Dorf on Law

by Michael Dorf ( cross-posted on Take Care ) Thirty-five years ago, in Nixon v. Fitzgerald , the Supreme Court held that the president has absolute immunity against civil damages litigation for acts undertaken in his official capacity.   Twenty years ago, the Supreme Court rejected Bill Clinton's argument that a sitting president should enjoy temporary immunity from all civil lawsuits while he is president, including lawsuits seeking to recover for pre-presidential acts. Refusing to extend Fitzgerald in this way, the Court rejected Clinton's argument in Clinton v. Jones . The justices reasoned that answering such˙a lawsuit would not unduly distract the president from his official duties. Clinton v. Jones  looks like a potentially very damaging precedent for President Trump and his lawyers as they battle the various civil cases pending against him. How can the president respond?

By Neil H. Buchanan [Note: The tenth and twenty-first paragraphs below have been updated to correct an error on my part regarding the lowest tax rate in Trump's non-plan.] During the 2016 election campaign, Donald Trump hit a low point with the press when he announced that he would make a "major statement" about the birther controversy, supposedly to tell the world at long last that he had been wrong to say for years that Barack Obama was not a natural-born U.S. citizen. In fact , Trump used the occasion to lead a meandering media event that he turned into an infomercial for his new hotel in Washington, D.C.  Finally, after jerking around the assembled press for what seemed like an eternity, Trump quickly said that Obama was born here and that the birther controversy was Hillary Clinton's fault all along.  He then left the room. I take this trip down memory lane because that cynical manipulation of the press was supposed to have been a defining moment, the day...

by Sherry F. Colb In my Verdict column for this week , I discuss the legislation currently pending in Texas to abolish the cause of action for wrongful birth.  A wrongful birth suit is one in which the plaintiff claims that had the defendant done what he was supposed to do (e.g., a doctor notifying a pregnant patient that her fetus shows signs of severe abnormalities), the plaintiff would have terminated her pregnancy and the child would accordingly never have been born.  The plaintiff, if successful, can recover expenses occasioned by the birth of the child whom she would not have had in the absence of the defendant's wrongful conduct (or wrongful omissions).  In my column I discuss the implications of wrongful birth suits, both for issues surrounding abortion and for the symbolic meaning of such suits for people living in the world today who suffer from severe disabilities (of the sort for which the plaintiffs in such suits would have terminated their pregnancies). ...

by Neil H. Buchanan It has always been clear that Republicans are situational deficit hawks.  They are perfectly happy to run up huge amounts of debt when their men occupy the White House, and even to leave spending for their wars off of the official accounts.  When a Democrat becomes president, however, suddenly those Republican opportunists claim to be terrified of debt. It was not surprising, then, that Donald Trump ran on an especially aggressive version of debt obsession, claiming that there was a "magic number" of "24 trillion ... 23 ... 24," one of which he claimed is "the number at which we become a large-scale version of Greece." The most obvious reaction at the time was to point out that Trump's promises regarding military spending and huuuuge tax cuts (those tax cuts alone adding roughly a trillion dollars per year to the debt) would make it impossible to pay down the national debt, which Trump also promised to do.  But as a candidat...

by Michael Dorf ( cross-posted on Take Care ) A student group at UC Berkeley invited Ann Coulter to speak. The event was cancelled due to ostensible security concerns in circumstances that led most reasonable observers (including me) to conclude that a substantial part of the reason Coulter was uninvited was the unpopularity of her views. There followed a round of condemnation of Berkeley and the presumably liberal "snowflake" millennial students who can't handle speech that spreads messages they find offensive, with the condemnation coming not only from the right but also from people who strongly disagree with Coulter (e.g., Coulter's fellow Cornell alum Bill Maher ). Enter Howard Dean, who defended Berkeley's rescission of its invitation on the ground that "hate speech is not protected by the first amendment." Numerous commentators correctly pointed out that under existing case law hate speech is protected by the First Amendment, with a  Volokh C...

by Neil H. Buchanan The Republican leadership uniformly despised Donald Trump during last year's primaries, fiercely opposing him before finally meekly submitting to his misrule.  Throughout this tragicomedy, however, Trump and his party have always agreed on one thing: the magical effects of tax cuts for rich people. No matter what concerns Republicans might have had about Trump's anti-trade shouting, or his proud ignorance of foreign affairs, or his very un-Republican track record on social issues -- a record that has not prevented Trump from now supporting the worst excesses of his party's culture wars -- Trump was as solid as a rock on regressive tax cuts and heedless slashing of safety and environmental regulations. Trump is, in short, every bit as much of a believer in supply-side economics as every other eager Republican has been for the past generation or so.  This is why his decision to turn the page from his growing list of abysmal failures by trying to enac...

by Michael Dorf In my latest Verdict column , I weigh in on the debate over whether President Trump's April 7 cruise missile strike against a Syrian airbase violated domestic constitutional law and/or international law. Here is the nutshell version: 1) Trump needed but did not receive congressional authorization as a matter of domestic constitutional law, although in that respect his action conforms to a longstanding pattern (in which Congress has acquiesced) of accretion of war-initiating power in the White House; and 2) the action violated the UN Charter because it was not plausibly justified as individual or collective self-defense of states nor authorized by the Security Council, notwithstanding arguments by some scholars (most prominently Harold Koh) who say that humanitarian interventions are legal even absent Security Council authorization. The sorts of arguments made by Koh and other interventionists are contestable on their own terms and could ultimately undermine intern...

By Michael Dorf ( cross-posted  on Take Care ) Almost immediately after President Trump's inauguration, Citizens for Responsibility and Ethics in Washington ("CREW") filed a lawsuit against him alleging multiple violations of the Emoluments Clause occasioned by Trump's continuing to profit from his opaque business empire. The complaint alleged that CREW has standing because, as a government ethics watchdog agency, it would incur very substantial additional costs monitoring and otherwise responding to Trump's activities. Some commentators objected that such costs ought not to suffice as an "injury" sufficient to confer standing under the Constitution's Article III because, they said, if it did, then any self-appointed do-gooder could manufacture standing simply by asserting an interest in monitoring and responding to alleged wrongdoing. These commentators typically cited Clapper v. Amnesty Int'l USA for the proposition that CREW suffered f...

by Neil H. Buchanan The annual deadline for filing taxes is guaranteed to bring out plenty of discussion of tax reform, and with a new president in office, the buzz is inevitably going to be even louder.  Unfortunately, that new president is Donald Trump, so this year's political discussion about taxes has become both deafening and stupefying.

By Eric Segall As the dust settles over the bitterly partisan confirmation battles over Judge Garland and Justice Gorsuch, there is a large consensus that the Supreme Court is a damaged if not broken institution. Liberal commentators have been speculating , for the first time in 85 years, about the possibility of a Court packing plan the next time the Democrats hold both the Congress and the Presidency. The Editorial Board of the New York Times recently worried that the politics surrounding who nominates and confirms future Justices could “shake the court system and American jurisprudence to its core.” Even Chief Justice John Roberts lamented this week that that it will be “very difficult … for a member of the public to look at what goes on in confirmation hearings these days …and not think that the person who comes out of that process must …share that partisan view of public issues and public life.” In light of Justice Gorsuch’s refusal to answer any meaningful questions at his ...