Showing posts from August, 2023

Constitutional Gaps for Addressing Senators' Incapacity

Yesterday Senate Majority Leader Mitch McConnell froze for an extended period for the second time in less than two months. It is possible that McConnell is experiencing only intermittent effects of the concussion he suffered after a fall in March; perhaps these episodes do not reflect on his ability to continue to perform his duties. But it is also possible that McConnell is in the throes of a worsening disability. Meanwhile, Senator Diane Feinstein appears to be substantially more incapacitated than McConnell. What can be done to address the issue of a Senator who is unable to do the job? The Constitution includes no mechanism for a Senator to step down temporarily. The operative provision is contained in the Seventeenth Amendment. It states: When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to

Diversity, Racial Balancing, and the Experience of Race

The immediate impetus for my  latest Verdict column  is the news that Tirien Steinbach is no longer the associate dean for Diversity, Equity and Inclusion (DEI) at Stanford Law School--perhaps because of her role in the kerfuffle over the disruption of Judge Kyle Duncan's speech by some students last spring. Given the right's leveraging of the Duncan speech as part of its anti-woke crusade against DEI more broadly, my column ponders whether colleges, universities, companies, and other institutions subject to federal anti-discrimination law might be considering disbanding or rebranding their DEI initiatives. The Verdict column also addresses the question whether DEI efforts remain legal following the SCOTUS ruling in Students for Fair Admissions (SFFA) v. President and Fellows of Harvard College . I conclude that while some programs may now be unlawful, it remains legal to pursue DEI through race-neutral means. Put simply, SFFA held that diversity is no longer a compelling int

The Moral Imperative to Teach About America's Racial Problems, Past and Present

The most recent locus of murderous racism is Jacksonville, Florida, where this past Saturday a 21-year-old White man used a weapon onto which he had scrawled swastikas and other hateful messages to kill three Black people.  I should be clear, however, that I am not truly sure that that is the "most recent" event that would fit this description.  After all, it has been three full days, and this is the United States in 2023, where hatred and White nationalist violence are now the depressing norm. In any event, imagine for a moment that Florida's governor was not running for President and had not been feeding and intensifying reactionary prejudices for the last four-plus years.  Yes, it is a stretch to ask ourselves to picture a version of that man without his defining political motivations, but if we try, we would be left with a person who has shown no sign of being a person in the sense that we usually define personhood: capable of empathy, moved by unselfish thoughts, lo

What it means to say that Section 3 of the 14th Amendment is self-executing

Does Section 3 of the Fourteenth Amendment "automatically" disqualify Donald Trump from the Presidency in virtue of his having "engaged in insurrection or rebellion" after having "taken an oath, as . . . an officer of the United States . . . to support the Constitution?" So say Professors  William Baude and Michael Paulsen , as well as Judge Michael Luttig and Professor Laurence Tribe . Summarizing the Baude/Paulsen conclusion, Judge Luttig and Professor Tribe state that "Section 3 requires no legislation, criminal conviction, or other judicial action in order to effectuate its command. That is, Section 3 is 'self-executing.'" A couple of weeks ago, my co-blogger Professor Eric Segall questioned  what he deemed the pervasively originalist methodology of Professors Baude and Paulsen, noting, among other things, that, in the very year that the Fourteenth Amendment was ratified, Chief Justice Salmon Chase ruled that Section 3 is not self-exe

The Strange Case of the One-Good-Moment Conservative

During a phone call a couple of weeks ago with Professor Dorf, I brought up a then-recent New York Times op-ed by Jack Goldsmith, who is currently a professor at Harvard Law School and was formerly a high-ranking official in the George W. Bush Administration. Titled " The Prosecution of Trump May Have Terrible Consequences ," the piece was a bizarro-world argument that Republicans will become vengeful and unhinged because of what is happening to Trump. I repeat: " become ."  I am not joking.  Wrapping up an excellent critique of Goldsmith's piece, Jonathan Chait wrote: Goldsmith’s op-ed is like a documentary run through the film projector backward. Jack Smith prosecuting Trump leads to Donald Trump coming to power as deranged crowds bray for the imprisonment of his opponent. He is right that the outcome from Smith’s prosecution will be terrible. But worse than the alternative? How could it be worse? Nicely put.  Goldsmith's entire piece is simply

Eight (or Nine?) Republican Presidential Hopefuls in Search of a Federal Abortion Policy

Donald Trump's principal reason for skipping  last night's Republican Presidential primary debate was that, as the clear frontrunner, he would be the target of criticism from everyone else on the stage. That might or might not have been true. Vivek Ramaswamy, as the closest thing to Trump's surrogate in the debate, did attract more attacks than anyone else on stage. But it was much easier for the other candidates to criticize Ramaswamy than it would have been to go after Trump himself--both because Trump is a more effective mean girl in these settings and because going after Trump himself would risk alienating his base in a way that going after Ramaswamy did not. In any event, Trump's absence enabled him to avoid talking about abortion. What the other candidates said about the topic -- from just after the 26-minute mark until just before the 37-minute mark -- revealed the difficulty the issue poses for them in running for the nomination from a party with a primary elect

Law Professors, Legal Punditry, Donald Trump, and What's an Academic to Do?

By Eric Segall I had an existential crisis in the Spring of 2012, just a few months before the hugely important Affordable Care Act case, NFIB v. Sebelius . After researching the issue for months, I reluctantly came to believe that Justice Elena Kagan had to recuse herself from the case. She was the United States Solicitor General when the challenges to the statute were being resolved by the lower courts. Her deputy Neil Katyal was in charge of the cases in the lower courts. A justice simply can't or shouldn't sit on a case she handled below.  Kagan said she isolated herself from all the litigation while she was the Solicitor General and I believed her, but so what? Why did she isolate herself from this one case (she recused in over two hundred other cases presumably because her office handled the litigation). In any event, I was convinced I was legally correct but it made me sad. I wanted the Affordable Care Act to be upheld and if she recused in what would likely be a 5-4 cas

Smearing DA Fani Willis as Proof of One's ... Reasonableness?

Are the Fulton County criminal charges against Donald Trump redundant, mere "piling on" by an ambitious local prosecutor who should have left the heavy lifting to the feds?  It should not be surprising that some people on the right would have us believe as much.  For a different reason, it is sadly predictable that an unimaginative non-Trumpist would think herself clever for taking Trump's side -- reluctantly, of course, oh-so-so reluctantly. Last week, I criticized a tendentious  piece by Ruth Marcus, the Deputy Editorial Page Editor for The Washington Post , who offered a contrarian argument in her paper that the Georgia case was "one too many."  The short version of her argument was that "[a]t some point, it becomes unfair — yes, even to Trump — to go state by state."  Why?  Because the interests of every state are already supposedly being well represented by the federal case in DC, so bringing cases in all seven states where Trump's conspira

Congressional Power to Waive or Modify Supremacy Clause Immunity

In my essay on Friday , I analyzed the Federal Officer Removal Statute  (FORS) and its relation to the principle that federal officers acting within the scope of their duties may have immunity from prosecution for state offenses simply in virtue of the Constitution's Supremacy Clause. In today's essay, I'll offer a few thoughts about where that principle comes from and what power Congress has to change it. To be clear, there is no chance that the Republican-controlled House, the just-barely Democratic-controlled Senate, and President Biden will agree on legislation changing the nature of any immunity concerning the prosecution of Donald Trump and his alleged co-conspirators. But it is possible that a future Congress could attempt to change the law governing Supremacy Clause immunity--either with respect to cases like Trump's or more broadly. As a preliminary matter, I want to clarify a point I made on Friday. In order for a case to be removable from state to federal cou

Federal Officer Removal and Immunity to State Prosecution

Almost immediately following the Georgia indictment filed against Donald Trump and his various alleged co-conspirators, one of those alleged co-conspirators, Mark Meadows, sought to remove the case to federal court . On Wednesday, Federal District Judge Steve C. Jones issued an order scheduling a hearing on the Meadows removal motion for Monday August 28. DA Fani Willis has until Wednesday August 23 to file a written response to the motion if she so chooses. In today's essay, I'll address some of the key questions likely to arise at the hearing. The federal officer removal statute ("FORS") allows a federal officer who is civilly sued or criminally prosecuted to have the proceedings transferred to federal court upon satisfying two criteria. First, as set forth expressly in the FORS, the officer must have been acting "under color of" their office. Second, pursuant to the Supreme Court's holding in Mesa v. California (1989) and the cases the Court cited