Dorf on Law

-- Posted by Neil H. Buchanan Especially for those who understand very little about budget policy – that, is, for nearly everyone with a life – the words that we use can vividly frame the debate.  Fed Chairman Bernanke's invention of the term "fiscal cliff" has had a particularly unfortunate effect on the current national discussion about spending and taxes.  The issues at stake are substantively different from anything resembling a cliff-like situation -- the decline in the economy would be gradual, and there would be no "vertical climb" necessary to return to where we started.  Some bad and unnecessary things will happen if current law is not changed, but Bernanke's metaphor is just plain misleading.  Dangerously so. I made this argument in my most recent Verdict column , and over the past few weeks a veritable cottage industry has emerged, with various commentators trying to undo the damage that the "cliff" framing has done.  Unfortu...

-- Posted by Neil H. Buchanan I have again been writing a lot about the debt ceiling lately.  (My most recent Dorf on Law post can be found here .)  When it became clear that Republicans had dealt themselves a bad hand in the post-election debate about the federal budget, they decided to threaten again to put the country into default.  If Obama does not give them more spending cuts, they vow, they will refuse to increase the debt ceiling.  Come February, with the last accounting maneuvers by the Treasury exhausted, the full faith and credit of the U.S. federal government will be in the toilet, and economies worldwide will swoon. Professor Dorf and I, having taken seriously Republicans' announcements last year that this kind of hostage-taking was to be their standard operating procedure going forward, wrote an article this Fall in Columbia Law Review , arguing that the Republicans' strategy is not only terrible policy, but it should not have the effect that they...

By Sherry Colb In my Verdict column for this week, part 1 of a 2-part series, I take up the question whether rapists ought to be able to have parental rights to visitation with their biological children, conceived in rape.  My column considers some arguments for recognizing such rights.  In this space, I want to consider a related question that arises in this context as well as in some others. The question is whether there are some circumstances under which it is better for conception not to occur.  When pro-life advocates argue against abortion in the case of rape, they sometimes point to existing people who would not have been born if their mothers had had the choice and had chosen to terminate their rape-induced pregnancies.  As Andrew Solomon discusses in his book, Far From the Tree , many mothers of rape-conceived children (to whom they did give birth) regularly experience an agonizing ambivalence about their offspring -- they may love the children but also...

By Mike Dorf As I noted in yesterday's post , one way the Supreme Court could avoid deciding whether Section 3 of DOMA is valid is by finding that there is no jurisdiction because the Obama Administration has declined to defend the law.  Here is the question that the Court added in its cert grant:  "Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case." Suppose the Court finds that the combination of executive non-defense and lack of standing for the BLAG means that the case is not justiciable.  What then? I'll address that question momentarily, but first, let me say that I do not think the Court should dismiss on justiciability grounds.  Perhaps the closest parallel in the SCOTUS case law is INS v. Chadha .  The Execut...

By Robert Hockett           With so much attention now focused on the so-called 'fiscal cliff' negotiations between the White House and Congress, Americans might be forgiven for failure to notice another 'cliff' we are set to go over come New Year’s Day.  On that day, absent Congressional and Presidential action, an underappreciated provision of the Helping Families Save Their Homes Act of 2009 is set to expire: the servicer safe harbor provision .  It would be difficult to overstate the significance of this little-discussed piece of home finance policy – or of why it is crucial that it be extended past 2012.       Most Americans know that our nation has recently passed through a housing price bubble and bust, and that securitized mortgage loans had something to do with them both.  Most also have heard of the Home Affordable Mortgage Program ('HAMP'), which has prevented some securitized loan foreclosures but has accomplished ...

By Mike Dorf The SCOTUS cert grants in  Windsor  (the DOMA case) and  Perry (the Prop 8 case) do not necessarily mean that the Court will resolve the question that makes these potentially landmark rulings: Whether the Constitution requires legal recognition of same-sex marriage.  For each case, there are a couple of paths towards a narrower decision. Justiciability doctrines provide one path to ducking the central question.  In  Windsor  the Court could find that, with the Obama Administration having chosen not to defend DOMA, the "Bipartisan Legal Advisory Group" of the House of Representatives lacks standing to defend it. In Perry , the Court could find that the sponsors of Prop 8 lack standing to argue for Prop 8's validity on appeal.   Even if the Court reaches the merits, in each case it is possible to rule for the challengers without finding a general right to SSM. In Windsor , the Court could find that either federalism alo...

-- Posted by Neil H. Buchanan In my Dorf on Law post and Verdict column yesterday, I took a slightly different tack on the question of how President Obama should respond to the Republicans' latest attempt to hold the economy hostage to the debt ceiling.  The main thrust of my argument was that the President should simply make it clear to the Republicans that they should fear giving him the discretionary power to cut spending below legally required levels.  I also continued to press the case that President Obama should not hesitate to invoke his Constitutional responsibility -- if put into the "trilemma" that Professor Dorf and I have been explaining for the last 16 months or so -- to issue debt sufficient to fulfill his duties to execute the budget (taxing and spending laws) that Congress has already passed. This is a fast-moving story, and within hours, the White House had made an announcement that they were taking a different Constitutional argument (which Prof...

-- Posted by Neil H. Buchanan The budget talks have, ever since the day after the election, mostly been focused on the automatic tax increases and spending cuts that are set to take effect on January 1, 2013.  Political buzz this week, however, has taken another unfortunate detour, returning to Republicans' longstanding threat to use the debt ceiling to extract concessions from President Obama and the Democrats.  My Verdict column today discusses both issues at some length.  The central point of my column is that Republicans should be careful what they wish for, which I will explain further momentarily.  Here, I will extend a bit on my analysis in that column, and offer a few further observations. Republicans think that they can put Obama in the position where he simply has no choice but to cut spending, if the Republicans hold the line and refuse to increase the debt ceiling early next year.  Because the current partial-year budget (which is not a comple...

Posted by Anil Kalhan Among the more striking comments at the event convened last week in New Orleans by Human Rights First, Dialogues on Detention: Lessons from Criminal Justice Reform for Immigration Detention , were those by Louisiana State University Law School Professor Ken Mayeaux, who directs the school’s immigration clinic. In the day's final panel, on access to counsel, Mayeaux painted a grim picture concerning the ability of noncitizens detained within Louisiana – whose immigration detention beds comprise 6 percent of the total number of ICE detention beds in the country , but 90 percent of whose detainees have been transferred from out of state – to obtain legal representation, either for bond hearings or to defend against removal itself. He offered up the Oakdale Federal Detention Center for particular scorn. Back in the 1980s, he said, " someone had the brilliant idea to build a 900-bed detention facility in the middle of nowhere ." Today, in practice, May...

By Mike Dorf My latest Verdict column discusses the fact that the Supreme Court has been taking its time deciding whether to grant or deny review in the various same-sex marriage cases currently pending on petitions for certiorari.  I explain why none of the Defense of Marriage Act cases is procedurally ideal but I also say that the issue is simply too important for the Court to punt.  In the course of my analysis, I note how prior to 1988 the Supreme Court had a large non-discretionary docket and that under Section 25 of the original Judiciary Act of 1789 the Court was obligated to hear cases in which a state court held an Act of Congress invalid.  Herewith, a couple of further observations: 1) Section 25 of the 1789 Act talks about suits "where is drawn in question the validity of a treaty or statute," thereby expressly contemplating that state courts would exercise the power of judicial review, not only to strike down unconstitutional state laws--as mandated by th...