Showing posts from July, 2021

Whose Court is it Now?

  by Michael C. Dorf It's almost August, and that means that next week I'll be participating in the annual Supreme Court Review sponsored by the Practicing Law Institute . If you need CLE credit, this is an informative and entertaining way to get it. As always, I'll be joining a star-studded set of panelists. In addition to counter-punching throughout the day, I have primary responsibility for talking about three cases that I and my co-bloggers have already discussed here at DoL . Accordingly, rather than preview my remarks on those cases, I thought I'd take this opportunity to preview my comments on the overview panel.  I'll take as my point of departure a recent CNN opinion essay  by Jeffrey Toobin. In it, Toobin argues that Clarence Thomas is the de facto Chief Justice of the current Supreme Court. Why? Toobin offers the following chain of reasoning: (1) The only thing that distinguishes the Chief from the Associate Justices is the Chief's power of assignment

Veganism, Year Thirteen: So Much Good News, So Much Bad

by Neil H. Buchanan   [Note on August 5, 2021: I have now added the Heller, Keoleian, and Rose piece to the list below.]   Each summer, somewhere near the date that I first decided to become a vegan (July 24, 2008), I write one or more of what I have come to call my veganniversary columns.  For those who might be interested, here are the links to previous years' columns: 2020 (plus followup ), 2019 (plus followup ), 2018 , 2017 , 2016 , 2015 , 2014 , 2013 , 2012 , 2011 , 2010 , 2009 , and the original announcement in 2008 (plus followup ).   With few exceptions, I tend to focus on the day-to-day issues that one deals with as a vegan: challenging conversations from family and friends (and even strangers, who are suddenly quite worried about my protein intake), trends in how easy it is to find restaurants with good vegan food (including, of course, the growing number of exclusively vegan restaurants), the favorable trends in the economics of veganism, and so on.   Often, these co

Between Tamago and Potemkin

  by Michael C. Dorf There's an episode of Curb Your Enthusiasm  in which Larry arrives at the new house of his manager Jeff and Jeff's wife Susie, who offers Larry the house tour  (NSFW: profanity). Larry declines: "No that's okay, I get it.  . . . You know, it's bedrooms, bathrooms, I get it." Susie (played by the great Susie Essman) is incensed, but of course Larry is right. If you move into a new home, you're excited about the closets, the bathroom fixtures, the bay window, etc., but to a visitor, it's all the same. So too with college campus tours. With one daughter about to start her sophomore year of college and the other about to start her senior year in high school, I have taken more than a handful of campus tours over the last several years. They are pretty pointless. As Larry might say, "I get it. It's buildings, the library, a statue, I get it." A few college campuses are distinctly ugly, but most have some stately old buildin

How Is It Possible That the Debt Ceiling Is a Thing Again?

by Neil H. Buchanan   " Just when I thought I was out ... they pull me back in! "  OK, I am certainly no Michael Corleone (as far as anyone knows), but this classic quote captures how I have felt in the last few days.   Earlier this year, I almost could not believe it when I saw that congressional Republicans had begun floating the idea of again using the debt ceiling to extort concessions from a Democratic president.  In the ensuing obligatory Verdict column on April 29, I wearily argued that Joe Biden might be the president who would finally put this all to rest.  Mostly, however, I hoped that the Republicans would not try to bring back their debt ceiling madness at all.  I am tired of the inanity of it. So much for that hopeful thought.  Last week, Mitch McConnell announced that Senate Republicans will not agree to adjust or re-suspend the debt ceiling before (or after) it is scheduled to come back to life on July 31.  Earlier today, I published a new Verdict column r

Partisan Politics, Legal Realism, and the Myth of the Unitary Executive

 By Eric Segall "Only in an Authoritarian Regime is the President Above the Law"                                                                                     Professor Victoria Nourse At the Law & Liberty Blog last week, Professor John McGinnis penned an homage to the Roberts Court decisions over the last few years invalidating how Congress has structured various administrative agencies. In a series of complicated cases, the Justices held that the President must be able to fire agency heads and other officials unconditionally and laws to the contrary, passed by the people's representatives, must give way. These opinions flow directly from the unitary executive theory developed by administrative officials in the Ronald Reagan Justice Department during the 1980's.  What makes these decisions so fascinating (and wrong) is that the Constitution's text does not  support such a view, there is no persuasive historical evidence underlying the theory, and as a

Addicted to Power, Allergic to Principle (a Dorf on Law classic)

Note to readers: Continuing our brief mid-summer break here on Dorf on Law , we offer this classic column from October 2016, during the last stages of the general election campaign.  In light of House Republicans' actions thus far in 2021, what I wrote about below is almost adorably innocent by comparison.  Sometimes, looking back provides a disquieting reality check.  -- Neil H. Buchanan     by Neil H. Buchanan   I have been doing everything possible not to write -- or even think -- about the new depths to which the Trump campaign has lowered this country.  What we now know about Donald Trump's actions, words, and attitudes toward women is somehow both shocking and completely unsurprising.  This is no longer about Trump being the most unqualified candidate ever to run for the presidency.  This is about human decency. A lot of Republicans know this.  It is hard to believe that it took the most recent outrage to convince some people to give up on Trump, but better la

Trumped Up Charges (a Dorf on Law classic)

Note to readers: The column below was first published just over six years ago, on July 13, 2015.  It is, as far as I can tell, the first column on Dorf on Law in which Donald Trump was the focus of analysis.  ( One of my columns the previous week mentioned him, but only in passing.)  Please enjoy this classic column, taking us all back to a more innocent time.  -- Neil H. Buchanan     by Michael Dorf   I begin with a confession. From fall 2002 through the summer of 2008, I lived in a building that had the word "TRUMP" displayed above each of the two main entries. It was one of a number of buildings that a real estate development group had built on the west side of Manhattan. My understanding at the time was that although Donald Trump was the front man for the developers, he put up only a small fraction of the money for the development, most of which came from other investors. And then the individual apartment units were sold, so that Trump owned virtually none of t

When Does Government Act Through Private Actors? Texas Private Attorney General Enforcement Against Abortion Providers & Trump's Suits Against Big Tech

  by Michael C. Dorf A new Texas law, S.B. 8 ., forbids abortions after six weeks of pregnancy. It's obviously unconstitutional under existing Supreme Court precedent. Whether the relevant precedents will remain on the books in a year remains to be seen. In the meantime, S.B. 8 is unusual in relying entirely on private enforcement. S.B. 8 expressly bars public enforcement. It gives to "any person, other than an officer or employee of a state or local governmental entity," the right to bring a lawsuit to enjoin forbidden abortions and to collect a bounty for abortions performed in violation of the law. As Dean Amar and Professor Mazzone explain in a recent  Verdict  column , the law contains that unusual enforcement mechanism for the obvious purpose of preventing doctors, clinics, and women from bringing lawsuits in federal court to categorically enjoin S.B. 8's enforcement. Instead, doctors or others sued under S.B. 8 will be relegated to raising the constitutional ri

What a Difference Six Months Make

by Neil H. Buchanan Six months ago today, Joe Biden took the oath of office and became President of the United States.  (He actually would have become president at noon that day without taking the oath, but no matter.)  At the time, the only reasonable emotion to feel was relief, especially because of the insurrection that had taken place only two weeks before.  Even setting that trauma aside, however, finally having Donald Trump out of office was a very big deal. Although I was tempted to devote today's column to describing an alternative time line in which Trump stayed in office, instead I will discuss what should have been obvious before Biden moved into the White House.  In particular, I want to explore why non-Republican pundits so often refuse to recognize the extremism of this millennium's version of the Republican Party.  This tendency has never made sense, and it is especially interesting (in a frustrating way) to look in the rear-view mirror at a particularly good exa

Telephone Pole Cameras and Long-Term Government Surveillance

by Matthew Tokson In a decision  issued a few days ago, the Seventh Circuit held that the government can warrantlessly use telephone pole cameras to constantly monitor any home for at least one and a half years. While the opinion was both thoughtful and thorough, with many citations to legal scholarship including my own, the holding is aggressively anti-privacy. It would permit the government to monitor any or all residences pervasively and at little cost, and eliminate the zone of privacy that typically surrounds the home.  Courts are split over pole cameras, and that split may soon deepen after the First Circuit rules en banc in a pending pole camera case. And the pole camera issue seems ripe for Supreme Court review, with relatively clear-cut facts and a form of surveillance that threatens the sanctity of the home. This post previews the potential future showdown over pole cameras by examining the Seventh Circuit’s decision and the broader issue of long-term video surveillance of th

Selective Prohibitions on Cruelty to Animals and a Thought on Targeting in Equality Cases

  by Michael C. Dorf My latest  Verdict column discusses a recent certiorari petition seeking to invalidate the application of a federal cockfighting ban to Puerto Rico. I argue that the Supreme Court should deny cert because the First Circuit rightly held that the ban falls within the power of Congress to regulate interstate or foreign commerce. That court did not reach the question whether, as applied to Puerto Rico, the law is also a valid exercise of the Territories Clause of Article IV, Section 3. I believe that it is, notwithstanding the suggestion by Justice Sotomayor (in a concurrence last year in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment ) that the 1950s Compact between the U.S. and Puerto Rico permanently divested the former of some of its power with respect to the latter. I think she's wrong about that, but regardless of one's views about the question, its awkward relation to the Commerce Clause issue makes the cockfighting ca

Reinstatement, Coups, and the Ongoing Threat of Right-Wing Violence

by Neil H. Buchanan   Apparently, the turnaround time for the trade book market is roughly six months, as we are now inundated with high-profile publications that offer accounts of the end of the Trump presidency.  Mid-summer has typically been a news desert, even while Donald Trump was in the White House; but not this year.  Now, we are being invited not only to immerse ourselves again in the trauma of those four years, but we are being overwhelmed with previously unreported, stunning stories showing that things were even worse than we thought. I am not going to try to keep the various books straight here, because readers can quickly and easily cross-check anything they find interesting.  In any case, I did read a book excerpt that lays the blame for Trump's election lies at the feet of a soused Rudy Giuliani on election night, with the soon-to-be-disbarred ex-mayor telling Trump simply to declare victory.  It is a bit much when the authors quote someone who bizarrely compares G

Normalizing the Little Lies That Support the Big Lie

by Neil H. Buchanan   I confess to remaining interested in news about a range of policy and legal matters.  Indeed, I still write about many of them, as I did last week in discussing the first indictments from the Manhattan DA of Trump associates.  Is it good news that, say, the Democrats seem to have agreed to move forward with an ambitious infrastructure plan via reconciliation?  Sure.  Should we still care about income redistribution , the environment, and everything else?  Yes. Even so, all of these issues must increasingly be seen as a matter of watching the proverbial rearrangement of deck chairs on the Titanic.  Whatever Democrats accomplish on policy now will not matter -- and most of it will be reversed in short order -- unless democracy is saved.  And although I salute the Democrats in the Texas legislature for their ingenuity and energy in fighting against the latest round of anti-democratic legislation in their state, they are the first to admit that their efforts are me

Donald Trump's Constitution: First Amendment Edition

  by Michael C. Dorf In the fall semester, in addition to my usual first-year survey course in constitutional law, I'll be teaching an upper-level seminar titled "Donald Trump's Constitution." Here's the brief version of the description I posted for students considering enrolling: Donald Trump’s Presidency raised many issues about the meaning and wisdom of the Constitution. This seminar will explore some of them, framed by two background questions: (1) To what extent was Trump and the movement he led (and continues to lead) a product of the U.S. constitutional system versus a local manifestation of a global phenomenon? (2) To what extent did Trump’s break with various norms expose weaknesses in the constitutional system, or do all constitutional systems depend for their survival on good-faith compliance with extra-legal norms? I'm still tweaking the reading list, but given the latest collision between Trump and the Constitution--his absurd First Amendment clas

Sovereign Immunity, Judicial Aggression, and the Rule of People not Law

 By Eric Segall The competition is tough, but the Eleventh Amendment still might be the most misunderstood amendment to the Constitution.                                                                                                                    Will Baude & Steve Sachs   When can states be sued in federal court for violating federal law, assuming a valid cause of action under either a statute or the Constitution? This question has major implications for our federalist system. The possible answers are always, never, or sometimes, and the stakes of the answer are incredibly high. Too much accountability could expose the states to federal control in ways that could damage their finances and sovereignty, but too little accountability could jeopardize the supremacy of important federal laws and the Constitution. Sadly, the Supreme Court’s answer to this important question (sometimes) is incoherent and terrible policy as well. This term, in Penn East Pipeline v New Jersey , the C

The New Crazy and the Old Crazy -- Attacks on Democracy and Attacks on Taxes

by Neil H. Buchanan     As it happens, this week was the tenth anniversary of the publication of my first column on Verdict .  As frequent readers of Dorf on Law know, Verdict publishes bi-weekly columns by a roster of columnists that includes Professors Sherry Colb and Michael Dorf, and we often use our Dorf on Law space to riff on some aspect of our Verdict columns.  Thus it shall be today.   In today's column, " The Intensifying Madness on America’s Political Right: A Decade-Long Perspective ," I note that my first Verdict column discussed the debt ceiling crisis that the new Tea Party-fueled House Republican majority was then in the process of creating.  I had already written multiple pieces on Dorf on Law discussing the debt ceiling, and I was genuinely amazed that the Republicans had rushed into that precinct of Crazytown, given the dangerous and self-defeating nature of their strategy -- to say nothing of how much it annoyed their moneyed patrons. But my pur

Condo Owners and Climate Myopia

  by Michael C. Dorf "Success has many parents, but failure is an orphan," goes a familiar adage made popular by President Kennedy (though its actual provenance is more complex ). The sentiment is correct as a description of people's eagerness to boast and reluctance to accept blame. As an attribution of responsibility, however, it is false. Failure, especially catastrophic failure, is typically the result of many people's missteps. That is no doubt true about the tragic collapse of Champlain Towers South in Surfside, Florida. Investigations now underway will determine whether lax government oversight was partly to blame. To the extent that global warming contributed to the conditions that made the building vulnerable, humanity itself bears responsibility for our failure to act sooner and more aggressively to mitigate the damage. (More about that in my conclusion.) For now I want to focus on another locus of responsibility: the very nature of a condominium association

Stability as Impediment to Democracy

  by Michael C. Dorf My latest  Verdict column picks up where Prof Buchanan and I  each left off last week in talking about the end-of-Term SCOTUS cases. I argue in the column that the outcomes of  Americans for Prosperity Foundation (APF) v. Bonta   and  Brnovich v. Democratic National Committee  are not especially troubling but that each case is highly problematic for what it portends about where the Court's conservative super-majority is willing to go. APF portends the potential invalidation of campaign finance disclosure obligations, while Brnovich heralds further enthusiastic SCOTUS acquiescence in GOP-state-legislature-led suppression of minority and Democratic voters. That said, as Prof Buchanan, other observers, and I have been warning for months now, the mortal threat to American constitutional democracy is less from laws that restrict voting than it is from the state laws that assign to state legislative officials themselves or reliable Republican flunkies the power to

TrumpWorld v. Those Pesky, Pesky Tax Laws

by Neil H. Buchanan     Last week, the Manhattan DA's office (working with the New York State Attorney General's office) charged various entities in TrumpWorld with a large number of felonies, and surely there are more to come.  Some of the charged crimes involve tax fraud, which is directly in my academic remit (as the Brits say).  The contours of Donald Trump's response -- not exactly a "defense," at least in any legal sense of that word -- are now becoming clear, and they are unsurprisingly absurd. I will begin here with an overarching nontax issue relevant to the indictments, with the remainder of the column devoted to tax matters.  Bottom line: the charged crimes are serious, the crimes themselves are in no way sophisticated or borderline cases, and pursuing these charges is essential to the rule of law.

Originalism as Myth

 By Eric Segall Professor Stephanie Barclay is an associate Professor of Law at Notre Dame. She represents a newer, younger breed of originalist scholar and recently explained why she favors originalism in a longish op-ed in Utah's " longest-running news organization...and the state’s oldest continuously operating business."   I've met Professor Barclay and she is a charming, smart, erudite academic who has written excellent scholarship about law and religion and other constitutional matters. So there is nothing personal when I say that her op-ed reflects accurately the current sorry state of dominant thought among many originalist academics. Her op-ed shows how originalism these days is chock full of myths.

Voting Rights and Partisan Power Grabs

by Neil H. Buchanan     Suppressing votes has become the Republican Party's signature obsession, continuing a decades-long pattern of denying the franchise to people of color and others who might dare to try to elect Democrats.  Although voter suppression is in no way new for Republicans, the Trumpified version of that party has now also decided that they will empower their own partisans simply to set aside disappointing election results, passing laws that remove neutral arbiters from the positions that determine who received more votes (out of those that Republicans will allow to be cast in the first place). This is a catastrophe of the highest order, and there are no dissenters in the national Republican Party.  Senator Susan Collins, who shocked everyone by retaining her seat in the 2020 election, is supposed to be the least extreme Republican in Congress.  That might well be true, but she is delivering talking points that would make Strom Thurmond beam with pride, arguing that

What Was/Is at Stake in Brnovich?

  by Michael C. Dorf I don't usually post "hot takes" on Supreme Court opinions, preferring to spend at least several hours and often several days to digest them before blogging about them. I'll depart from that practice today, aware of the risk that I'll therefore make more mistakes than usual. So herewith are my hot takes on Brnovich v. DNC : (1) The not-just-ideological-but-partisan division in this case (and in the other case handed down today, Americans for Prosperity Foundation v. Bonta ) will substantially undercut the narrative that had been emerging of a Court that was taking pains to forge cross-ideological alliances. For example, this NY Times article a week and a half ago was headlined "The Supreme Court’s Newest Justices Produce Some Unexpected Results." The sub-headline was "In the term so far, including two major decisions on Thursday, the court’s expanded conservative majority is fractured and its liberals are often on the winning s