Dorf on Law

by Neil H. Buchanan Donald Trump wants a guy named Stephen Moore to be the next person to join the Board of Governors of the Federal Reserve System.  Even if the only part of the previous sentence that you can follow is "Donald Trump wants," you know that whatever comes after those words is almost certainly based on ignorance, stupidity, or venality -- or, most likely when dealing with Trump, all three.  And in this case, the situation is truly, truly bad. As background, the Federal Reserve System (the Fed) is the name of this country's central bank (given that opaque name in 1913 to fend off populist fears of an all-powerful Bank of the United States).  The Fed is required by law to set monetary policy to maximize employment and economic growth while minimizing inflation.  Although it has a number of policy tools available, the Fed's key ongoing decision is whether to increase or decrease interest rates. Stephen Moore is a hack.  He is what other hacks p...

by Neil H. Buchanan In the United States, talking about single-issue voters is almost always a discussion about anti-abortion fundamentalist Christians.  With Donald Trump in the picture, their single-issueness has become glaringly clear, because they are his most devoted supporters even as he embodies everything that they claim to despise.  It used to be possible to imagine that right-wing Christians, for a variety of reasons, happened to have views that lined up with Republicans along a number of important dimensions, but that pretense is now simply gone.  Trump promises to give them anti- Roe judges and attacks on Planned Parenthood (and further attacks on reproductive rights), and that keeps the Christian Right firmly in his camp, no matter what. Not that there is anything wrong with being a single-issue voter.  It so happens that anti-abortion true believers have incoherent and unsupportable views even on their own religious grounds, and they are only too h...

by Michael C. Dorf Today on Verdict you can find Prof Colb's discussion of the recent cert grant in Ramos v. Louisiana , which poses the question whether the Sixth Amendment is fully incorporated against the states. In 1972 in Apodaca v. Oregon , the Court said that the Due Process Clause of the Fourteenth Amendment incorporates the Sixth Amendment right to jury trial in serious criminal cases in state court but does not incorporate it jot-for-jot; thus, although the Sixth Amendment requires unanimous juries in federal court, the Fourteenth Amendment permits conviction by a less-than-unanimous jury in state court. Actually, the Court did not say that. Only Justice Powell did. All of the other justices thought that the Fourteenth Amendment incorporates the Sixth jot-for-jot, but some thought both require unanimity and others thought neither requires unanimity. Powell was in the middle and thus his opinion (in the companion case of Johnson v. Louisiana )   was controlling, but h...

by Diane Klein It's here!  The full-scale coloring book , a perfect way to entertain/divert yourself while we wait to find out whether we will get to read the Mueller Report!

by Neil H. Buchanan There are times when something is unknown to us, yet when it becomes known, we feel like it must have been obvious all along.  The eruption of blatant racism after Barack Obama became president certainly falls into that category: Before the backlash happened, many people felt that Obama's election signaled the permanent marginalization of even most of the coded racism that Republicans had been perfecting for decades; but somehow it now seems that we must have known all along that his presidency would inevitably lead to the rise of racist demagoguery. Which brings us, of course, to Donald Trump.  Having ridden "birtherism" to political fame, and doubling down on every kind of bigotry imaginable -- aided and abetted, of course, by Fox News and the entire Republican infrastructure -- Trump turned hatred into a political cult, which he has used to drain the few remaining principles out of the party that he took over. With the end of the Mueller probe...

By Eric Segall Last Wednesday, three federal judges appointed by Republican Presidents expressed great skepticism over a lawsuit brought by the State of Maryland and the District of Columbia alleging that President Trump is violating the Emoluments Clauses of the Constitution. The provision that deals with foreign countries (this post is limited to that clause) provides that " No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state." This constitutional limitation has never been interpreted by the Supreme Court. In addition to the lawsuit brought by Maryland and the District of Columbia, there are similar lawsuits filed by member of Congress (disclaimer I worked on a brief in that case), and by a citizens organization called CREW in the Southern Distr...

by Neil H. Buchanan The nation's tax collector is always in a politically precarious position.  Anti-tax demagoguery is forever in the air, including ahistorical references to the Boston Tea Party (which was actually a protest against a tax break for businesses, not an uprising against paying taxes) along with moronic comments about "keeping the government's hand out of your pocket" and similar rhetoric. Meanwhile, the people who understand the importance of the Internal Revenue Service are often hesitant to defend it, because there is simply no political upside to doing so. And then there is the Republican Party, which claims to favor law and order but is suddenly tolerant of moral relativism when it comes to people not paying their taxes (and also when it comes to businesses that decide not to comply with labor, consumer, and environmental laws). Even as they have succeeded in passing tax cut after tax cut, including 2017's regressive mess (which was a ...

by Neil H. Buchanan The narrative of the moment in the political press and the punditocracy tells the story of a veritable civil war among Democrats, with the two sides usually described as the "the left" and "centrists," although there are all kinds of near-synonyms in use.  The big idea is that the more conservative Bill Clinton-style establishment types are worried that the surge of energy on the left is going "too far." I have already written quite a bit about this topic (see, e.g., here and here ), with my principal argument being that the broad agenda that is being called far left is anything but, both as a matter of substance and in terms of political acceptability.  Notwithstanding the presence of people in the mix who call themselves democratic socialists, it is difficult to find a substantive proposal offered by the supposed extremists that is either extreme or unpopular. Indeed, I recently claimed that the current avatar of the not-left ...

by Michael C. Dorf In my latest Verdict column , I take note (as have numerous others) of the recent calls by Justice Clarence Thomas for the re-examination of long-settled constitutional doctrines. Thomas objects that the Court's modern case law did not ground these doctrines in the Constitution's original meaning. He then points to substantial evidence that the doctrines--in particular the rules of NY Times v. Sullivan and Gideon v. Wainwright --contradict the original meaning of the First and Sixth Amendments respectively. My column raises a number of familiar criticisms of originalism, including some that overlap with the argument Prof. Segall recently laid out  here  on the blog earlier this week. The column then pivots to focus on a temporal problem: The cases at issue arise out of state laws and are thus governed not by the First and Sixth Amendments themselves but by the Fourteenth Amendment, which makes the relevant provisions applicable against the states. Althou...

by Neil H. Buchanan I grew up thinking that what I saw around me was normal.  There were plenty of reasons to think that this was true.  I am a white, Anglo-Saxon protestant.  I grew up in a suburb of a medium-sized midwestern industrial city.  I am a Baby Boomer.  Long before half-term Governor Sarah Palin joined the disgusting effort to try to turn the words "real America" into a political weapon, it was difficult for people like me to think of America as anything but people like us and places that seemed familiar to us.  The culture reflected us, and no one questioned it very much. That is not to say that we were unaware of differences, of course.  We knew about cities, but when I was growing up, most American cities were emptying out, with White Flight and the beginnings of industrial decline making racial differences between cities and suburbs even more difficult not to notice.  And it is not as though people like me thought of our lives ...