Dorf on Law

by Michael C. Dorf On Wednesday, Alan Dershowitz told the US Senate that President Trump's conditioning of the release of congressionally appropriated aid to Ukraine on the announcement of an investigation into Hunter and Joe Biden was not impeachable conduct, even assuming such a quid pro quo were proven beyond a reasonable doubt. Why not? According to Prof Dershowitz, "every public official . . . believes that his election is in the public interest. [Thus,] if a President does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment." That contention was derided by Congressional Democrats and much of the media, including Susan Glasser, whose New Yorker article was aptly titled "L’ÉTAT, C’EST TRUMP." For his part, Prof. Dershowitz insisted that critics who charged that under his approach a president could have his political rivals assassinated without committing an im...

by Neil H. Buchanan It is hardly surprising that the center-right and the far-right are fighting hard against wealth tax proposals.  This commitment to regressivity can arise from a naive/stupid/evil belief in trickle-down economics -- Whatever is good for rich people ends up being good for everyone else, trust us! -- or from a fundamental commitment to the indefensible idea that rich people should always be able to keep their stuff (which assumes that they accumulated that stuff without any help from a government that provided a stable legal system, educated workers, infrastructure, and so on). Either way, there are people who are simply horrified at the idea of a government taxing the wealth of the super rich, and they have made many embarrassing arguments in service to that belief.  But which argument against the wealth tax is truly the worst?  I might have an answer.

By Eric Segall The United States Constitution is one of the most difficult Constitutions in the world to amend. It takes supermajorities in both the Congress and the states to formally change the document. Yet, it has happened 27 times in our history, and it needs to happen again with regard to the impeachment procedures for the President of the United States.

by Neil H. Buchanan Setting aside the fact that the U.S. political system is melting down as we speak, there remains an interesting set of policy proposals that the next president (if there ever is another president) might decide to address.  Among the most significant is the possibility of a wealth tax.  Unfortunately, for every good analysis of wealth taxes, there seem to be an endless number of fatuous, dishonest, or muddled responses. Yesterday, Professor Dorf offered one of the good ones.  Using former New York City mayor Michael Bloomberg's unlimited political spending as a backdrop, Professor Dorf pointed out that Senators Elizabeth Warren and Bernie Sanders could find themselves benefiting from Bloomberg's bags of money during the general election even as they argue that such wealthy people should have their wealth taxed by the federal government. Most interestingly, Professor Dorf argued that Warren is, if anything, underselling the effectiveness of her we...

by Michael C. Dorf A recent NY Times story  bears the headline  Seeing a Bloomberg Ad on Fox News, Trump Takes the Bait. The headline and the story bury the lede. The story focuses on Trump's characteristic lack of self-control. Despite advice to ignore Bloomberg, Trump has been rage-tweeting about the man he dubs "mini-Mike" in response to ads critical of Trump and in support of Bloomberg's candidacy for the Democratic presidential nomination. But the fact that criticism irks Trump enough to provoke a fit of pique is not news. The real reveal in the story is this: Bloomberg is providing a potentially very helpful service by running ads attacking Trump on traditional and social media. That spending is unlikely to result in Bloomberg's securing the nomination. Fivethirtyeight.com currently gives him and all of the non-top-four candidates a combined 0.5% chance of winning the nomination. To be sure, the Fivethirtyeight model  does not appear to take account of ...

by Neil H. Buchanan The American public is faced with the reality that the Democrats' very flawed nominating process will spit forth a nominee who might or might not be the most "electable" candidate, whatever that means. Mostly, I think, people simply want to fast-forward through the process and find out whether Donald Trump and the Republicans will succeed in smearing and so completely slandering the Democratic nominee that Trump (who is disliked by a clear majority of the public, and shows no desire to change that) somehow wins.  Still, the more likely outcome is a Democratic win followed by a succession crisis.  No one likes those two paths, but no other path seems imaginable. Because I have long argued that any Democratic candidate would beat Trump convincingly (running in anything even remotely resembling a fair electoral process, including what we had in 2016 but might no longer have, because of ever more intense voter suppression), I ought to not care about ...

by Neil H. Buchanan Once the Republicans revealed themselves as being completely disingenuous in their teeth-gnashing about budget deficits, one might have hoped that the discussion of federal budget issues would become at least a little bit more sensible.  After all, not only does neither party currently seem to have a policy interest that hangs on deficit fear-mongering, but the Republicans' credibility on these issues is now completely shot.  Deficit hysteria should be a thing of the past, right? Good luck with that.  There is a bottomless (cess)pool of people who are willing to make anti-deficit comments, helped along by two things.  First, the nonstop anti-deficit rhetoric of the last several decades makes every politician think that the safe, uncontroversial thing to do in every situation is to inveigh against the evils of federal borrowing.  Second, there is always at least a short-term advantage in pointing out that something your opponent is doing ...

by Michael C. Dorf Yesterday I argued that the ratification of the Equal Rights Amendment (ERA) probably will not make a difference to constitutional law, because the Supreme Court already construes the Fifth and Fourteenth Amendment to forbid the federal and state governments from denying equal treatment based on sex. There will continue to be questions about whether particular laws or policies deny equality, but that will be true whether or not the ERA is deemed validly adopted (a question I separately address in my latest Verdict column ). Accordingly, I concluded that the primary impact of saying that the ERA is (or is not) part of the Constitution is symbolic. Symbols matter, of course, and insofar as constitutional law eventually reflects social values, treating the ERA as valid law could eventually affect constitutional doctrine. But so could a great many other things. Yet while the conclusion that the ERA is validly part of the Constitution will have no obvious doctrinal ...

by Michael C. Dorf Last week Virginia became the 38th state to ratify the Equal Rights Amendment (ERA), but its action came four decades after the deadline Congress set for ratification and after four of those 38 states purported to rescind their ratifications. Is the ERA now valid as the 28th Amendment? And who decides? I will address these and related questions in a new Verdict column tomorrow. (Starting at midnight, you'll be able to find the column  here .) Although the column will acknowledge substantial uncertainty, I will conclude that such uncertainty should be resolved in favor of ratification. The Article V threshold for amendment is already extremely difficult to satisfy; additional hurdles (such as a deadline that is not in the text of a proposed amendment or the opportunity for rescission despite the failure of the constitutional text to provide one) should not be added. My argument in the Verdict column will be essentially agnostic with respect to the content of ...

By Eric Segall Last week I attended an excellent conference at the University of Texas on "Constitution Making and Constitutional Change." Over 100 Law professors from over 20 countries attended, and I learned a lot about constitutionalism outside the United States. I’d like to thank Professor Richard Albert for putting together such a wonderful event. For my part, I presented an abstract of a work in progress  with the thesis that if, like in the United States, judges are going  to play an important role in keeping a Constitution up to date, they should do so by placing their values and priors up front, not by hiding behind formalist legal doctrines that rarely generate the results in hard cases.