Showing posts from April, 2021

Petty Sticklerism That Fortuitously Benefits An Undocumented Immigrant is Still Petty Sticklerism

  by Michael C. Dorf To qualify for discretionary adjustment of status to be able to remain in the U.S., a federal statute states that deportable non-citizens must show, among other things, that they have "been physically present in the United States for a continuous period of not less than 10 years." The same statute says that the clock stops running once the non-citizen receives "a notice to appear" containing various items of information. Because Augusto Niz-Chavez received some of that information in one mailing and the rest in another, he argued that receipt of neither mailing constituted a notice that sufficed to stop the clock, and thus he satisfied the 10-year continuous presence requirement. That argument is ridiculous. Nonetheless, six justices bought it. Yesterday, Justice Gorsuch--joined by Justices Thomas, Breyer, Sotomayor, Kagan, and Barrett--wrote an opinion for the Court in  Niz-Chavez v. Garland   holding that a notice to appear means a single not

False Equivalence, Bothsidesism, and the Confusions of Being a Left-Behind Republican

  by Neil H. Buchanan     [Note to readers: My latest Verdict column, " Will Biden Finally Neuter Republicans’ Debt Ceiling Demagoguery? " was published this morning.  This is one of those occasions where I am departing from our usual practice by writing my Dorf on Law column on a different topic entirely.  Nonetheless, I do hope that some readers here will click through and read that other piece as well.] It has become a cliche to refer to "tribalism" in American politics, a description that has become commonplace because there is a great deal of evidentiary support for it.  Because the Republican tribe has moved into such extreme territory over recent years, however, the term "cult" is unfortunately the best description of what is happening on that side of the divide. Even so, the notion of all politicians being part of one tribe or another does capture an element of political partisanship that long predates recent unpleasantness.  Even when there was

Would Justices Alito and Thomas Have the Supreme Court Hear Minor State Law Cases?

by Michael C. Dorf On Monday the Supreme Court denied leave to Texas to file a lawsuit against California. The suit sought to challenge  California's refusal to fund or sponsor travel to states engaging in various forms of "discrimination against lesbian, gay, bisexual, and transgender people." Texas contended that in so doing, California violates the Privileges & Immunities Clause of Article IV, the dormant Commerce Clause, and the Fourteenth Amendment's Equal Protection Clause. These claims are highly dubious, given that states acting in their proprietary capacities have much greater freedom to act than when acting as sovereign regulators. Nonetheless, the Court's denial of leave occasioned a dissent by Justice Alito , joined by Justice Thomas. That dissent expressed no view on the merits but instead repeated their previously expressed claim that the Supreme Court lacks discretion to decline to hear state-versus-state cases that fall within its original jur

Threats of Violence and State-Level Republicans' Efforts to Subvert Future Elections

by Neil H. Buchanan   They are still counting ballots in the 2020 U.S. presidential election.  Correction: They are still re counting some ballots, the "they" in this case being Arizona's Republican state senate, using a completely opaque process run by a private contractor with no experience in auditing elections (and run by a man who has been pushing conspiracy theories of the "stop the steal" variety).  Oh, also, Arizona's votes have already been recounted multiple times, and the voting machines have been tested and found to have worked flawlessly. This will all play out in a very predictable way: The not-really-auditors will announce with some degree of confidence (most likely absolute certainty) that the vote count was wrong or questionable, the losing candidate will then claim that this was true in at least six states, and Republicans nationwide will thereafter further intensify their efforts to suppress votes and allow themselves to take control ove

Constitutional Fun and Despair: A Week in the Life of a Law Prof

By Eric Segall Last week was an interesting month. I lived through many of the things that make my job so rewarding and so frustrating all at the same time.  Monday : I have this little podcast called Supreme Myth s which I started during Covid-19 because I was feeling so detached from my friends and colleagues outside Atlanta. My guest last week was New York Times reporter Emily Bazelon, whom I have long admired for her sharp and entertaining views on the Supreme Court. She did not disappoint. We talked about law and politics, legal realism, mass incarceration, and at the end the rumors of Justice Barrett's $2 million book deal in which book, according to the internet , she is going to talk about how judges should leave their feelings behind when deciding cases. Sigh. Emily made the clever observation that Justice Gorsuch, who also wrote a book shortly after being appointed to the Court, did not make anywhere near that much money, and she wondered how he was feeling about that. Sp

Don't Let Tucker Carlson Shift the Overton Window on Police Reform

by Michael C. Dorf At the height of the racial justice protests last summer, many activists were demanding that states and localities "defund the police." Although that phrase has no universally agreed upon meaning, virtually no proponents of defunding the police advocate anarchy. Rather, they would shift many of the responsibilities now undertaken by armed police officers to unarmed social workers and others. They would also decriminalize (or in some jurisdictions, further decriminalize) drugs and various other matters, in keeping with a broader program of reducing the role of the carceral state while increasing social support for neglected communities. None of these ideas is especially radical or even very new. For example, twenty years ago, Prof Colb proposed eliminating traffic stops for minor offenses as a means of limiting both racial profiling and the opportunities for deadly police/civilian confrontations. The movement for drug decriminalization is even older. So are

The Habits of Bothsidesism: A Bizarre Defense of Georgia's Voting Law from Someone Who Should Have Known Better

by Neil H. Buchanan   After a cataclysm, there is an understandable urge to return to whatever felt like normal in the before-times.  Unfortunately, some of those normal things were bad habits to which we should not want to return.  Although I could be talking about how people will act in a post-pandemic world, I am instead thinking about the post-Trump-cataclysm world of politics and commentary. In both the pandemic and during Trump's time in Washington, people do/did things that they were absolutely unhappy about doing.  No one wants  to wear masks and social distance, to stop taking trips or going out to eat.  Perhaps a few people do not mind or are not affected by any of that, but certainly millions upon millions of people do things differently, because the threat to the world is too great.   For a much smaller number of people, the Trump presidency caused them to do things that they never could have imagined.  Journalists were calling lies lies, threatening their self-image a

In Politics, Democrats -- and only Democrats -- ask: What’s the Point of Winning?

by Neil H. Buchanan We no longer see as much of the "Democrats in disarray" trope in U.S. political discussion, and for good reason.  Paul Krugman goes so far as to assert that Democrats are "a party that is far more comfortable in its own skin than it was a dozen years ago."  One might even describe them as -- what word am I searching for? -- confident .   True, the latest media trope (especially in Washington Post headlines) is "Some Democrats worry that ____," where the blank is variously "... their current popularity might not last," or "... the Republicans' attack lines might stick," or whatever; but that is merely because certain reporters and editors are addicted to painting Democrats as perpetually in a defensive posture.  It is an assumption supported by decades of reality, but it is still dreary and lazy in the current environment. Not entirely, however.  After all, even though Democrats have been remarkably unified so

Originalism's Discontinuity Problem

  by Michael C. Dorf There are a great many things wrong with the Sixth Circuit's recent en banc opinion in Pre-Term Cleveland v. McCloud , which rejected a facial challenge to an Ohio law forbidding doctors from knowingly performing abortions on women who have decided to have the abortion based on a Down syndrome diagnosis. The lead opinion by Judge Batchelder concludes that the law doesn't burden the abortion right recognized in Roe and preserved by Casey, Whole Woman's Health , and June Medical --even for women seeking pre-viability abortions -- because the woman can still obtain one, even on the basis of a Down diagnosis, by not revealing her reason to her doctor. Three separate concurring opinions tendentiously describe the Ohio law as combating "eugenics." As Professor Colb explained on the blog last week, the use of that term is offensive; the express comparison to the Holocaust drawn by Judge Griffin is disgusting. I don't have anything to add about t

Serious Court Reform: Partisan Balance is the Only Way Out

By Eric Segall The Supreme Court of the United States plays much too large a role in our nation's politics. The validity of varying state and federal laws on abortion, gun control, campaign finance reform, affirmative action, and numerous other social, political, educational, and economic issues should not be determined by a majority of unelected judges sitting in the nation's Capitol. This institution we call a Court (which isn't one) is unique in all the world and is emphatically not the court the framers thought they were creating. The most important piece of Founding-era history on the nature of the Court was written by Alexander Hamilton who in Federalist 78 said, among other things, the following: The courts were designed to be an intermediate body between the people and the  legislature, in order, among other things, to keep the latter within the limits assigned to their authority... It therefore belongs to them to ascertain [the Constitution's] meaning, as well

Knowingly Performing Down Syndrome Abortions Is Not "Eugenics"

By Sherry F. Colb Earlier this week, in Preterm Cleveland v. McCloud , the U.S. Court of Appeals for the Sixth Circuit, in an en banc  opinion by Judge Batchelder, upheld an Ohio law prohibiting doctors from knowingly performing abortions for women choosing the procedure because of their belief that the fetus has Down Syndrome (DS). Though the majority opinion contains no references to “eugenics,” several of the concurrences do. This post will suggest that the eugenics claim is not only unconvincing but profoundly offensive. It may be that invoking the specter of eugenics is easier than acknowledging that with Trump’s three Supreme Court appointments, laws prohibiting one or another kind of abortion will survive no matter what the precedents say. To quote Justice Marshall , “Power, not reason, is the new currency of this Court's decisionmaking.”

Republicans and Democrats Are Wrong About Taxes and the Infrastructure Bill, But I'm (Mostly) OK With That

by Neil H. Buchanan     Having overseen the surprisingly smooth passage of the COVID relief act earlier this year, the Biden Administration quickly unveiled its next major piece of legislation.  The bill has a generic official name (" The American Jobs Plan "), but everyone in both parties is simply calling it the infrastructure bill.  As I will explain shortly, that label is misleading in a few very important ways. Earlier today, I published a column on Verdict in which I responded to the Republicans' attempts to convince people that the infrastructure bill is not about infrastructure at all.  Because it is the core of their job description, writers at reactionary think-tanks have been lying through their collective teeth, claiming that only some tiny percentage of the spending in Biden's proposal is for "real" infrastructure.  As I explain in the piece, that this is nonsense has not stopped the mainstream "tough interviewers" on chat shows, in

Manchin Channels Chamberlain: Will We Have Peace in Our Time in the Senate?

by Neil H. Buchanan Last week, I laid out a plan to give Senator Joe Manchin some wiggle room regarding the filibuster, which he had defended up to that point with varying degrees of fervor.  The unremarkable premise of my column was that politicians who say, "I will never do X," can still do X at a later date, relying on any number of cover stories.  My specific suggestion was that Manchin could pull a trick play from Mitch McConnell's book and -- just as McConnell had done during the debt ceiling debacles during the Obama years -- vote to suspend and then reinstate the filibuster.  "See, I didn't vote to eliminate it, or even change it.  It still exists!" At about the same time that I hit "Publish" on that column, The Washington Post was finalizing an op-ed written by Manchin, which they ran under the headline: "Joe Manchin: I will not vote to eliminate or weaken the filibuster."  It turns out that I am more of a cockeyed optimist t

Biden's SCOTUS Commission Apparently Lacks Authority To Make Recommendations And Is (Way) Too Large

  by Michael C. Dorf Last week, President Biden fulfilled a campaign promise to create a commission to investigate possible reforms of the Supreme Court. In today's post, I'll offer a few thoughts about the commission. As I read the Executive Order  establishing the commission, there is no authority to make recommendations. The EO tasks the commission with soliciting public input, meeting, and producing a report that summarizes the background, history, and current debate over various reform proposals, presumably including but not specifically mentioning Court expansion. The one provision of the EO that comes closest to authorizing a recommendation requires that the report contain "[a]n analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals." I suppose that the commission could read that authorization expansively, treating "analysis

The Roberts Court, First Amendment Fanaticism, and the Myth of Originalism

 By Eric Segall I’m probably the most aggressive defender of the First Amendment. Most people might think that doesn’t quite fit with my jurisprudence in other areas.… People need to know that we’re not doing politics. We’re doing something different. We’re applying the law.                                                                                                                   Chief Justice John Roberts John Roberts became the Chief  Justice of the United States Supreme Court on September 29, 2005. This term will make the 15th anniversary of the Roberts Court. During that time some important constitutional doctrines stayed more or less the same (abortion and affirmative action) and others changed dramatically (the Spending Power,  the Second Amendment and voting rights). But by a large margin, the Roberts Court generally and the Chief personally have taken the first amendment's free speech clause and turned it into an aggressive tool to impose the Court's conservative

Why Second-Degree Murder is the Maximum Charge for Derek Chauvin--and Some Thoughts on the Broader Issue of Gaps Between the Law and Public Understandings

  by Michael C. Dorf Someone who is not a lawyer (but is super smart and very well educated) recently asked me why Derek Chauvin wasn't charged with first-degree murder, given the evidence that has been thus far presented making pretty clear to most observers (including both the questioner and me) that Chauvin intended an act--placing and keeping his knee on George Floyd's neck/throat--that he knew would likely lead to Floyd's death. Even if Chauvin did not originally intend to kill Floyd and even if he did not know at the outset that the course of action on which he was embarking would lead to Floyd's death, as the encounter progressed it would likely have come to Chauvin's attention that Floyd was in grave danger, and yet Chauvin persisted. Or at least so it seems a jury could reasonably conclude beyond a reasonable doubt that Chauvin acted with the kind of intent or knowledge sufficient to prove intentional murder. And indeed, Chauvin does stand accused of intent

Would Americans Object If Billionaires (Partially) Paid for Social Security?

by Neil H. Buchanan Today, I thought I might take a short break from despairing about the Republicans' apparently unstoppable efforts to end constitutional democracy in the United States.  Thinking about substantive policy issues is a good palate cleanser, and I had the pleasure earlier this week of presenting some ideas about the American retirement system at the Tax Policy Workshop Series at Duke Law School (via Zoom, unfortunately).  The convenors, Professors Rich Schmalbeck and Larry Zelenak, were gracious hosts, and their twelve seminar students were engaged and offered thoughtful comments and questions. One series of questions from the students has inspired me to write down a few thoughts about the nature of political buy-in for government programs.  In what some pundits are calling a breakthrough moment in the U.S., voters are at long last rejecting Ronald "government is not the solution to the problem; government is the problem" Reagan's toxic legacy in fa

If Only Mitch McConnell Could Show Joe Manchin How to Foil Mitch McConnell

by Neil H. Buchanan Although Republicans in 2021 have taken "performative politics" into uncharted territory (just ask Mr. Potato Head), politics has always been in large part about form and not substance.  The point is arguably best illustrated with an extreme counterexample.   In 2009-10, the Obama Administration committed what in hindsight looks like political malpractice by giving everyone a tax cut but designing it specifically so that it would be all but invisible.  Why?  Some convincing economic research suggested that many people are likely to save big chunks of a tax cut, whereas the entire point of the Obama stimulus plan was to get people to spend.  We did not want people saying, "Oh, I'm getting $300 from the government, so I'll stick that in the bank for a rainy day," or "I'll use it to pay off some debts."  Instead, the maximum impact would come from having a few extra dollars show up in every paycheck, which people would then sp

GOP Obstructionism's Tragic Results

  by Michael C. Dorf The For the People Act (H.R. 1) --a bill that would expand voting rights, curtail various state-level measures to disenfranchise minority and urban voters, restrict partisan gerrymandering, reform campaign finance, and more--passed the House of Representatives last month without a single Republican vote of "yea. " Its fate in the Senate looks dubious, because unlike the American Rescue Plan Act  that Congress passed last month, HR1 is not a budget measure that can be accomplished via the Reconciliation procedure--which requires only a simple majority to end debate. HR1 would need to garner support for ending debate from at least ten Republican Senators, which is not going to happen, or would need all fifty Democrats to change the cloture rule in some way. I'll have more to say about the filibuster in the coming weeks and months, but today I want to explore an especially pernicious effect of the unified Republican opposition to popular spending measure

Race, Caste, and the Myth of American Exceptionalism

  By Eric Segall Isabel Wilkerson’s book Caste: The Origins of our Discontent , has made a huge impact on the study of race in America. When it was published in 2020, the New York Times gushed that it was an “instant American classic and almost certainly the keynote nonfiction book of the American century thus far.” Most other reviewers agreed . Wilkerson compares American slavery and Jim Crow to India’s Caste system as well as the Nazis’ treatment of the Jews. Although the comparisons are far from perfect, the analogies still reveal important truths about America both yesterday and today. The book’s greatest strength is its beautiful prose describing almost unimaginable evil. Wilkerson’s descriptions of India and Germany are dramatic enough, but the stories she recounts of American slavery, lynching, segregation, and even modern-day caste (read racial) prejudice are brutal. Wilkerson’s fluid, conversational, storytelling is simply mesmerizing. But there is much more to Caste than th

How Do We Defeat Demagogues?

by Neil H. Buchanan Demagoguery is hardly a new problem.  Even so, it waxes and wanes in different places at different times, and the political right in the United States is now in the midst of a full-on embrace of the worst excesses of demagogic hate-mongering.  Can it be defeated?  Not completely, of course, but it should be possible to minimize its damage and send it back into hibernation. I hope that that is true, in any case.  The problem with demagogues is not merely that they can convince surprising numbers of people to believe harmful nonsense in order to win votes.  The worst kinds of demagogues parlay their initial success by abusing their power in ways that will make them immune to future challenges.  Some demagogues are so popular that the public largely supports their efforts to subvert the political system.  Even they, however, are risk-averse enough to lock down the system to protect themselves from any changes in public sentiment -- not only the possibility of a truly

Testiness at the First Annual Conference on Originalismism

  by Michael C. Dorf Yesterday I "attended" and moderated a panel at a fascinating Zoom-based conference hosted by the three law schools with the closest connection to originalism in constitutional interpretation: Georgetown Law Center, the Antonin Scalia Law School at George Mason University, and the University of San Diego School of Law. Because the focus of the conference was the study of originalism rather than originalism itself, the conference was titled "Launching Originalismism." As co-conveners Professors Randy Barnett, Michael Rappaport, and Ilya Somin wrote on the conference homepage : For many years, constitutional scholars debated whether to give dispositive weight to the Constitution's original meaning. That debate is over. Originalism won. The question has now shifted to how to do so, which is a question about the boundaries of originalism. This first-of-its-kind conference brings together originalist scholars of all stripes, as well as a few stu