Showing posts from April, 2024

The Fragility of Democracy: Canada Edition

If Canada eventually falls in line with the increasingly large group of countries that are abandoning pluralism and simple decency, will it be because of a strong local proto-fascist movement or a weak defense of an open and welcoming society?  At this point, the answer looks more like the latter.  Either way, however, how likely is that very bad outcome? Six weeks ago, the headline of one of my Dorf on Law columns asked somewhat cheekily: Is Politeness a Reliable Defense Against Fascism?   My focus there was on the danger that US-like reactionary grievance politics would take hold in Canada, where I have now been living for almost ten months (and will continue to live for at least the next year and a half).  There and in a column from 2022, I noted that there is a core of hard-right political operatives/trolls here who mirror -- and seem to actively collaborate (or collude) with -- Americans of the "anti-woke" subspecies. As I noted in last month's column, most Canadia

Preemption Via the Spending Power in the Idaho Abortion Case

As John Oliver says (accurately) at the top of each episode of Last Week Tonight , it has been a busy week. Indeed, last week was so busy with campus protests and Trump's immunity case, that despite writing a Verdict column and three blog posts ( here , here , and here ), I did not have an opportunity to discuss any developments in Trump's NY hush-money trial, the Harvey Weinstein ruling of the NY Court of Appeals, or Wednesday's SCOTUS oral argument in the Idaho abortion case . Today I begin to try to catch up. I expect to have something to say about the hush-money trial and the Weinstein ruling at some point. Today's essay is part 1 of my discussion of the Idaho case, focusing on the question of Congress's  authority to preempt state law via the Spending power. Part 2, which will come later this week, will analyze Justice Alito's suggestion that because the statute at issue in the Idaho case--the Emergency Medical Treatment and Active Labor Act (EMTALA)--uses

A SCOTUS Firehose in Trump v United States

After rage-tweeting throughout the oral argument in Trump v. United States , I find myself somewhat at a loss as to what points to focus on here. The positions staked out by the Court's most conservative Justices were themselves Trumpian, not so much in their audacity or mendacity but in their prolixity. It is impossible to interview Trump because while the interviewer tries to fact-check any given false statement (e.g., crime has skyrocketed ), Trump's firehose of bullshit emits six or seven more lies. So too during the oral argument: Justices Thomas, Alito, et al made so many spurious arguments that attempting to deal with them one by one feels like a sucker's game. Just to name a few lowlights: *      Justice Thomas wanted to know whether he could use this case to invalidate Jack Smith's appointment. *      Perhaps inspired by that non sequitur ,   later in the argument, Justice Kavanaugh seemed to think that flaws in an expired independent counsel law that is not t

What to Listen for in Today's SCOTUS Argument on Trump's Claim of Immunity

Assuming that Donald Trump's goal is simply to delay his trial on federal charges of undermining democracy as long as possible, his claim that he has immunity for acts within the outer perimeter of his official duties as President and the further claim that his actions to overturn the result of the 2020 election fell within that perimeter have already succeeded. In granting certiorari and placing Trump's case on the plenary docket for argument rather than granting cert before judgment and summarily rejecting Trump's l'├ętat-c'est-moi view months ago, the Court has given Trump a great gift. To be sure, one can argue, as Professor Buchanan has argued on this blog (here , with links to earlier versions therein) that delay does not actually benefit Trump politically, but that argument goes to what Trump should want, not what he does want. In taking seriously Trump's immunity argument, SCOTUS has given him what he wanted when it could and should have given his frivolo

The Balkin Way: Originalism, History, Memory, and Tradition in Constitutional Interpretation

Professor Jack Balkin's new book , "Memory and Authority: The Uses of History in Constitutional Interpretation," continues the author's longstanding efforts to merge living constitutionalism and originalism into a workable and normatively attractive theory of constitutional interpretation. In this book, Balkin supports his concept of "living or framework originalism" with a deep dive into how history, memory, and tradition should and should not be used by judges and other political actors interpreting our very old Constitution.  As I've written here  before, Balkin's overaching theory, similar to Justice Kagan's, is that when the text is clear and specific, e.g., the President has to be at least 35, constitutional intepreters must follow that command, but where the text is abstract and general, then interpreters must search for the principles underlying the text and apply them to changing circumstances. Balkin's new book is mostly devoted to

Does It Matter Why Others Are Protesting What You Are Protesting?

During the fallout after the racist rally in Charlottesville in 2017, and in particular after Donald Trump's infamous "fine people on both sides" defense of the pro-Trump bigots who marched there, one of the late-night shows (most likely "The Daily Show," but it hardly matters) addressed the question of whether there could possibly be some truly fine people who were there to protest what the bigots were also protesting.  Who might such a fine person be? The neo-Nazis' excuse for staging the protests was the planned removal of statues of Robert E. Lee and Stonewall Jackson from what was then called Lee Park, as well as the city council's decision to change the name of said public park.  One supposes that a protester could be a Civil War buff who sincerely (but wrongly, in my view) thinks that removing statuary "erases history," or something like that.  Such a person might rightly reject the Lost Cause myth and celebrate the true Civil War hero

Free Speech and Title VI at California Colleges and Universities

My latest Verdict column discusses some of the most recent events in the ongoing conflict on college campuses in the wake of the October 7 Hamas terrorist attack and the ensuing extremely deadly Israeli military campaign in Gaza. The column focuses mostly on last week's news concerning and at Columbia University. As I note, one day after testifying before Congress in a way that seemed calculated to avoid the fates of former University of Pennsylvania President Elizabeth Magill and former Harvard President Claudine Gay, Columbia President Minouche Shafik invited the police to arrest student-protesters who had erected a pro-Palestinian encampment on campus. My column uses the Columbia events as a springboard for explaining what I regard as the central legal clash there and elsewhere. On one hand, Title VI (which applies to nearly all U.S. colleges and universities because of the broad definition of federal funding) obligates colleges and universities to ensure that students are not

Anti-Textualism, Hostages, and Asymetric Partisan Dishonesty, Part Two

Shameless lying has become such a standard part of Trump/Republican politicking that it is almost impossible to keep up.  And that, of course, is the point.  When they endlessly talk about "Biden's open borders" or "the economic disaster" supposedly befalling the US (which currently is enjoying an incredibly healthy economic boom, thank you very much), they do not make those lies the main point of their rants but rather treat them as common knowledge, which they then use to build toward whatever new lie they want to push forward. Sometimes, the misstatements are truly trivial, such as Trump's claim that Republicans had been trying to overrule  Roe for 54 years , rather than the 49 years that it was actually on the books.  Wrong, but not a lie in any meaningful sense, and certainly unimportant substantively. But the problem arises when Trump fire-hoses his way not merely through the softball Fox-type lovefests that he prefers but even through contentious int

Anti-Textualism, Hostages, and Asymetric Partisan Dishonesty, Part One

In his column yesterday, Professor Dorf summarized and critiqued the oral argument in Fischer v. US , aka the "SCOTUS Insurrectionist Case." He ominously concluded that, based on the oral argument, there is strong reason to suspect that the Supreme Court's Republican appointees are planning to mangle statutory interpretation in a way that will result in many January 6 insurrectionists (and Donald Trump) having some or all of the charges against them invalidated. I want to note here my agreement with Professor Dorf's larger takeaway from that hearing, which he summarized in concluding the column: Fischer  is a January 6 case with implications for the pending D.C. case against former President Trump.  [T]he Justices' partisan druthers, not their methodological or even ideological commitments, appear to be driving their dispositions towards the case. Is that surprising? More than two decades after the shock of Bush v. Gore , it shouldn't be--but somehow, ev

The Ejusdem is Loose -- SCOTUS Insurrectionist Case Edition

Here's the key portion of  the statutory provision (18 U.S.C. § 1512)  that was at issue in yesterday's oral argument in Fischer v. United States : (c) Whoever corruptly— (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both. The main argument offered by the lawyer for Fischer -- who is charged under § 1512(c)(2) with obstructing the counting of Electoral votes on January 6, 2021 by participating in the violent attack on the Capitol -- is that while his client's alleged conduct falls within the plain language of (c)(2) standing alone (because he allegedly "obstruct[ed]" an "official proceeding,") the language of (c)(2) takes its meani