Dorf on Law

by Michael C. Dorf [N.B. The following essay also appears on Take Care , where it is part of a symposium on defending the First Amendment against President Trump.] In their respective contributions to this symposium, other scholars have wrestled with the question of how to distinguish between, on one hand, threats and actions taken by President Trump that implicate the First Amendment rights of private actors such as journalists and athletes, and, on the other hand, speech by Trump that does not have such implications, either because it falls within the “government speech” doctrine or because it emanates from Trump in a personal capacity. Although there are numerous borderline cases, the core cases—those that pose the clearest threat to free speech and freedom of the press—involve abuse of official power. To use an example posed in the opening essay by Anne Tindall and Ben Berwick, an IRS audit of Amazon or Jeff Bezos that is undertaken in retaliation for unfavorable coverage of ...

by Neil H. Buchanan "Trump Proposes the Most Sweeping Tax Overhaul in Decades," screams The New York Times .  Except he didn't.  Once again, Donald Trump has proved his lack of seriousness by promising a big tax plan and then delivering nothing more than a few talking points. This has been Trump's pattern all along on taxes, from his campaign's multiple non-plans that did little more than express a desire to feed the rich to his advisors' release of a not-completely-filled page of bullet points this past spring.  Now, they have released a few more pages to distract the gullible political reporters who barely understand anything about taxes.  And it seems to be working. As I pointed out in a recent column , there is a strangely non-adversarial relationship between the mainstream press and the Trump/Republican tax cutters.  Even though The Times and The Washington Post have reporters breaking story after story about hugely important matters like the Rus...

by Sherry F. Colb Years ago, I wrote an article entitled "'Whodunit' Versus 'What Was Done': When To Admit Character Evidence in Criminal Cases,"   published in the North Carolina Law Review.  In it, I discussed two types of cases that present themselves in criminal court. One is the "whodunit" case, in which everyone agrees that a crime was committed, but the prosecution and defense disagree about who committed that crime. The prosecution says that the defendant is the perpetrator and the defendant says that someone else, named or unnamed, is the real perpetrator. The other kind of case is the "what was done" case, in which the prosecution and defense agree about who the relevant players are (unlike in the whodunit case) but disagree over what happened. Here the prosecutor claims that the defendant did something criminal and the defense claims that it was the alleged victim (or perhaps no one at all) who did something criminal. In my art...

by Neil H. Buchanan Who could have predicted that an unhinged attack on professional athletes would be Donald Trump's final unmasking as a full-on racist?  After everything that he has done and said -- not merely since he announced his candidacy in 2015 but throughout his life -- Trump finally found a way to remove the last shreds of doubt about his bigotry. This is a good occasion to revisit a point that I made during last year's election campaign, which is that Trump's supposed devotion to America and our values becomes inoperative when he has a chance to be a white supremacist.  When he has a choice, Trump goes with the racist approach, not the American one.

By Eric Segall Everyone in the United States may worship their own God, multiple Gods, or no God at all.  We have the right to believe anything we want without fear of government reprisal.  We also generally may refuse to communicate government messages with which we disagree (warnings on dangerous products are an exception to that rule). We are also, in the majestic  words of the great Chief Justice John Marshall, “a government of laws not men.” This term the Supreme Court is hearing an important case implicating these fundamental principles.

by Michael Dorf ( cross-posted on Take Care ) In the Masterpiece Cakeshop case currently pending before the SCOTUS, the United States has filed an amicus brief  in support of the cakeshop, arguing that "an individual’s right to speak or remain silent according to the dictates of his or her conscience" is so powerful that it should prevail over the government's interest in enforcing its public accommodations law. At a recent rally in Huntsville, Alabama, President Trump did his best to undermine the federal government's opposition to compelled speech by expressing the view that a professional athlete who quietly protests police brutality by taking a knee during the playing of the national anthem rather than participating in the patriotic display is a "son of a bitch" who should be fired for his temerity. He doubled down on this view via Twitter. Can Trump's Justice Department's position on Masterpiece Cakeshop be reconciled with his own views a...

by Michael Dorf Yesterday I ran a piece on Take Care arguing that the funding formula of Graham-Cassidy violates the requirement in the SCOTUS Spending Clause cases that any conditions placed on states' receipt of federal funds must be "unambiguous." I meant to cross-post it here but then Sen. McCain announced he would vote against the bill, and so I concluded that there was no point. But it looks like Graham-Cassidy is not fully dead yet and might even come back to life in the next few days. Accordingly, I am hereby promoting my argument in the hope that, at the margin, it might affect the debate over the bill--which is plenty bad quite apart from my contention that it is unconstitutional.

By Neil H. Buchanan Whether or not Senate Republicans finally succeed in taking health care away from tens of millions of Americans, their next big target is the tax code.  And although the mainstream press's coverage of the new health care repeal bill has been appropriately (given the facts ) harsh , journalists on the tax beat continue to give Republicans far too many passes. As I pointed out in a column last month, business reporters in particular seem all too willing to assume that Republicans' favorite talking points about taxes are all true, and that we are only arguing over the details.  I noted, for example, that one reporter for The Washington Post -- a newspaper that is rarely accused of being in the bag for Republicans -- was perfectly happy simply to assume a direct causal relationship between the size of any tax cut and the rate of economic growth, when evidence of such a relationship is weak at best. Unfortunately, the careless reporting continues, not ju...

by Michael Dorf As the latest effort by Republicans to repeal and replace the Affordable Care Act races against the calendar for a showdown vote, one of its sponsors, Lyndsey Graham, has  declared that America faces a choice between "socialism or federalism." The characterization is preposterous, of course. If the ACA represents socialism because it includes subsidies to individuals to buy health insurance on the exchanges and increases federal funding to Medicaid--a program administered by states --then surely Medicare--a federally funded and administered program is even more clearly an instance of socialism; and yet, Graham does not oppose Medicare. Nonetheless, there is a non-trivial chance that Graham-Cassidy will become law, thanks in part to the possibility of support from John McCain, who of late has been sounding less maverick-y than he did over the summer. Given some cover by Arizona Governor Doug Ducey's announcement that he supports stripping health insur...

by Michael Dorf My latest Verdict column discusses the recent decision of the Israel Supreme Court giving the government a year to develop a plan to substantially boost participation by Haredi (ultra-Orthodox) men in the military or face a default solution of making all such draft-age men serve. The column is mostly about the relation between judicial review and legislation in comparative perspective. I claim that the difference between so-called "soft" judicial review in Canada and the UK versus "hard" judicial review in the US is not nearly so sharp as commonly assumed. In all of these countries (and Israel), there exist formal mechanisms by which legislatures may resist unpopular court rulings, but informal norms and political pressure make the formal mechanisms very difficult to use. Here I want to say a word about the seeming strangeness of the underlying claim in the case:. The Haredim claim exemption from military service on the ground that they serve th...