Dorf on Law

By Michael Dorf For this final post of 2017, I just want to direct readers to my latest essay on Verdict , where I argue that insofar as the new tax law punishes blue states and their residents, it is unconstitutional--even as I acknowledge that it would be very difficult to prove the claim in court. Here I simply want to add that I am aware of a potential critique, according to which it is never illicit for Congress to favor residents of the states with a majority of representatives; that's just politics, the critique goes; if you want more benefits for your state, win more elections. I would say three things in response. First, there's a difference between members of a legislature looking out for their own constituents--which we expect--and looking to punish voters in jurisdictions that voted for the minority party--which we have not hitherto expected. Second, as I said, I realize that this distinction in principle will be very difficult to apply in practice, which is why...

by Neil H. Buchanan Surprising everyone (including themselves), Congressional Republicans joined hands earlier this month and said, "Look at us, we're finally doing something !"  They then passed a blatantly regressive and extremely unpopular tax bill and started celebrating.  Donald Trump signed it, and here we are. It did not matter to Republicans: -- that no one (other than Republican donors and ideologues) thought that changing the tax system was even a medium priority, -- that the bill was written for (and in some cases was literally written by the lobbyists for) the largest corporations and wealthy people,  -- that the bill received the worst poll ratings of any major piece of legislation in history, -- that the bill made the tax system even more complicated than it already was, -- that the process of creating the bill was chaotic, compressed, and entirely partisan, -- that the Republicans went out of their way to take a whack at taxpayers in blue st...

by Michael Dorf Last week Federal District Judge George B. Daniels of the SDNY dismissed the lawsuit pending in his court against President Trump alleging violations of the (foreign and domestic) Emoluments Clauses on multiple procedural grounds. In under 30 double-spaced pages, Judge Daniels concluded that: the private plaintiffs who run businesses that compete with Trump's businesses lack Article III standing because their injuries are too speculative; they also lack Article III standing because their claims are not redressable; they lack prudential standing because their injuries do not fall within the zone of interest protected by the Emoluments Clauses; the institutional plaintiff CREW (Citizens for Responsibility and Ethics in Washington) lacks Article III standing; the case presents a non-justiciable political question; and the lawsuit is not ripe. Wow! That's a lot of flaws. How could the plaintiffs' cast of all-star lawyers have filed such a weak case? The s...

By Eric Segall This term the Supreme Court is tackling an array of important constitutional questions, including how states organize their voting districts, the relationship between sexual orientation discrimination and freedom of speech and religion, and whether states may charge state employees mandatory fees for the work public sector unions do on their behalf. I certainly have a rooting interest in all three cases: please do something about partisan redistricting; don't cave to the discrimination is really free speech/freedom of religion trope; and, of course,s tates can charge fees to public sector union workers without first amendment restraint. However, my wish list is less substantive, but still important. So here goes:

by Neil H. Buchanan Possibly the most infuriating aspect of the tax circus that we have witnessed over the last few months is the Republicans' insistence that they are doing something difficult.  This is a "big win," say the Republicans, and the supposedly skeptical press prints headlines like "McConnell Gives Trump Gift to Celebrate Tax Win" and "U.S. House to Vote Again on Tax Bill, Trump on Verge of Win." I suppose the press justifies this by saying that the Republicans view it as a win, and the Democrats voted against it, making it accurate to score this as a W for the Republicans.  The problem is that this framing continues to ignore the fact that the Republicans can do whatever the hell they want to do .  They temporarily have the numbers to pass anything they want in both houses of Congress, limited only by whatever rules they decide to continue to impose on themselves. In other words, even if this bill is a victory for Republicans in s...

by Neil H. Buchanan The Republicans have now passed their stroke-the-rich tax bill, and we might (or might not, as I will explain tomorrow) be dealing with the consequences of this mess for years.  It continues to be ridiculous to call this a "fundamental tax overhaul" or "sweeping reform," as the major media outlets insist on doing ad nauseam, but the final bill did surprise me by being relatively large. I say "relatively" because George W. Bush's first big tax cut bill in 2001 was scored as a $1.35 trillion revenue loser over the standard ten-year budget window, whereas this one is somewhere between $1 and $1.5 trillion.  With national income having almost doubled from 2001 to 2017, the new tax cut is much smaller in any meaningful sense than Bush's bill. Indeed, The Washington Post 's fact-checker ran the numbers and found that the current bill is not only not especially large, but it is actually smaller than two tax cuts passed duri...

by Sherry F. Colb My column for this week  examines the case of Carpenter v. United States , which presents some important Fourth Amendment privacy issues. In particular, I consider Justice Gorsuch's peculiar reluctance at oral argument to utter the word "privacy" in connection with the Fourth Amendment right against unreasonable searches, a reluctance that I suggest has substantive implications. In this post, I want to discuss a different sort of privacy invasion and how an experience of my own might bear on the question of why people do not always contemporaneously protest this type of invasion. When police want to search a person's car (or suitcase or house), they frequently ask for their target's consent. This is at least in part because an officer's desire to search does not always coincide with probable cause, a warrant, or whatever else might be required for a lawful search to take place. If a suspect gives consent to the police, however, then that ...

by Michael Dorf Yesterday, Ninth Circuit Judge Alex Kozinski retired effective immediately  in  response to the growing number of accusations of sexual harassment and misconduct by his former law clerks and others. Having yesterday described Judge Kozinski as a "bosshole" who nevertheless was genuinely fond of the law clerks he gratuitously overworked, I want to praise him today for having made the right call. Given his statement that he "cannot be an effective judge" in the face of the allegations, I assume that Judge Kozinski means to retire completely, rather than to take senior status. Whether Judge Kozinski's retirement fully ends the controversy over his conduct remains to be seen. In the meantime, I want to dwell a little bit on the role that his lawyer, Susan Estrich, briefly played in the saga. Late last week, Estrich issued the following statement on behalf of Judge Kozinski: "Many of the things that are being said about me are simply not tru...

by Michael Dorf [*** Update: Judge Kozinski has apparently decided to retire (by which he appears to mean retire entirely rather than take senior status). Although my piece below discusses Judge Kozinski, its main points are more general and thus, I hope, continue to be relevant to our national conversation about sexual harassment, sexual assault, and, as is the focus here, workplace bullying regardless of its gendered dimensions. Now back to what I wrote before learning of Judge Kozinski's retirement.] I do not have a #metoo story to relate of  sexual harassment by Judge Alex Kozinski , at least nothing in which I figured as a victim of any sort of abuse. But I do have a story . . . or rather, I know some stories. In any event, I'll start at the beginning.

by Michael Dorf Per my usual practice, I have set forth below the exam I recently gave to my first-year constitutional law students. It's got two questions with two parts each and was an 8-hour open-book take-home with a 2,500-word limit. Feel free to submit answers in the comments. I'm busy grading the students' exams, so I won't comment further on answers submitted here. Question 1 On January 10, 2018, Special Counsel Robert Mueller’s investigation of alleged Russian interference in the 2016 election and related matters leads to a grand jury indictment of Donald Trump, Jr. In response, President Trump issues a full pardon to his eldest son. Sustained criticism ensues, with critics in the press and elsewhere complaining that the president is abusing his power by favoring a close family member. On January 13, Trump tweets: