Dorf on Law

-- Posted by Neil H. Buchanan Last Friday, I bemoaned the mindless use of the two-sides-to-every-story approach to journalism. In the context of current politics, this narrative template boils all political stories down to the claim that both American political parties are driven by their extreme ideologues, to the detriment of compromise in the sensible center. I explained why it is simply inaccurate as a factual matter to claim that there are extremists in today's Democratic Party, and that even the politicians who are the most liberal have no noticeable influence on policy, now or when the Democrats controlled both Houses of Congress. There might be a lot of things wrong with both parties, but being "driven by their extremists" is not a shared flaw. Two days later, yet another claim of such equivalence ran in the Sunday New York Times, offered by the liberal columnist Frank Bruni. Bruni claimed that, if we are all honest with ourselves, we must admit that e...

By Sherry F. Colb In my column this week, I discuss the question whether it is legitimate to prohibit people diagnosed with serious mental disorders from possessing firearms.  I propose there that a prohibition of this sort is not justified and represents a form of invidious discrimination.  In doing so, I avoid offering my own view of gun rights and gun control, because I view that as a separate issue, in the way that questions of substantive rights are often distinct from questions of equality of access to whatever rights do, in fact, enjoy protection.  In this post, I want to suggest an independent flaw in safety-based policies that identify particular groups of people or circumstances as the threat to be addressed.  Such policies may offer the illusion of safety and thereby lull the population into a false sense of security. Begin with policies that attempt to disarm people who suffer from mental illness.  Let us put to one side the discrimination objec...

By Mike Dorf As Paul Krugman noted yesterday , the gall of S&P is, well, galling.  First S&P plays a substantial role in crashing the global economy by giving AAA ratings to junk that is opaque to investors; then, having largely escaped any serious repercussions, it errs in the opposite direction by downgrading US debt when very low interest rates reflecting dispersed knowledge of a transparent asset suggest virtually no risk. To my mind, though, S&P is not the primary villain du jour.  One can quibble with S&P's bottom line, but its methodology strikes me as sound.  In evaluating sovereign debt, it's legitimate to take account of the politics of the sovereign in question.  I still think S&P made the wrong call here, mind you.  Even had a deal not been struck in Congress, the U.S. was going to prioritize the paying of bondholders.  So the risk that the U.S. will actually default on T-bills strikes me as not substantially higher toda...

-- Posted by Neil H. Buchanan In the aftermath of this summer's debt-limit crisis, attention is turning to how to stop the Republicans from using the same tactics again and again in the future. In a new column on Verdict today, I discuss some of the dangers posed by the proposals to use novel financial strategies to get around the debt limit. Here, I want to discuss how we might minimize those dangers. The basic problem, as both Professor Dorf and I have been framing it for the last several weeks, is that reaching the point where the debt limit is binding creates an impossible choice (a "trilemma," as Professor Dorf put it), with the President being forced to violate at least one of the spending, taxing, or debt-limit statutes. Some scholars, however, have suggested that there really is no trilemma at all. If there are strategies that could allow the President to meet all three laws, and those strategies themselves are legal, then the President would be required...

-- Posted by Neil H. Buchanan One of the most remarkable and annoying aspects of the media/political culture in the U.S. is the insistence on "not taking sides." I have commented on this in passing many times (most recently, two days ago on Dorf on Law), and I have even seen it in some foreign coverage of U.S. politics. Last month, as the debt-limit debate heated up, I resolved to begin keeping a list of all the cases in which people tried to claim that Republicans' actions in the current fracas were balanced by Democrats' supposedly equally extreme actions in the opposite direction. I gave up before even beginning the list, however, because it quickly became obvious that there is an unlimited supply of such nonsense. The narrative, which has been untenable for many years, had reached the point of genuine absurdity early this year when the Republicans took control of the House of Representatives. One news article (not an editorial, a news article) asked whether ...

-- Posted by Neil H. Buchanan My new column for Justia 's Verdict commentary section steps back from the recent political crisis regarding the debt limit, asking how we ever reached the point where everyone on both sides of the issue had accepted the premise that cutting deficits by slashing federal spending is a wise -- or even a sane -- response to our current perilous economic situation. The understanding that still forms the core of most economic thinking about fiscal policy is Keynesian Economics: short-term deficits are necessary to strengthen weak economies, and long-term deficits are important and useful to fund public investments. (I write about those issues quite often, of course.) The Keynesian view is anything but radical, especially the short-run part of it. It is the presumptively true theory against which all other theories are measured. When the economy went in the toilet in 2008, even most of the deficit scolds approved of stimulus spending, insisting on...

-- Posted by Neil H. Buchanan We know that many Republicans have been aching to impeach Obama ever since he took office. We also know that, had the law remained as it was prior to yesterday, no matter what Obama would have done -- cut spending, raise taxes, or issue debt in excess of the statutory ceiling -- would have been arguably a violation of his oath of office, because he would have failed to faithfully execute at least one duly-enacted law. According to reported hearsay , President Obama would have invoked the 14th Amendment argument if he had not figured out a way to capitulate to the Republicans on the debt limit (or if the Republicans had refused to accept even near-total victory). Among others, Republican Congresswoman and GOP Presidential candidate Michelle Bachmann would have gone ballistic. According to CNN : "Bachmann said President Obama would be a 'dictator' if he raised the debt ceiling by executive order, using the 14th amendment of the U.S. Con...

-- Posted by Neil H. Buchanan I certainly chose a bad two weeks to go on vacation! With the biggest political/economic/constitutional mash-up in history bearing down on the country, I found myself traveling in Canada (on a trip that had been planned months in advance, and that could not be rescheduled), wondering what kind of country I would find upon my return. Perhaps the most bewildering moment was when an elderly Chinese-Canadian woman at the next table in a restaurant in Quebec City explained repeatedly and emphatically to her companion that "America has no money, but Canada has money." As wrong as that analysis was, it was no worse than 90% of what one hears from American politicians and pundits. Immediately upon my return (and speaking of bad punditry?), I was a panelist (via telephone) on yesterday's edition of "To the Point," an NPR radio show produced at KCRW-FM in LA, hosted by Warren Olney. I agreed to appear on the show because it is not...

By Mike Dorf I began work on my latest Verdict column on Friday, when a deal to raise the debt ceiling looked like a 50-50 proposition.  It now looks much more likely, so I've retooled the column as something of an evergreen addressing the following question: What should the President do when faced with only unconstitutional options?  It's a bit of a follow-up to, and expansion of, my earlier blog post on the topic.  I explain how our constitutional law stubbornly refuses to acknowledge a substantial role for balancing, which is how the issue would be addressed in most other constitutional democracies. Developing criteria for deciding among unconstitutional options presents one interesting possibility that should pretty clearly be rejected: Namely, doing whatever the heck you want.  Let me explain. In the example I discuss in the column, I assume that the President has three unconstitutional options: 1) Ignore the debt ceiling and borrow in violation of sepa...

By Mike Dorf Consider this another in my occasional series that might be titled something like  What's Wrong with our Constitution .  A couple of weeks ago,  I explained  how the impasse over the debt ceiling would not arise in a parliamentary system of government.  Now to explain how the American conception of judicial review may be leading both Congressional Republicans and President Obama to keep driving straight ahead rather than swerving to avoid the collision. First, a disclaimer: The metaphor of a game of "chicken" to which I have just alluded is almost entirely misplaced, because Obama and the Senate Democrats have already conceded an enormous amount to the Republicans.  Recall that in the past, the debt ceiling was simply raised.  The only reason we are even at an impasse is because of the Republicans' decision to use the occasion of the debt-ceiling bill as an opportunity to extract spending cuts that they were unable to achieve during the ...