesn't fall within the second exception either. Thus, according to the majority, the restrictions on at-will Presidential removal of the Director are unconstitutional. Justice Kagan's dissent is very persuasive. The Constitution's text contains no removal limit at all, and there is nothing in the Court's prior cases to sug

Two Cheers for the Roberts Concurrence in the Judgment in June Medical

by Michael C. Dorf Unsurprisingly and (mostly) appropriately, the big news in the SCOTUS decision in June Medical Services v. Russo  is that, as the NY Times headline put the point, " Supreme Court Strikes Down Louisiana Abortion Restrictions ." The fact that Chief Justice Roberts was willing to cast the fifth vote to invalidate any state abortion restrictions is a big deal. As I explain below, it hardly guarantees that he will in the end cast a fifth vote to retain abortion rights in the future, but at the very least it buys time. That is no small thing. Thus one cheer. The Chief Justice should also be praised for not hiding behind procedural legerdemain. The dissenters say that there needs to be a full-dress trial in Louisiana while its law is in effect before a court can strike it down, notwithstanding the fact that it is identical to the Texas law struck down four years earlier by the SCOTUS in the  Whole Woman's Health case. Yet that course would invite and reward d

Is Living Constitutionalism our Law? A Response to Charles Barzun and Jack Balkin

By Eric Segall Last Wednesday I had the great privilege of recording my first Supreme Myths Podcast/Video with Yale Law Professor Jack Balkin. Also last week, Professor Charles Barzun completed a three-part series on Balkinization on living constitutionalism and originalism. Both Balkin and Barzun share some common views about constitutional interpretation, judicial review, and the relationship between originalism and living constitutionalism that I will address in this post.

Justice Alito's Opinion in Dep't of Homeland Security v. Thuraissigiam Reveals Why "Custody" in the Narrow Sense Should Not Be a Requirement for Habeas

by Michael C. Dorf There is much that's wrong with Justice Alito's majority opinion for the Court in Dep't of Homeland Security v. Thuraissigiam ,  but I want to begin by acknowledging that there's something basically right about  Thuraissigiam : Justice Alito is right that the writ of habeas corpus is typically said to be available only as a means of challenging custody. The disagreement in  Thuraissigiam concerns the question of what counts as a challenge to custody. I want to suggest here that the defects in Justice Alito's opinion illustrate a flaw in our familiar way of talking about habeas as a means of challenging unlawful detention. Habeas has long been and should be broader than that. It is a means of challenging substantial restraints on liberty, which include detention but also other kinds of government action.

Keeping the Troops in the Barracks

by Neil H. Buchanan Every month, week, and day of the Trump Administration has been shocking and disorienting.  It has become a cliche to say that "this is a new low" and that maybe there is no bottom at all.  Even in that context, I believe that June 2020 is one of the most consequential months in American history, for better and for worse -- but mostly for better. My new two-part series of columns on Verdict reflects upon the better-and-worse aspect of this month.  Part 1 was published yesterday: " Trump’s Upcoming Refusal to Leave Office: The Good News ."  Part 2 landed on the virtual newsstands today: " Trump’s Upcoming Refusal to Leave Office: The Very Bad News ."  Even though I note that the bad news is "very bad" but leave the good news unmodified, this has still been a good month overall, because until now there was almost no good news at all.  Relatively speaking, things are a lot better. The reason that I am suddenly less pessimi

Bolton, Comey, and Everyone Who Plays Cute on Biden versus Trump

by Neil H. Buchanan I served on the law faculty of The George Washington University from 2007-19, and although I am delighted to have moved to my current position at the University of Florida Levin College of Law, my years at GW continue to exert some emotional pull.  I was thus delighted to see that 80 percent of my former colleagues signed a letter condemning GW Law alumnus William Barr for having "undermined the rule of law."  GW Law alum Kellyanne Conway is also a walking, talking repudiation of what law schools attempt to teach. More than 20 percent of the GW law faculty is, based on my years of observation, unlikely to be big fans of the Democratic Party, which means that some of those who signed the letter were doing something that did not line up with their political priors.  I hasten to add that those signers who happen to be Democrats are hardly to be disregarded merely because they have other reasons to be repulsed by Donald Trump and to oppose Republican poli

Breaking the Courts

by Jed Stiglitz Last week the Supreme Court rejected the Trump Administration’s effort to rescind DACA, the policy started under President Obama to provide deportation relief to immigrants who arrived as children. In a 5-4 decision with Chief Justice Roberts writing for the majority, the Court held that the rescission was arbitrary and capricious and therefore invalid under the APA. The case is a major victory for the over 700,000 DACA recipients who rely on the program. The case also creates a number of wrinkles in administrative law and presents important puzzles, one of which I want to focus on—why did we have this case at all? Observers including my host  have suggested a number of responses to this puzzle, but they all fit comfortably within normal politics. I wish to suggest one outside of normal politics.

Trump's Hamfisted Firing of SDNY US Att'y Berman Mirrors His Attempted DACA Rescission

By Michael C. Dorf Another weekend, another Saturday night massacre. Or so it seemed before Geoffrey Berman spared us a reprise of the Western schism in the late-14th-century papacy. Had Berman persisted, it would have been an interesting question whether the SDNY was Avignon and Washington was Rome or vice-versa. Or, if you prefer your historical analogies to be more local and (relatively) contemporary, think of the aftermath of the Dorr Rebellion that led to SCOTUS punting in Luther v. Borden in 1849.  In any event, Audrey Strauss is now the Acting US Attorney in the SDNY. AG William Barr has stated that he expects her to continue in that capacity until the Senate confirms a presidential nominee, but I'm not reassured. By all accounts, Strauss is a highly regarded professional with integrity, which all but assures that she will incur the wrath of Donald, perhaps leading him to fire her too. 

Fainting Couches for Conservatives

by Neil H. Buchanan Along with the lovely derisive terms that right-wingers hurl at their opponents -- snowflakes and libtards being only the tip of that iceberg -- is the idea that non-conservatives are merely pretending to be morally superior to conservatives.  A relatively recent snide term along these lines is "virtue signaling," by which aggrieved conservatives say that other people are not truly committed to the ideals that they tout but are merely gaining social status by showing other liberals how upright they are. The problem is that so-called virtue signaling is rampant on the right, making them rank hypocrites.  It is worth taking a moment to see how this works, because it is a technique of distraction that non-conservatives have failed to confront with any effectiveness.

Understanding Privilege, Or At Least Trying To

by Neil H. Buchanan It is a testament to the depth of the wounds of systemic racism in America that the protests sparked by the police murder of George Floyd have continued with such intensity for so long.  Especially during a public health disaster, it takes a lot to get people to sustain this kind of action and passion.  But with literally centuries of injustice unaddressed, it apparently took that final spark to start a conflagration. That is both tragic and hopeful.  The centuries of tragedy, of murder upon murder upon oppression upon oppression, are shameful to contemplate, especially because so many people knew about it but could not get everyone else to focus on such chronic injustice.  The hope now is that this is, at long last, the moment when things start to change in fundamental ways. In a column last week, I argued that this change should involve "leveling up," meaning that giving people equal protection means moving currently disadvantaged people up to the

American Racism as an American Institution

By Eric Segall The last few weeks have placed a spotlight on American racism in a way that holds some promise for real reforms and movement towards greater equality among and between whites and people of color. But true progress will never be made unless Americans fully accept that institutional racism is not some distant memory or remnant of a bygone era but is still very much with us today. We are a still a racist country, full stop. We must own our past and our present in order to move towards a less racist future. The United States of America was built in large part on the foundation of institutional racism. Our Constitution continued the practice of slavery for three quarters of a century after ratification. It took a civil war to formally end our original sin of white people treating black people as their personal property. From the mid-19th century to approximately 1964, much of our country engaged in racial apartheid, providing people of color grossly unequal access to go

Does Justice Gorsuch's Magnificent Opinion in the Title VII Sexual Orientation and Gender Identity Cases Redeem Textualism?

by Michael C. Dorf I'll start with the most important point: Justice Gorsuch's opinion for the Supreme Court in Bostock v. Clayton County   marks a historic victory for LGBT Americans, for civil rights more broadly, and for the rule of law. It rightly joins the canon of landmark gay rights opinions written by Justice Kennedy, for whom both Justice Gorsuch and I clerked many years ago (in different Terms). Indeed, this decision is the first majority opinion in a case vindicating LGBT rights written by any Justice other than Kennedy. What's more--and I say this with the greatest respect and admiration for my one-time boss--in sheer craftsmanship and with the possible exception of Obergefell v. Hodges (about which more momentarily), Bostock is the best of the bunch. It lacks Justice Kennedy's allergy to the conventional doctrinal categories. In Romer v. Evans , Justice Kennedy did not exactly reconcile what has come to be known as "rational basis scrutiny with bite&q

Could Elimination of Qualified Immunity Lead to Elimination of the Exclusionary Rule?

by Michael C. Dorf In my Verdict column last week, I discussed the emerging bipartisan coalition that aims to eliminate or substantially cut back on the qualified immunity (QI) that state and local officials currently enjoy when sued for civil rights violations. To summarize what I wrote in the column: (1) The main federal statute authorizing civil rights suits does not mention QI, but the courts have read in such a defense partly on the ground that the Reconstruction Congress that wrote the statute assumed QI as part of the background common law and partly on the policy ground of avoiding over-deterrence of the police and other state and local officials. (2) Conservatives have lately questioned QI on the ground that the current doctrine goes well beyond the 19th-century common law and more broadly on textualist grounds, thus joining liberals who have long argued that QI provides the police with a too-generous shield. (3) Because of the essentially universal practice of indemnificati

What is Constitutional Theory About and For? (My Contribution to a Conference on the Unraveling New Deal Settlement)

By Michael C. Dorf Today I will be attending (via Zoom) an all-day conference on the "Unraveling New Deal Settlement" organized by U Chicago Law Prof Genevieve Lakier and my colleague Prof Nelson Tebbe. The New Deal Settlement  refers to the conventional account of constitutional law since the late 1930s, in which courts defer to the outputs of representative institutions except where fundamental rights are at stake. The leading theoretical account is by the late John Hart Ely in his 1980 book Democracy and Distrust . The conference organizers asked us participants to address the questions whether the New Deal Settlement ever really was as robust as it seemed, why it has broken down, and what should replace it. The participants will be the two organizers, myself, and the following scholars: Kate Andrias; Jack Balkin; Aziz Huq; Amy Kapczynski; Jeremy Kessler; Leah Litman; Sam Moyn; Doug NeJaime; Jed Purdy; Sabeel Rahman; Micah Scwartzman; Amanda Shanor; Steve Shiffrin; Reva Si

Protests and Coronavirus: Yet Another Case of False Equivalence

by Neil H. Buchanan Given that the coronavirus pandemic has in no way ended -- indeed, cases are rising in many U.S. states, even during the time when they should be falling -- some people are understandably worried that the ongoing mass protests against racist police violence have possibly contributed to the spread of the virus.  I have the advantage of being able to cross the street when the rare pedestrian comes into view during my sanity-preserving walks, but I still want to return to something like normal.  I am concerned any time I see lack of social distancing. That does not, however, in any way mean that protests against public health measures by right-wing groups carrying assault weapons are the same as protests by millions of citizens calling for racial justice.  Yet that equivalence is now being promoted by conservatives as an indirect way of criticizing progressive protesters.  When I first saw a column making this slippery argument a few days ago in The Washington Pos

The Umpire-in-Chief and the Religion Clauses: Will he Make the Right Call in Espinoza v. Montana Dep't of Revenue

By Eric Segall From 1988-1991, while at the Department of Justice, I litigated on behalf of the United States Department of Education a church/state case in San Francisco in which a public interest group challenged federal aid to private religious schools. I worked closely with experienced lawyers representing the United States Catholic Conference and the Archdiocese of  San Francisco. Their position, and ours, was that the federal program was constitutional under relevant Court cases involving what the government could and could not provide to parochial schools. No one, and I mean no one, thought for one second that, by giving aid to not-for-profit private secular schools, the federal government would be constitutionally obligated under the free exercise clause to provide the same aid to religious schools. Quite simply, no one thought that. Sometime in the next month, the Court is going to decide Espinoza v. Montana Dep't of Revenue . This case should be a one-day blip with n

Everyone Should Have My Privileges

by Neil H. Buchanan It is difficult even to begin writing columns these days, because there is so much going wrong in the world.  When the issue of systemic racism came to dominate our lives, however, it became even more of a challenge to try to engage in a helpful way.  As a white Anglo-Saxon protestant man with a titled academic position, I have to ask myself what this aging liberal can say that does not run the danger of being presumptuous or possibly tone-deaf. It then occurred to me that I can come at this by acknowledging my privilege.  I am committed to engaging with others and to trying to understand and help (if I can) those who have reason to fear the police, but maybe it is also useful at least to try to describe what it is like not to fear the police. That is, I can attempt to explain how the privileges of race, class, and gender play out in ways that are often all too easy to take for granted.  Stopping to think about what I have almost never had to think about is e

Imagine Being a Lawyer for the Trump Administration

by Michael C. Dorf In the immediate aftermath of the 2016 general election, I wrote a column expressing the hope that a Trump presidency would not be quite as awful as the majority of voters who did not choose him feared.  Although some of my specific points have proven true, overall I was wrong. Amazingly, Trump has managed to exceed the remarkably high expectations for awfulness. Mea culpa. In today's column, I do not so much wish to dwell on the many ways I was wrong or the few ways in which I was right, as to focus on one of the points I made in the portion of that November 2016 column that offered advice. Here's what I said to Never-Trump Republicans (after thanking them for their opposition to Trump): If you are a principled conservative who opposed Trump's candidacy for any of the many excellent reasons there were to oppose it, PLEASE consider seeking and accepting a job in the Trump administration. We have a unitary executive in principle, but in practice it takes

Good News? Skeptically Assessing the Claim That 'the System' Will Force Trump to Leave Peacefully

by Neil H. Buchanan Will Donald Trump ever leave office, either because he loses this Fall or because his second term ends in January 2025 (and the Constitution has not been amended in the meantime to allow a third term)?  I am among those who have been frantically warning that the answer is no, that Trump will simply refuse to leave office. My most recent Verdict column explains that there might be nothing that we can do about this.  Wednesday's parade of silence from Republican U.S. Senators, who were asked about Trump's order for security forces to violently push peaceful protesters out of Trump's path to a photo op, certainly supports my assertion on Verdict that these senators would piously refuse even to entertain questions about a Trump coup in advance.  "I will not dignify such an outrageous question with an answer!" The two plausible non-outrageous and non-dangerous scenarios in which Trump stays in office next year are: (1) Trump is declared th

Are Churches Like Restaurants? Like Political Rallies? If So, Why Isn't Peyote Like Wine?: The Comparator Problem In Religious Discrimination Cases

by Michael C. Dorf In my essay on Tuesday , I criticized the dissenting Justices in  South Bay United Pentecostal Church v. Newsom  for seeming to misunderstand and/or mischaracterize California's rules governing in-person worship services, which, at the relevant time, were permitted if limited to 25% seating capacity and a cap of 100 people. As California argued and Chief Justice Roberts explained in his concurrence, comparable secular activities such as lectures, concerts, and live spectator sports were completely forbidden, so that far from discriminating against religion, California was giving religious worship services a special benefit (assuming that the opportunity to contract COVID-19 is a benefit, as all parties assumed). Justice Kavanaugh's dissent contrasted the treatment of worship services to other activities that were not subject to the 25% cap: "factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, book

How Close Are We to A Breakdown of True Law and Order?

by Neil H. Buchanan This is horrifying.  Last week on Dorf on Law , we took a partial break from the news cycle by devoting three of our five columns to an academic discussion about an issue that we care about greatly, but such luxuries are for the time being denied to us, because the man who has claimed over and over again to be "the most militaristic person there is" now has actually threatened to turn American cities into battle zones and has had troops fire tear gas, flash grenades, and rubber bullets at peaceful protesters. It is amazing, in fact, that I did not know about Trump's "most militaristic" claims until I watched Seth Meyers's segment last night (from the 7:59 mark through 8:26 of the video, showing six times when Trump so labeled himself); but it makes sense not only that Trump would say such an idiotic thing but that we never even noticed, given how many other things he has said that are equally deranged. That Trump (or maybe it was

Statement by the Black Law Students Association of Cornell Law School (Guest Post)

Dear Cornell Law School community,  Cornell Law School’s Black Law Students Association (BLSA) stands with the families of George Floyd, Breonna Taylor, Tony McDade, and Ahmaud Arbery. We give honor to their memories and to the memories of countless others who have been unjustly taken from this world, whether we know their names or not. We extend our heartfelt condolences to their loved ones and acknowledge that the people they have lost are more than a hashtag.    Black people are in a unique position today, facing both the brunt of the COVID-19 pandemic and the unrelenting violence against our brothers and sisters all across the country. In the last month, we have seen videos of Ahmaud Arbery’s and George Floyd’s murders. We have seen reports of Breonna Taylor’s and Tony McDade’s murders. This trauma is incessant in the age of social media and more than any community should have to bear.     While we continue to grieve Mr. Floyd and others, we are reminded that murders like his are t

For Four SCOTUS Conservatives, Insufficient Discrimination In Favor Of Religion Is Discrimination Against Religion

by Michael C. Dorf South Bay United Pentecostal Church v. Newsom should have been a unanimous Supreme Court decision. Under the 1993 precedent of  Church of Lukumi Babalu Aye v. Hialeah , a law or policy that on its face or in its intention discriminates against religion or a particular religion violates the constitutional guarantee of free exercise, though under the earlier (1990) precedent of Employment Division v. Smith , a law or policy that applies evenhandedly to religious and secular activities, individuals, and organizations does not implicate free exercise. As Chief Justice Roberts explained in an opinion concurring in the Court's order in South Bay United last Friday, the Court had before it a challenge to an evenhanded policy. When the case came before the Court, California was allowing houses of worship to hold in-person services, but in light of the risk of COVID-19 spread, had limited attendance to 25% of seating capacity and a maximum of 100 people per service. &quo

The American Experiment: A Blip in Time or a Country for the Ages

By Eric Segall Forty-three years ago I was walking around Cambridge University on a breezy summer day. My buddy and I were working in a mail room in Brighton between freshman and sophomore years of college and decided to hitchhike, yes hitchhike, to Cambridge for an annual music festival.  The groups were mostly British except for the headliner, a new American folk/pop star named Don McLean. As we strolled around the campus, we came upon a student dormitory that was built in the 13th century. I don't remember the date with 100% certainty but I think it was 1268. Bill and I looked at each other. We were shocked and amused by this. Students were learning and teachers were teaching on this spot more than 500 years before the United States of America was born. Five-hundred years. In 1977, our own country was just a tad over 200 years old, and England had been around much more than twice as long as that. Skip ahead to last Friday. I was taking my morning walk and listening, as I