Dorf on Law

By Mike Dorf There is some serious confusion afoot about the constitutionality of the plan of the House leadership to pass health care reform indirectly, via a rule that deems the relevant bill passed without a simple yes-or-no vote on the legislation. I would note at the outset the awkwardness of the Republican Party in trying to paint the Democrats as circumventing democratic principles. Republicans and their allies are now demanding an up-or-down majority vote in the House, even as they are perfectly comfortable using their 41 votes in the Senate to prevent just such a vote in the Senate. The Wall Street Journal editorial page even refers--without any intended irony--to "the ordinary 60-vote threshold for passing major legislation." Now, one might ask, why is it that effectively requiring 60 votes to enact legislation in the Senate is consistent with Article I, Section 7 of the Constitution, which only requires simple majority passage? The only answer ever given i...

A recent spate of articles (including this one ) highlights the role that Virginia Thomas, wife of SCOTUS Justice Clarence Thomas, is playing as a leader of a "tea party." It's tempting to use this story as an occasion to take some shots at Justice Thomas and the right more broadly. E.g., I COULD ridicule the notion that President Obama is pursuing what Ms. Thomas calls a "hard-left agenda." If I were in such a mood, I might speculate as follows: Perhaps Ms. Thomas thinks Obama has such an agenda because he is following the lead of the old Soviet Union by escalating military operations in Afghanistan. But I'll resist the temptation. Instead, I want to ask the core question raised here: What are the limits on political activities by the spouses of judges? As Ms. Thomas correctly notes, PA Governor Ed Rendell is obviously allowed to engage in political activity--all the time--notwithstanding his marriage to a federal appellate judge. Nor are such conn...

By Sherry Colb In my column for this week , I discuss the Supreme Court's recent decision in Florida v. Powell , which upheld the Tampa, Florida version of the Miranda warnings despite their lack of clarity on the suspect's right to have a lawyer with him while police are interrogating him.  My column makes the claim that this lack of clarity is not unique to the Tampa warnings but in fact more broadly characterizes the warnings with which we have all become familiar and that at least federal courts of appeals have upheld.  I suggest in the column that this vagueness is no accident but instead represents a compromise between two objectives:  informing suspects of their rights in a way that mollifies our conscience while simultaneously permitting the police to obtain confessions from suspects who would be better off staying silent. I want to suggest here that this tension is related to the slippery concept of "voluntariness" as we use it in the Fifth Amendment con...

By Mike Dorf A fascinating new article (to be published in the Minnesota Law Review) by my colleague (and my co-convener of the Cornell Constitutional Law & Theory Colloquium) Josh Chafetz propounds this provocative thesis: If you want to know whether a President is legitimately impeachable, ask whether, under classical theory, he would have been legitimately subject to assassination. Much of the paper is a work of history, showing how a few paradigm cases--especially the assassinations of Julius Caesar and Charles I---would have necessarily informed the framers' thinking about what sorts of substantive behavior in a ruler constitute tyranny worthy of removal. Chafetz also explains, commonsensically enough, that the framers saw assassination as a procedurally defective mechanism. Another elegant part of the paper shows how John Wilkes Booth--son of Junius Brutus Booth, who was named for a classical assassin---was well aware of the classical standards for tyrannicide. C...

By Craig Albert A short note regarding a flap from yesterday. According to the NYT , Senator Kyl was shocked, shocked to learn that AG Holder had not listed in his pre-confirmation questionnaire his "signing" of a brief in the Padilla v Rumsfeld case. Putting aside the fact that Holder (along with Reno and 2 other former DOJ officials who were amici) didn't "sign" those amicus briefs (they were signed by the friendly lawyers at Arnold & Porter), it's hard to imagine that Kyl didn't know about Holder's status in the case, if he had been paying any attention at all. After all, Kyl was an amicus in Hamdan, so he was probably keeping abreast of the issues. The irony is that, as John Dean pointed out in a Findlaw column of a few years ago , Senator Kyl and Senator Graham fabricated a piece of legislative history specifically for the purpose of supporting their amicus position in Hamdan . It's hard to forget the novels that you write.

-- Posted by Neil H. Buchanan In my FindLaw column this week, " Is the IRS the Most Trustworthy Agency in the Country? Even Republicans Seem to Think So ," I move from defense to offense in discussing the role in society of the IRS and its employees. Two weeks ago, in my FindLaw column and Dorf on Law post , I responded to the February 18 suicide attack on the IRS building in Austin by saying, in essence: "Why aren't we more shocked? The IRS is wrongly vilified, and its employees are unfairly demonized for political gain. They are good people who deserve better." This week, my counter-intuitive point is that we have strong evidence not only that the IRS is staffed with many of our best and most professional citizens, but Congress -- no matter which party or ideology is in charge -- relies on the high quality of our tax enforcers to carry out its policies. I will return to that argument momentarily. First, however, I thought I would share a few interestin...

By Mike Dorf It was refreshing to see that prominent conservative lawyers have condemned the effort by Liz Cheney's "Keep America Safe" to smear Justice Dep't lawyers who had previously represented Guantanamo Bay detainees as the "Al Qaeda Seven." As various lawyers quoted in the story noted, the legal system cannot function effectively without lawyers and there was nothing unpatriotic about the representation these lawyers formerly provided. Indeed, quite the opposite case can be made--that the lawyers who gave their time and risked their reputations did so precisely because they wanted to stop what they regarded as (and what the Supreme Court ultimately agreed was) the abandonment of cherished constitutional principles. That said, and recognizing that Cheney's insinuations were outrageous, a prospective government lawyer's past representation of clients might raise real issues. Consider an analogy. Suppose that a President is trying to dec...

By Robert Hockett Now that it's virtually certain that comprehensive health insurance reform will be pursued at least in part through House-Senate budget reconciliation, the present affords an opportune moment to take stock of past resorts to that procedure.  Happily, this past Sunday's  NYT provides a helpful survey of the contents and fiscal magnitudes of  all major reconciliation bills passed by Congress since the procedure's first use in 1980.  All who take interest in the details will find the full article commesurately interesting.  Here I shall simply draw out a few particularly intriguing highlights.  Of the 15 major reconciliation bills passed from 1981 to the present, 10 were passed when Republicans held at least two of the three active organs of federal government -- Senate, House, and White House.  (I'll buy-in for present purposes to the traditional mythology pursuant to...

By Mike Dorf My latest FindLaw column unpacks a joke made by Justice Scalia during the oral argument last week in McDonald v. Chicago . Justice Scalia suggested that the lawyer arguing the case for incorporating the Second Amendment was making a tactical error by placing so much reliance on the 14th Amendment's Privileges or Immunities Clause, rather than its Due Process Clause. He joked that the lawyer appeared to be bucking for a position as a law professor. In my column, I explain why Justice Scalia has the issue not just wrong but backwards: It's textualists like him that have led lawyers (and some academics) to argue that the work of incorporation of the Bill of Rights should be shifted from the Due Process Clause to the Privileges or Immunities Clause. Academics tend to be much more legal realist about such matters. Speaking for myself, it's hard to imagine that constitutional law would look very different if the Supreme Court had incorporated the Bill of Rig...

When last I opined on the looming KSM trial, I ventured the guess that the Obama Administration would give up on trying Khalid Shaikh Mohammed et al in any civilian court, given that every such court would involve at least SOME security risk for the courthouse and the city in which it is located. And although the Administration says no decision has been made about where to hold the trial, a military tribunal is looking increasingly likely. Herewith, a few observations: 1) From a purely political angle, perhaps the best course for the Obama Administration would be to hold a trial in a reliably Republican state, Texas or Utah, say. There will be demagoguing about holding the trial anywhere, including opposition from state and local officials, but the Administration can minimize the political price it pays by selecting a site in which the locals are already overwhelmingly going to vote for Republicans. 2) There is some question about how one legally justifies selecting Dallas or ...