Dorf on Law

by Neil H. Buchanan One particularly frustrating aspect of the all-purpose, empty complaints about so-called political correctness is that they are actually bipartisan.  That is, right-wingers -- prominently including Donald Trump -- constantly whine that all of our problems are caused by being too politically correct ("We can't even shoot immigrants at the border, ya know?" "Why can't police rough up suspects?" "People shouldn't feel bad about saying 'Merry Christmas!"), and everyone else rejects those particular examples but then says, "Even so, PC culture can get out of hand." Let us leave aside the ongoing reality that no one can actually define the key term here in a way that does not boil down to "being sensitive to things that I don't care about, even though I'm outraged when people are insensitive to what I do care about."  In fact, most of the time, the complaint is really about being expected to car...

by Neil H. Buchanan Because this column discusses populist movements, some of which are related to taxes, I will start with a reminder: The Boston Tea Party was absolutely, positively not a revolt against taxes.  It was , instead, a revolt against taxation without representation and against a regressive sweetheart deal for a politically connected corporation. I bring up this bit of history in light of two relatively recent populist phenomena: the Occupy movement, which began in a park near Wall Street in 2011, and the Yellow Vests movement, which began last year in France in response to a proposed gasoline tax increase by the Macron government. In the case of Occupy, the movement quickly became identified with clear leftist inclinations, whereas the Yellow Vests have been disparaged for the "vagueness of their demands and the lack of a leadership to negotiate with."  The Yellow Vests spawned some violent protests, but no one is quite sure what they really are (or wer...

by Michael C. Dorf In a per curiam opinion in   Box v. Planned Parenthood of Indiana and Kentucky , the Supreme Court: (a) reversed the Seventh Circuit opinion that had found Indiana's fetal remains disposal law unconstitutional under the rational basis test; and (b) denied review of that same court's invalidation of Indiana's law forbidding abortions based on the race, sex, or disability of the fetus. The big-picture takeaway here should be that the Court as a whole is not eager to dive into abortion jurisprudence. That means that the wave of restrictive state abortion laws we are seeing will not likely force the Roberts Court's hand. The Chief Justice apparently has enough allies among the other conservative justices who will be willing to let stand lower court rulings striking down such laws under existing precedents. To be sure, "not likely" does not mean impossible. In denying cert with respect to the selective abortion provision, the Court specifical...

by Michael C. Dorf At least some of the counts of the superseding indictment filed last week against Julian Assange appear to apply to activities that conventional reporters routinely undertake. Does that mean the indictment violates the First Amendment? Not necessarily. As I'll explain briefly below, it's not even clear that a responsible national security reporter for a bona fide news organization would be protected by the First Amendment for doing what Assange stands accused of doing, even though such reporters do so regularly. I'll then pivot to problematizing an issue that has consumed many non-lawyers (and even some lawyers who don't know better): whether Assange is a journalist. As I'll explain, so far as the First Amendment as construed by the SCOTUS is concerned, there's no such thing as a journalist.

by Michael C. Dorf Per my usual custom, I am posting the exam I administered to my Federal Courts students. It was an 8-hour open-book take-home. Blog readers should feel free to spend more (or less) time on it. Submit answers (which I won't grade) in Comments. I apologize that this exam isn't as funny as some of my others (though it does contain the obligatory Trump tweet, complete with misspellings).

by Michael C. Dorf On Monday, in Herrera v. Wyoming , the Supreme Court ruled that an 1868 treaty between the Crow tribe and the US entitled a tribe member to hunt elk in violation of state law. The case divided the Court on mostly ideological grounds, with Justice Gorsuch breaking ranks to join the liberal wing in a 5-4 majority opinion authored by Justice Sotomayor. However, the actual substance of the disagreement was not ideological. Justice Alito and the remaining conservatives dissented on the ground that a 1995 Tenth Circuit case involving the Crow had definitively resolved the issue, so that Herrera was bound under the doctrine of issue preclusion. Other than an aside deeming the majority's construction of the treaty "debatable," the dissent did not address the core issue. Meanwhile, the majority opinion is curious in a number of respects and raises an important question about general rules and exceptions.

by Michael C. Dorf On Monday, US District Court Judge Amit Mehta issued a thorough and persuasive opinion rejecting the arguments by President Trump's personal lawyers for an order invalidating a congressional subpoena for financial records that was issued to an accounting firm that has worked for Trump and his businesses. The next stop for the litigation will be the US Court of Appeals for the DC Circuit and thence the Supreme Court. As I'll explain, Judge Mehta's opinion makes clear that the law clearly favors Congress (really the House) in this dispute. That does not guarantee that Trump will ultimately lose. However, Trump can only prevail in the SCOTUS if the conservative majority engage in hypocritical partisan hackery.

by Neil H. Buchanan There is a worrisome and puzzling trend, not merely among the punditocracy and politicians but even among journalists who purport to be neutral arbiters of the facts, to treat Donald Trump's reelection chances as not only strong but perhaps even insurmountable for Democrats.  Last week, I wrote a column decrying that trend, arguing that Trump's deep unpopularity -- and his unwillingness to do anything but feed the blood lust of his base -- all but guarantees that he will lose in 2020, probably by a large margin. To be clear, even if my prediction is correct, I still believe that we will then face an existential constitutional struggle, because it is inconceivable that Trump will accept losing -- by any margin.  We might already be in the end stages of our constitutional democracy with no way to save it, even as we naively think that there is still a way back.  (Whatever else I might think about Joe Biden, I do admire his willingness to build a cam...

by Michael C. Dorf Yesterday, President Trump tweeted : "If Iran wants to fight, that will be the official end of Iran.  Never threaten the United States again!" The saber rattling seems calculated to undercut the emerging view of Trump as the dovish good cop to National Security Adviser John Bolton's bad cop. After all, just a few days earlier, the Washington Post reported that Trump has been frustrated by the hawkish views of Bolton and Secretary of State Mike Pompeo, both of whom seem to be itching for a war with Iran. Despite yesterday's tweet and Trump's denial of any "infighting," the WaPo  report rings true. After all, Pompeo and especially Bolton have long been hawks on Iran, whereas Trump came to office exaggerating his past opposition to the Iraq War but genuinely seeming to disdain further commitments of US troops to war in the Middle East. It was one area where he seemed to outflank Hillary Clinton to her left, and sensibly so, even if Tr...

By Eric Segall In Roe v. Wade , seven Supreme Court Justices signed on to an opinion detailing the substantial burdens on women and their families of abortion bans and balanced those harms against the states’ interest in the health of the mother and life of the fetus. They came up with the famous or infamous trimester approach which in practice resulted in a bifurcated regulation of state abortion laws. Prior to viability, states had little authority to regulate abortion while after viability states could ban all abortions subject to exceptions for the health and life of the mother.  Eventually, Planned Parenthood v. Casey modified the law to allow regulations on abortion that do not amount to an undue burden on a woman’s right to choose, but complete bans were still unconstitutional until after viability. There is a myth propounded by legal scholars, commentators, pundits, and even Supreme Court Justices that Roe as initially decided, and later Casey, are constitutiona...