Showing posts from September, 2020

The Pandemic versus the Shiny Distraction of Trump’s Taxes

by Neil H. Buchanan   Every day that the news is not focused on the Covid-19 pandemic is a good day for Donald Trump.   Earlier this year, I wrote two columns on Dorf on Law ( here and here ) in which I argued that the Supreme Court's decisions in what had become known as the "Trump tax cases" were surprisingly but profoundly unimportant.  I conceded that the Court had done something good by not doing something terrible, which in this instance would have involved endorsing Trump's insane "absolute immunity" theory.  Otherwise, however, the cases were in fact not particularly important politically or practically. Every day that the news is not focused on the Covid-19 pandemic is a good day for Donald Trump.   In those columns, I argued that "Democrats might even be better off in a world in which Trump insists on acting like he has a lot of bad things to hide than in one where we get to see what he is hiding (even if it is truly bad)."  Well, co

Are Trump's Justices Tainted?

by Michael C. Dorf I am not a political strategist, but if I were, I would advise Senate Democrats not to engage at all with the merits of Judge Amy Coney Barrett as a Supreme Court nominee. Do not question her about her judicial philosophy, do not parse her record as a judge and a scholar for indications of how she would decide cases on the Supreme Court, and by all means do not ask what she believes the role of precedent in constitutional cases should be. Such inquiries have become futile in the best of circumstances, and we are currently in the worst of circumstances. Posing questions to Judge Barrett as though she were just another nominee risks normalizing her nomination. There are also reasons to think that Judge Barrett will come across on tv as much less scary to civil rights, civil liberties, and effective government than her record indicates she will be as a Justice. She's smart, highly personable, and by all appearances has led a very admirable private life. Democrats wh

The Winner-Take-All Problem with the Supreme Court Appointments Process

By Daniel Epps Just like everyone else interested in constitutional law (and just like many other people in America, too) I've been thinking a lot about the Supreme Court in the wake of Justice Ginsburg's death. In particular, I've been continuing to reflect on what's wrong with our current system that has led us to this crisis. I discuss some of the system's defects in this Politico  interview last week .   In the interview, I talk about two failings with our system that should be pretty well understood by readers of this blog. First, there's the democracy deficit with our electoral system, in which the Senate and the Electoral College mean that the key decisionmakers may not represent the will of the majority of American citizens. Second, life tenure means that vacancies occur at unpredictable times, meaning that some Presidents get more opportunities to appoint Justices than others. These two problems interact with each other, making the problems worse. Presi

State Legislatures Cannot Act Alone In Assigning Electors

by Grace Brosofsky, Michael C. Dorf, and Laurence H. Tribe The Constitution’s Presidential Electors Clause of Article II, Section I empowers each state, through its legislature, to direct the “Manner” by which its representatives in the Electoral College are appointed. Since relatively early in the nineteenth century, the near-universal practice of states has been to enact legislation designating popular election as the appropriate manner. With the exception of Maine and Nebraska, which apportion their Electors to the winners of the Presidential election in each Congressional district, every state assigns its Electors to the winner of the statewide Presidential election. Given President Trump’s unprecedented suggestions that he would not accept the result of an election that he loses, the question has arisen whether he might attempt to subvert that result by exploiting an apparent loophole. Suppose that more ballots in a state are cast for Democratic nominee Joseph Biden’s slate of ele

Justice Ruth Bader Ginsburg’s Legacy as a Justice and What That Reveals About our Broken Supreme Court

 By Eric Segall Justice Ruth Bader Ginsburg was a remarkable woman both personally and professionally. Way ahead of her time, she championed women’s rights and changed American history for the better. Warm, caring, and funny in her private life while also fearlessly fighting for a better and more just society as a lawyer, judge, and justice. She will be sorely missed. At this moment in America’s history, however, we should also pause to recognize that as a justice, Ginsburg was a partisan who for more than a quarter of a century voted her politics, beliefs, and values regardless of prior law. In that regard, the only difference between Justice Ginsburg and Justices Thomas and Alito, when it comes to their Supreme Court careers , is that Ginsburg did not hide her politics behind the false veneer of originalism, and that difference matters. But what matters more is recognizing that this remarkable woman, when handed largely unreviewable power for life, did what just about everyone would

The Long Con versus the Smash-and-Grab: Why Do Republicans Have So Little Finesse?

by Neil H. Buchanan I have long been predicting that Donald Trump will stay in the White House, fully supported by the Republican Party, no matter what happens in this year's election.  Recent events have made me ever more grimly confident in that prediction.  So unless something wonderful happens -- or more accurately, unless American democracy draws the ultimate inside straight -- the Republicans will get what they have always wanted: permanent and unchallenged power, notwithstanding their extreme unpopularity. At some point soon, I will likely go back to writing columns about what to expect under a completely unbound Trump dictatorship.  Today, however, I want to ponder why the Republicans were willing to carry out this heist of the American experiment in such a blundering and obvious way.  As I will demonstrate, they could have done it much more smoothly and left themselves with a healthier country to run into the ground.  Why the lack of even a tiny bit of finesse?

Why Do Republicans Bother To Lie About Their Judicial Appointments Strategy?

  by Michael C. Dorf In an  insightful essay Monday on Balkinization , Columbia Law Professor David Pozen dissects the terrible reasons that Republican Senators have given for why it was okay for them to hold open the seat that became vacant when Justice Scalia died in February of an election year but it's somehow imperative to fill the vacancy occasioned by Justice Ginsburg's death in September of an election year. As Professor Pozen shows, the real, operative "McConnell Rule" is revealed by the Senate Majority leader's actions: "block as many Democratic nominees and confirm as many Republican nominees as is politically feasible." I completely agree with Professor Pozen's analysis, but it raises a question: Why do McConnell and other Republican Senators even bother to lie about what they're doing, especially given how transparently unpersuasive their lies are? To be sure, we might ask the same question about Donald Trump, who often lies for no

Freedom of Movement and Freedom of Commerce: Barr Is Still Wrong

by Neil H. Buchanan   For the last several years, it has become a grim, oft-repeated joke that it is impossible to keep up with the blur of awful news that rushes by us, dreary day after depressing week after soul-crushing month.  This last week seems to be both proof that it can always get worse and a demonstration that even hitting bottom would not be in any way a relief.  If this truly is as low as we go (and I doubt that it is), then that merely means that life might have fewer big shocks ahead -- but that we are stuck with the consequences of what we have already endured. We very recently were wondering whether Donald Trump's insulting of people who join the military -- and especially those who are captured or die -- would erode even a tiny bit of his political support.  We heard him admitting on tape that he has been very consciously lying about the coronavirus pandemic.  We had heard Trump's Roy Cohn projecting every Trumpian evil onto Trump's opponents, claiming th

Confronting Originalism: Truths and Myths

 By Eric Segall This post was mostly written before the death of Ruth Bader Ginsburg. The country has lost a true hero who in both her personal and professional life lived up to our highest ideals. Her litigation crusades to achieve equal rights for women changed this country forever. She will be sorely missed. I can't add anything to Mike's beautiful Saturday morning tribute . Last Friday I gave a presentation (virtually of course) at the University of Nebraska on "Confronting Originalism." I outlined a series of truths about originalism that also dispelled numerous myths about originalism. Here are some of the arguments I made.

RBG From the Point of View of the Universe

  by Michael C. Dorf "President Trump’s nominee will receive a vote on the floor of the United States Senate." -- Majority Leader Mitch McConnell in a statement released yesterday that pivoted from gracious praise of Justice Ruth Bader Ginsburg to doublespeak about how 2020 is supposedly qualitatively different from 2016. "[T]he funeral baked meats [d]id coldly furnish forth the marriage tables." -- Hamlet (in Act I, Scene II), chafing at how soon after the death of his father the king, his mother, Queen Gertrude, remarried the new king, Hamlet's uncle Claudius. ---- It was inevitable that the news cycle would not pause to reflect on the extraordinary career and life of Justice Ruth Bader Ginsburg before turning immediately to a discussion of whether there exist at least four Republican Senators who are not utter hypocrites. Still, I might have thought that savvy-if-evil politicians like Senator McConnell would have waited at least 24 hours before announcing t

William Barr Has the Gall to Say He's Accountable to the People

  by Michael C. Dorf The written version of the remarks Attorney General William Barr delivered this week at Hillsdale College was not as incendiary as what he said orally but, as I shall elaborate, infuriating nonetheless. The most outrageous oral statement came in Barr's response to a question about public health measures. He said that "putting a national lockdown, stay at home orders, is like house arrest. Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history." Prof Buchanan explained in his insightful post yesterday that much of what Barr said was absurd anti-government cant. He prefaced that explanation by noting that the outrageousness of Barr's condemnation of lockdowns was not the comparison to slavery, which Barr acknowledged was worse than and categorically different from lockdowns. No, the outrageousness was thinking that U.S. lockdowns (which, as I explained on Wednesday, were

Barr, Slavery, and Lockdowns: Completely Wrong, But Not for the Reasons You Might Think

by Neil H. Buchanan The big story from the recent appearance by Donald Trump's personal attorney William Barr at a religious college in Michigan is that Barr supposedly likened this year's COVID-related shutdowns to slavery.  The Washington Post , for example, ran a news article under these words: "Barr under fire over comparison of virus lock-in to slavery."   I have absolutely no reason to bend over backward to give Barr the benefit of any doubt, but that is not what he said.  What Barr said was outrageous in other ways, as I will discuss, but what he actually said was this ( per CNN ): "'You know, putting a national lockdown, stay at home orders, is like house arrest. Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history,' Barr said as a round of applause came from the crowd."   Again, there is a lot going on there, but Barr was careful specifically to say that slave

What's Wrong, But Also What's Right, About the District Court Ruling Invalidating Pennsylvania's Public Health Measures

  by Michael C. Dorf On Monday, Federal District Judge William Stickman IV ruled that public health actions by Pennsylvania Governor Thomas Wolf--most centrally a stay-at-home order and business closures during the most acute phase of the COVID-19 pandemic--were unconstitutional infringements on liberty and, in one instance, a denial of equal protection. The ruling in County of Butler v. Wolf  generated considerable news coverage, much of it in a partisan frame: a Trump-appointed judge who was confirmed on a close-to-party-line vote seemed to say that the arch-conservative 1905 decision in Lochner v. NY remains good law, and in so doing vindicated GOP resistance to coronavirus-fighting measures by a Democratic governor. I have good news and bad news. The good news is that the opinion is more thoughtful and well-reasoned than it has been portrayed. The bad news is that it is nonetheless wrong on a number of key points. In this essay, I'll first describe what Judge Stickman gets rig

For the Zillionth Time, Being Fair Does Not Mean Treating All Views as Legitimate (Election Rigging Edition)

by Neil H. Buchanan   Donald Trump and his enablers are remarkably consistent in accusing others of Trump's own sins.  This reaches absurd new levels when Trump's campaign tries to say that any bad things happening today are "Joe Biden's America," but there has long been a consistent drumbeat of projection coming from TrumpWorld. Trump constantly calls for companies to be boycotted and disfavored people to be shunned, but it is the "radical left" that is supposedly canceling everything in sight.  Trump pushes for big new military toys, but somehow it is the generals who have forced him to ignore the enlisted women and men.  Trump does everything in his power (and then some) to put an internal coup in motion, but he and his minions claim that the Democrats' efforts to hold Trump responsible under the Constitution and statutes (including oversight and impeachment) are somehow evidence of efforts to negate an election. Bill Barr, Trump's personal a

Robert Jackson, Stan Van Gundy, Patriotic Rituals, and the Endowment Effect

  by Michael C. Dorf "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." -- Justice Robert Jackson, speaking for the majority in West Virginia State Board of Education v. Barnette (1943), which, in the midst of a world war, held that children in public schools may not be compelled to recite the Pledge of Allegiance. "All the talk about national anthem protests begs the question — Why do we even play the anthem before games? Why do we have to honor our country before we play a game? We don’t play the anthem before movies, plays etc. It makes no sense. Let’s end the practice and just play."  -- Stan Van Gundy, former NBA head coach and front office executive, on Twitter on Friday. --------- Justice Jackson's opinion is rightly celebrated as a bra

Actions versus Inactions: Trump Is Better Off When He Does Nothing (and so are we)

by Neil H. Buchanan   The latest avalanche of news includes the release of excerpts from Bob Woodward's new book, supported by tapes of a series of his interviews with Donald Trump.  The most grimly amusing aspect of the fallout from the book's bombshells is Trump's attempt (parroted, of course, by the White House disinformation office and the right-wing mediaverse) to say that he was wise to decide to "play down" (his words) the coronavirus, even though he knew that it was a uniquely dangerous threat. On that tape, and in his own followup comments since the release of the audio, Trump says that he did not want to create a "panic," and he and others are now saying that the public would have been in a "frenzy" if he had not been so rock solid in making calm decisions.  By contrast, many non-Trump sources have noted that stoking fear and panic is in fact what Trump is more than happy to do all the time -- Antifa thugs are moving into your neighb

Originalism Without Slavery and Sexism is a Dangerous Fiction and Other Absurdities: A Response to Professor McGinnis

 By Eric Segall Noted Originalist John McGinnis of Northwestern University recently wrote a blog post  with a title that, when I read it to my non-lawyer wife, made her incredulous. The title was "Can Modern Originalism Save American Constitutionalism?" Isn't "modern originalism" an oxymoron, my wife asked me. It was a good question but I was too busy being mad at the rest of the piece to answer her directly. Much that is wrong with "modern originalism" is reflected in McGinnis's piece. McGinnis begins by quoting Sir Roger Scruton, who compared the French and American Revolutions. The former was intended to "transcribe into political ideas that had previously no overt presence there and which owed much to the abstract arguments of philosophers," while the latter "was designed to guarantee to the people what they had once enjoyed. It was a recipe for an already established practice rather than a recipe for a new order of things."

Doc Rivers, the Garrison-Douglass Debate, Thurgood Marshall, and the Nature of the Constitution

  by Michael C. Dorf In an eloquent impromptu speech that quite appropriately received a great deal of attention, Los Angeles Clippers Coach Doc Rivers responded with a mix of outrage and sorrow to the theme of the Republican National Convention: fear. How grotesque, Rivers said, that the RNC brazenly tried to frighten its overwhelmingly white base and try to appeal to white suburban swing voters by grossly exaggerating the threat to civil order posed by the small minority of agitators who have used the occasion of generally peaceful protests demanding racial justice as an opportunity to loot, damage property, and provoke or commit acts of violence. "We’re the ones getting killed," Rivers said. "We’re the ones getting shot. We’re the ones that were denied to live in certain communities. We’ve been hung. We’ve been shot. And all you do is keep hearing about fear." The Rivers speech was extremely powerful and quotable. Here I want to focus on what he said at the end.

Political Vendettas versus Progressive Policy

by Neil H. Buchanan   I honestly did not expect the op-ed page of The New York Times to give space this week to an argument about an obscure tax provision -- not with so many threats to the future of the republic under intense discussion -- but apparently the relevant editors are still suckers for counter-intuitive nonsense.  In particular, liberals criticizing other liberals is like catnip for these people, it seems. The clickbait headline of the piece in question is: "The Tax Cut for the Rich That Democrats Love," supported by the sub-headline: "Why are party leaders fighting to get rid of one surprisingly progressive element of the 2017 tax bill?"  Juicy!  The authors ( Richard V. Reeves and Christopher Pulliam, or RP going forward) are affiliated with the Brookings Institution, which has a reputation for being friendly to Democrats in the very non-progressive sense that that party's establishment still embodies. But whether or not these guys are progress

Peak Presidential Vaporware

  by Michael C. Dorf The term "vaporware" refers to software or occasionally hardware that a company advertises before it exists, often long before it exists, if ever. Here I want to borrow the concept. Many of Donald Trump's policies are Presidential vaporware. The most obvious example is The Wall at the southern border, which  Trump boasts about but virtually none of which he has actually built . Many of Trump's tweets threatening or promising some action end up being empty rhetoric and thus another kind of vaporware. As a lawyer, the instances of Presidential vaporware I find most interesting are those that take the official form of executive orders or directives but, upon inspection, do virtually nothing, typically instructing various agencies and officials to study options and report back. For example, on Wednesday of last week, Trump issued  a document  to the Attorney General and the Director of the Office of Management and Budget with the preposterous title &q

Prophylactic Laws

  by Michael C. Dorf Scholars and jurists debate the legitimacy of the practice by which courts create so-called prophylactic rules that go beyond what the written law strictly requires. The best-known examples of rules that some people regard as prophylactic are the Fourth Amendment exclusionary rule and the Miranda warnings designed to protect against the inherent coerciveness of custodial interrogation. Some scholars and jurists view these rules as prophylactic. In this view, the rules go beyond what the Fourth and Fifth Amendments respectively require in order to prevent violations of those amendments. Whether to classify these rules as prophylactic is controversial, as is the authority of courts to fashion prophylactic rules at all. Were I writing today about judge-made prophylactic rules, I would now discuss the various opinions in the 2000 SCOTUS decision in Dickerson v. US (which confusingly referred to the Miranda warnings as a "constitutional rule," even as prior c

How Will Substantive Policies Change If Trump Stays in Office?

by Neil H. Buchanan   In my columns here on Dorf on Law and on Verdict over the last four years, I have insisted over and over again that people need to take seriously Trump's threat to the rule of law and especially to the peaceful transition of power.  Initially, I would say things like, "setting aside the threats of violence that are obviously present," but eventually those threats became too obvious to ignore.  Obviously, I am not happy to have been proven correct. The one thing that has surprised me is that Trump is doing everything I thought he would do, but he is doing it before election day.  I anticipated a nasty, racist, dishonest campaign with plenty of ugliness, but even I did not imagine that Trump would do what he has done this summer.  Once he saw how badly he was losing, however, he freaked out.  I will not give him the benefit of the doubt and say that he is acting based on an actual strategy, because I continue to believe that imaginings of his poli

Donald Trump's Racism is America's Racism

 By Eric Segall According to John O'Donnell, former President of Trump Tower Hotel and Casino in Atlantic City, Donald Trump once told him that, " Black guys counting my money! I hate it. The only kind of people I want counting my money are short guys that wear yarmulkes every day. … I think that the guy is lazy. And it’s probably not his fault, because laziness is a trait in blacks. It really is, I believe that. It’s not anything they can control.” In a 1997 interview in Playboy, Trump said, "the stuff O'Donnell wrote about me is probably true."  Writing in the Atlantic , Ibram X. Kendi recently observed that, " Americans see themselves—and their country—in the president. From the days of George Washington, the president has personified the American body. The motto of the United States is  E pluribus unum —'Out of many, one.' The “one” is the president."  Many democracies have a head of government, usually a prime minister, and a president who

The Dangerous Silliness of Trump's Suspension of Social Security Taxes

by Neil H. Buchanan   With the Democrats neurotically worrying about whether the latest blip in one poll or another means that all is lost or that Donald Trump's incitement of violence will "work" politically -- a neurosis that is part of an infinite feedback loop satisfying the press's endless need to fill space with hot takes and over-interpretation of minutiae, all in the service of turning "urban rioting" into this year's "but her emails" -- perhaps the only sanity-preserving move is to think about matters of actual policy substance.  At least, that is what I am betting on in my efforts to be able to sleep at night. To be clear, there is nothing more important right now than the way the supposedly anti-Trump media are conflating peaceful protests with violence and rioting, even when the problems that we are seeing are in substantial part a result of police escalation and pro-Trump provocateurs' opportunistic violence (all incited and e