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Dorf on Law



Law, Politics, Economics, and More from Michael Dorf, Neil Buchanan, Sherry Colb, Diane Klein, Eric Segall, and (Occasionally) Others



Last Build Date: Sat, 16 Dec 2017 13:50:20 +0000

 



Con Law Exam 2017: Pardon Power, Trump, Braavos, and More

Fri, 15 Dec 2017 12:00:00 +0000

by Michael DorfPer 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: Despite the tweet, Trump does not take any immediate additional action to issue further pardons. Meanwhile, fearful of a political backlash in the 2018 midterm elections, on January 16, 2018, each house of Congress overwhelmingly passes a bill titled the Make America’s Pardon Power Great Again Act (MAPPGAA). The bill provides as follows: Sec. 1.  No pardon issued to any person who has been charged with an offense or is under investigation in connection with alleged wrongdoing in furtherance of any alleged or actual acts by or on behalf of the pardon-issuing president’s administration or prior presidential campaign shall have any legal force or effect. Sec. 2.  No pardon issued by a president to himself or herself shall have any legal force or effect. Sec. 3.  This Act shall apply to any and all pardons issued on or after initial passage as a bill by either house of Congress. The MAPPGAA bill reaches the president’s desk on January 17, 2018. On that same day, President Trump issues the following proclamation: Acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I, Donald J. Trump, President of the United States, do hereby grant a full, complete, and unconditional pardon to all persons, including myself, who may have committed any offense charged as a result of the investigation by Special Counsel Robert Mueller, his successor in that office, and/or any person working for any such special counsel, whether directly or indirectly.The day after issuing the proclamation, President Trump vetoes MAPPGAA. Hours later, each house of Congress overwhelmingly votes to override the president’s veto, thus enacting MAPPGAA. On January 20, 2018, President Trump holds a press conference at which he declares that, like the Roman Emperor Caligula before him, he has become a god. He orders the assembled members of the press corps to kneel before him. With the exception of Breitbart’s White House correspondent Charlie Spiering, none do. Trump flies into a rage and attempts to tackle CNN reporter Jim Acosta. Secret Service members break up the melee, whereupon Trump passes out. He is taken to Walter Reed National Military Medical Center, where a team of neurologists diagnoses Trump as suffering from dementia caused by neuorsyphylis, very likely a result of a previously undiagnosed and untreated syphilis infection that he contracted one to two decades earlier. In its initial stages neurosyphylis can be treated with penicillin, but Trump’s infection is so far advanced that the doctors believe that he has little likelihood of recovering his sanity. Upon learning the foregoing news, Vice President Pence assembles the Cabinet, which, with the exception of Attorney General Sessions, who recuses himself, votes unanimously to declare Trump “unable to discharge the powers and duties of his office” under Section 4 of the Twenty-Fifth Amendment. Trump learns of this action while watching Fox & Friends from his hospital bed and attempts to leave the hospital. The Marine guards posted outside his room subdue him and agree to transmit his written declaration to congressional leaders that he is “as fit as ever and also a god.” With only two nay[...]



Making a Murderer Postscript: The Perversion of Henry Friendly's Innocence Concern

Thu, 14 Dec 2017 12:30:00 +0000

by Michael DorfIn 1970, the University of Chicago Law Review published an article titled Is Innocence Irrelevant? Collateral Attack on Criminal Judgments by federal appeals court judge Henry Friendly. Judge Friendly was a judicial conservative in the small-c sense, non-ideological, committed to deciding cases narrowly, and an expert legal craftsman. As a young lawyer, Chief Justice John Roberts clerked for Friendly during Friendly's later years, and Roberts is fond of quoting (though not always abiding by) Friendly's aphorism that if it is not necessary to decide an issue to decide a case it is necessary not to decide the issue.Is Innocence Irrelevant? was somewhat uncharacteristic of Friendly in that it offered a controversial policy proposal on a politically contentious issue. Writing in a period of transition from the Warren Court to the Burger Court, Friendly lamented that federal habeas corpus petitions by prisoners sentenced under state law were too often succeeding based on procedural irregularities that had no connection to innocence. To use the more nakedly political argot, federal courts were letting guilty state prisoners off on technicalities. Quoting Justice Hugo Black's dissent in a then-recently-decided case, Judge Friendly offered what he regarded--and what many still regard--as a self-evidently sensible proposition: "the defendant's guilt or innocence is at least one of the vital considerations in determining whether collateral relief should be available to a convicted defendant."The ensuing nearly five decades have proven Judge Friendly prophetic--but probably not in a way that he would have approved. In 1976, the Supreme Court held that habeas corpus would not be available at all for petitioners claiming that otherwise-reliable evidence obtained in violation of the Fourth Amendment was used to convict them. The next year, the Court would make it considerably harder for petitioners who had failed to raise their objections in compliance with state court rules to obtain relief in federal court on otherwise meritorious claims. Other judicial narrowings followed and then, in 1996, Congress passed and President Bill Clinton signed the Antiterrorism and Effective Death Penalty Act (AEDPA), which further limited habeas corpus.The Court decisions and AEDPA have made it much more difficult for prisoners without plausible constitutional claims that bear on innocence to obtain relief via habeas corpus. To my mind, that is understandable if not ideal: understandable because innocents serving prison sentences or awaiting execution suffer a much graver injustice than guilty parties whose proceedings were tainted by constitutional error; not ideal because habeas review once served, but no longer serves, as a means of ensuring that state court judges under political pressure to be tough on crime give full effect to the constitutional rights of criminal defendants.But even if one thinks that Congress and the courts were right to cut back on habeas in cases where prisoners raise claims that speak only to the fairness of the proceedings, not to guilt or innocence, there is cause for alarm. Modern habeas law honors only half of Judge Friendly's agenda. It makes the bringing of habeas petitions by guilty defendants considerably harder than in the Warren Court era. But it also makes it extremely difficult for the innocent to obtain habeas relief. That proposition was on full display late last week in an en banc ruling by the US Court of Appeals for the Seventh Circuit.Spoiler Alert: I will now discuss a case that figures in the Netflix documentary series Making a Murderer. If you intend to watch it but have not yet done so, you might want to bookmark the column and come back here after viewing.For those readers who did not (and do not intend to) watch or have forgotten the basic story of Making a Murderer, it goes like this: (1) From 1985 to 2003, Steven Avery of Manitowoc County, Wisconsin, served a prison sentence for a sexual assault he did not commit; (2) after he[...]



The Embattled Trump Presidency: Lessons from Fiction

Wed, 13 Dec 2017 12:00:00 +0000

By William HausdorffIt’s easy to get overwhelmed by information overload regarding the colorful Trump White House, its defenders and its attackers.  But as I learned from Libra,Don DeLillo’s fictionalized account of the John F. Kennedy assassination, one doesn’t need to know exactly what is happening to understand the main plot lines.  That novel suggested that the essence of the Kennedy story was that there were at least three potentially murderous groups who felt aggrieved. These included Mafia figures furious that he named his brother as Attorney General, anti-Castro figures seething at Kennedy’s lack of support for the Bay of Pigs invasion, as well as pro-Castro figures outraged at the administration’s open hostility to Cuba.As described in Philip Shenon’s excellent non-fiction analysis, the latter group, to which Lee Harvey Oswald belonged, may have been especially enraged by the news of US attempts to assassinate Castro.  In some ways, then, it didn’t matter who ended up pulling the trigger. What are the broad lines of the Trump story here?First, there unquestionably is a multipronged, serious effort to undermine the major sources of news in the US.  Where it’s coming from is not always clear, nor the extent to which it is fully orchestrated.  Nonetheless, Trump, his minions, and his p.r. firms (Breitbart, Fox etc) have been thundering from day one of his campaign against the New York Times, the Washington Post, CNN, MSNBC etc in an undisguised attempt to discredit them. Simultaneously, there are active attempts to destabilize the mainstream media by feeding them false information, as was vividly experiencedby the Washington Post at the hands of “Project Veritas” two weeks ago.   The same people who are verbally attacking the media are financially supporting these efforts to undermine it:  the Trump Foundation directly funds“Project Veritas,” and the Republican establishment, in the person of Virginia Thomas (Clarence Thomas’ wife) on behalf of a political/evangelical group, promptly gave the group an award.  Breitbart, while denyingit was “aware or involved”, euphemistically refers to the scam of trying to pass fraudulent information as an “investigation.”It is difficult to imagine that Project Veritas is the only one trying to poison the waters.  The media is also being undermined, as pointed out by Glenn Greenwald(of Edward Snowden fame), and no friend of Trump’s, by their own sloppiness in rushing to publish anything negative on Trump, especially with regard to Russia, without taking the time to verify the information.  These mistakes, of course, allow Trump and friends to fuel their conspiracy narrative.Greenwald suggests that the sources for some of these errors are Democratic members or staff on the House Intelligence Committee, but doesn’t offer any plausible explanation as to why they would leak information that would be easily demonstrated to be false.  In contrast, such erroneous leaks from Republican operatives would fit right in with the Trump game plan. Secondly, there clearly is a concerted effort to tarnish Special Prosecutor Robert Mueller, and prepare the way for Trump to potentially fire him.  The steadily increasing drumbeat of attackson Mueller from congressional Republicans, flacks like Newt Gingrich, and house organs like Breitbart and Fox News, is not incidental music.  I can’t recall, in my lifetime, such virulent right-wing Republican attacks against other life-long Republicans (not just Mueller, but also Assistant Attorney General Rod Rosenstein and FBI head Christopher Wray.)  It is of course reminiscent of the Joe McCarthy era, which culminated with President Eisenhower being called a communist by his henchmen. Roy Cohn, one-time McCarthy aide, and two decades later Trump’s mentor and lawyer, was in the center of that.  The difference is that Trump IS the president and is leading the attacks.Perhaps even mor[...]



When Liberty and Equality Conflict -- And When They Don't

Tue, 12 Dec 2017 12:30:00 +0000

by Michael DorfMy latest Verdict column dives into the weeds of the Masterpiece Cakeshop case. To summarize and over-simplify, I argue that while there are hard cases that pit liberty against equality, Masterpiece Cakeshop should be deemed an easy case. That's not because the baker has no interests in this case. He may well have a substantial stake in the outcome of the case. It's just that he cannot win on his free speech claim without blowing up anti-discrimination law, and his claim that he has suffered discrimination based on religion does not find support in the record.Here I want to address an issue I use to frame the discussion in the column: Should we understand apparent conflicts between liberty and equality as genuine--as value pluralists like Isaiah Berlin and Bernard Williams argued--or should we regard them as spurious--as Ronald Dworkin did? I'm not going to try to definitively resolve that question, but I am going to try to use it as a way of distinguishing two kinds of cases: those in which the (real or apparent) sacrifice of liberty for the sake of equality is a source of moral regret and those in which it is not.There are many kinds of pluralism, but for present purposes it suffices to say: (1) moral pluralism is not moral relativism; (2) the kind of moral pluralism that I have in mind is value pluralism, under which one can simultaneously support multiple values; (3) for the type of value pluralist I have in mind, the domains of validity of these different values overlap; (4) therefore any resolution in favor of one or another value in this domain of overlap involves a "tragic choice;" and (5) by that I mean that the choice to favor liberty over equality or vice-versa is a source of moral regret, even if it is the right choice.I am contrasting the foregoing account of value pluralism with a view elaborated by Dworkin, even though readers familiar with Dworkin's work principally because of his views about the nature of law may find that confusing. Dworkin famously argued against legal positivism by, among other things, insisting that law includes not only rules with an on/off quality but also principles that have weight and that therefore must be weighed against each other. That sounds like and is a kind of pluralism. However, in other writing with a more purely philosophical bent, especially in the last decade of his life but also before then, Dworkin wrote that he disagreed with the view of Berlin and others that political values--especially liberty and equality--conflict with one another. Dworkin did not deny that tragic choices can arise in life; he denied that the choice between liberty and equality, each properly understood, would ever be tragic. He thought that such conflicts seem to arise only because other thinkers (such as Berlin) use "flat" definitions, treating liberty as the liberty to do whatever one pleases and equality as fully equal distribution of goods. (I think this is not an entirely fair characterization of Berlin's view of liberty or equality, but let's put that to one side.)Dworkin anticipated an obvious objection: We can grant that the flat conception is wrong, but how do we know that a thicker conception will make all of the conflicts go away? Sure, it is possible to gerrymander your definition of liberty and equality in such a way as to make any conflict appear to dissolve, but then you will have simply put the rabbit in the hat right before pulling it out. It's a neat trick if no one sees you putting the rabbit in, but a trick nonetheless.I have made a version of this objection in another context. In our first major article on the debt ceiling, Prof. Buchanan and I explained that constitutional doctrine typically does not acknowledge that constitutional provisions can come into conflict with one another. As an illustration, we described Nebraska Press Ass'n v. Stewart, which we said involved a conflict between the Sixth Amendment right of a criminal defendant to a fair trial and the Fi[...]



Republicans' Vapid Defenses of Reverse-Robin Hood Policies

Mon, 11 Dec 2017 16:40:00 +0000

[Note: This column was revised and edited for clarity at 8:05pm on December 11, 2017.]by Neil H. BuchananAs the Republicans in Congress try to drag their highly unpopular tax bill across the finish line, they have become ever more brazen in admitting what they really think about non-rich people who dare to complain about the feed-the-rich shamelessness of the Republicans' plan.  In case anyone had forgotten, Republicans are again making it clear that they think that non-rich people are lazy, shiftless leeches.An op-ed by two analysts at the New America Foundation cuts through the nonsense and points out the fundamental reality: "Republicans Are Bringing ‘Welfare Queen’ Politics to the Tax Cut Fight."  Senator Orrin Hatch's recent complaint about "people who won’t help themselves, won’t lift a finger and expect the federal government to do everything" merely reminds us of Speaker of the House Paul Ryan's "makers and takers" meme and especially of Ryan's former running mate's infamous "47 percent" comments.  These, in turn, were mere updates of Ronald Reagan's infamous (and completely imaginary) "welfare queen" in 1976 who supposedly worked the system to the tune of millions of dollars of undeserved benefits. Republicans also make arguments that, if taken seriously (which they should not be), would ultimately prove that all taxation (even regressive taxation) is immoral.  Although some Republicans might be willing to own up to that claim, a party that is obsessed with Pentagon spending and spending money to keep brown- and black-skinned people in their places -- which often means out of the country entirely -- needs to have some way of separating acceptable forms of taxation from unacceptable forms.Republicans are stuck, because they have no way to justify tax cuts for the rich without insulting everyone else, and they cannot make choices among taxes because they are committed to the belief that all taxes are inherently bad.  What we end up with is the current mess of a tax bill and the shockingly bad salesmanship on display from the Republicans.In a column last week, I joined in the criticism of a claim by Iowa's long-serving Republican U.S. Senator Charles Grassley, who took a great deal of heat for defending his party's insistence on repealing the highly progressive estate tax by saying, "I think not having the estate tax recognizes the people that are investing, as opposed to those that are just spending every darn penny they have, whether it’s on booze or women or movies."Again, Grassley was roundly trashed for that mindless comment, as he should have been.  As I also noted, however, Grassley regrouped and soon issued a "clarification" of his comments:"My point regarding the estate tax, which has been taken out of context, is that the government shouldn’t seize the fruits of someone’s lifetime of labor after they die.  The question is one of basic fairness, and working to create a tax code that doesn’t penalize frugality, saving and investment. That’s as true for family farmers who have to break up their operations to pay the IRS following the death of a loved one as it is for parents saving for their children’s college education or working families investing and saving for their retirement." It is impossible to take seriously Grassley's claim that his initial comments were "taken out of context," because nothing that he says in his clarification changes the context.  Instead, he simply changes his argument from insulting non-rich people to repeating the Republicans' tired lies about the estate tax.And they are lies.  As I noted in my column last week, there are no examples -- none, zero -- of a family farm breaking up its operations to pay for the estate tax, nor is there an example of a family-owned non-farm business doing so.The law currently exempts nearly $11 million of an estate from taxation, but even at the much lower exemption [...]



The Year of the Terrible

Sat, 09 Dec 2017 14:51:00 +0000

By Eric SegallThe Year of the Terrible started on January 20th when the newly elected President of the United States gave his inauguration speech to the largest, most devoted crowd in the history of inauguration speeches. During that speech, he made clear what kind of role model and world leader he was going to be by proudly proclaiming“From this moment on, it's going to be America First…. We will follow two simple rules: buy American and hire American.” Of course, while Trump was speaking, his National Security Advisor Michael Flynn was allegedly on the phone textinga comrade that a joint nuclear power project with Russia was “good to go.” The melding of the Kremlin and the White House was off to a very good start.The Year of the Terrible continued as Trump started to name his inner circle of top and most trusted advisors. Three of those folks, Chief of Staff Reince Priebus, Press Secretary Sean Spicer McCarthy, and Steve Bannon are no longer serving in any official capacity. But no worries, they have been replaced with General Kelly, Sarah Huckleberry Jam Sanders, and an unnamed Russian Counselor who will be identified after impeachment. Meanwhile, Trump filled his Cabinet with experts such as Ben Carson whose expertise in housing policy derives from his many years working as a brain surgeon, and former Governor of Texas Rick Perry as the Secretary of Energy in honor of his faux academic glasses that serve the same purposes for Perry as the diploma did for the Scarecrow in the Wizard of Oz.The Year of the Terrible moved on as Trump’s new Attorney General Jefferson Beauregard Sessions III had to recuse himself from the Russian investigation because he never, not once, not ever, had met a Russian. Meanwhile, just one day after Trump fired FBI Director James (throw the election to Trump at the last minute) Comey, the President had a top secret, incredibly important meetingin the Oval Office with two top Russian Officials to discuss high level America first matters. Of course, pursuant to long standard procedures, only the Russian media, not the US media, were allowed to take pictures of the meeting.While Trump was working hard on his Russia First policy, there were serious goings on over at the Anthony Kennedy Supreme Court Building. Making good on a campaign promise to only appoint judges who say they are originalists but really aren’t, Trump nominated Neil Gory Gorsuch to the Supreme Court. During his confirmation hearings, Gorsuch proudly defended his dissenting vote in a case where two other judges felt a truck driver was legally justified leaving his rig behind in a blizzard because the alternative was death. Pro-life Gory thought death would have been preferable. In other Supreme Court news, the Notorious RBG continued her Olympic level exercise routine, hoping to stay in shape long enough to retire under President Mark Cuban. And, the Justices decided to hear numerous society changing cases such as whether the GOP can continue to gerrymander Democrats out of existence, and whether a Colorado Baker can put a sign in his window saying “No wedding cakes for gay people.” We know two things for certain about all this: Kennedy will reign supreme (which is actually a good thing), and Gory will vote in favor of the Baker, but might put a copy of the “no wedding cakes for gays” sign on his office door as a fun remembrance of his first year on the Anthony Kennedy Supreme Court.The Year of the Terrible moved on with much stress caused by North Korea firingmissiles in every direction, showing that their fearless Supreme Leader Kim Jong Un might someday aim said missiles at Toledo, Ohio. This caused much consternation in the White House, so President Trump decided to respond diplomatically by calling the Supreme Leader “Little Rocket Man,” which in turn led the Supreme Leader to respondthat Trump is a “Dotard” and a “Frightened Dog.” Those insults might offend[...]



The Other Kind of Sexual Harassment

Fri, 08 Dec 2017 13:30:00 +0000

by Sherry F. ColbIn my column this week, I discuss what I take to be at least one reason for the longstanding reluctance (by men and women) to believe women who say they have been raped or sexually harassed by seemingly normal, ordinary men. The reason has to do with the disturbing implications of acknowledging that such conduct has occurred. Disbelief in individual cases then functions as a form of denial across the board. In this post, I want to talk about a type of sexual harassment that has not been on the national radar lately but that is nonetheless a significant impediment to women's equality and to their sense of safety and wellbeing in the workplace.If one is paying any attention at all to the news these days, one has noticed the tidal wave of sexual harassment (and sexual assault) complaints against public figures. Though the number of complainants (as well as the number of accused perpetrators) is disturbing, it also (one hopes) signals a change in how people perceive such conduct. Victims need no longer feel ashamed and thus unable to speak out about what has befallen them through no fault of their own, and potential perpetrators might feel deterred from their planned behavior by the prospect of being held accountable. They can no longer rely on silence to shield them from any consequences. At least some of the people accused (with at least one notable exception occupying the White House) have faced serious repercussions for sexually predatory conduct that in some cases included sexual assault.In reading about most of the sexual harassment stories in the news, one could easily come to the conclusion that sexual harassment necessarily includes an element of sexual desire or arousal. Some men were accused of forcibly kissing women, others of groping women without consent, and still others of exposing themselves or masturbating in front of women. And the victims were not all women. But what most share in common is a predator's having sought to gratify his sexual appetites by preying on either an adult or a child who showed no reciprocal interest or desire (or who affirmatively showed a lack thereof).These examples of sexual harassment are worthy of condemnation and punishment. They do not, however, exhaust the types of sexual harassment that people experience, in the workplace or otherwise. To qualify as a sexual harasser, a person need not either experience or manifest any sexual desire or arousal for his victim or for anyone else. Sexual harassment can consist of creating a hostile environment in which the victim is expected to function, where the hostility is connected to the victim's being male or female (or non-binary).Some examples should provide a ready illustration. Imagine that a woman goes to work at an office shared by many other employees. Imagine further that after the woman is hired, unknown co-workers secretly begin to post insulting messages about the woman in her cubicle, messages like "go home, bitch" and "a woman's place is in the home" or even something that targets her for a combination of her gender and her age, such as "you're too old for this place" and "get lost grandma," where an older man could expect to avoid similar messaging. In Price Waterhouse v. Hopkins, the U.S. Supreme Court held that an employment decision (not to promote a woman to partnership) could violate the law prohibiting sex discrimination in employment where an express reason for the the decision was a woman's failure to conform to the sex role stereotype (of wearing makeup and jewelry, among other things). It is thus actionable sexual harassment to mistreat a woman at work, even if sexual desire played no part in the mistreatment and even if it is precisely a woman's lack of "femininity" that triggers the abuse rather than the unadorned fact of the woman's sex.It is useful to understand these types of conduct as sexual harassment, because such an unde[...]



Estates, Death, and Relentless Republican Lies

Thu, 07 Dec 2017 16:16:00 +0000

by Neil H. BuchananThe repeal (or near-repeal) of the estate tax is by no means the largest part of the Republicans' tax plans, but it is at the philosophical core of their anti-tax efforts.  Understanding how and why Republicans insistently lie about the estate tax provides a window into their longstanding effort to reward the wealthy simply for being wealthy and to punish everyone else for not being virtuous enough to be rich.Untroubled by evidence and unencumbered by logic, the Republicans have been telling tall tales about the estate tax literally for decades.  Shamefully, many Democrats have bought into those lies, with the result that the estate tax is now a husk of what it should be.  Rather than full repeal, I suspect that the current political mess will leave an even smaller and less effective estate tax in place, thus allowing Republicans to continue to campaign against it -- and to continue to use it to raise funds from wealthy donors.No matter whether my prediction turns out to be true, perhaps the most interesting and depressing aspect of the Republicans' anti-estate tax howling is that it shows how completely they are willing to put ideology before reality.  And they have been doing so for decades, long before Donald Trump's garish reality show allowed other Republicans to pretend to occupy a somewhat higher ground.After briefly summarizing how the estate tax works, I will use Senator Chuck Grassley's recent arguments (and I use that term loosely) against the estate tax to illustrate the rank dishonesty and elitism of the Republicans' anti-tax crusade.The estate tax is conceptually simple.  Upon a person's death, the executor pays various costs (funeral, administrative fees, and so on) from the estate and then distributes the decedent's tax-free charitable contributions.  An "exemption amount" that is also tax-free is then deducted from the remaining estate.  Only then is a forty percent tax levied on the remainder.Consider an example: The surviving spouse of a couple dies in 2017 and leaves behind a $20 million estate, and after paying various expenses and making designated contributions to the spouses' colleges and other charitable organizations, $14 million remains.  Currently, the couple is allowed a nearly $11 million exemption, so there is only three million dollars to which the estate tax applies, which at 40 percent results in a $1.2 million estate tax bill on a total estate of $20 million, for an effective rate of six percent of a twenty million dollar estate.Unfortunately, even fairly good newspaper reporters make bone-headed errors when describing the estate tax.  For example, in an otherwise fine article in The Washington Post this week, the reporter wrote: "The estate tax, often described by Republicans as the 'death tax,' is levied only on the very rich, passing on assets of more than $5.5 million for individuals and $11 million for married couples. The current tax on estates is 40 percent of an individual’s wealth at death."No, the estate tax is most definitely not 40 percent of an individual's wealth at death.  The reporters' previous sentence itself shows that that cannot possibly be true.  Even if this is merely sloppy editing or a misguided effort to shorten a description that might make readers' eyes glaze over, the result is to vastly overstate the extent of estate tax liability.And then there is the Republicans' "death tax" rhetoric, which The Post's reporter at least had the decency to put in scare quotes.  It has been extensively and repeatedly documented that the Republicans hired a public-relations firm in the 1990's to test various negative labels for the estate tax, and the one that the focus groups hated the most was "death tax."  Thus was born a political hobbyhorse.Yet a recent article in The New York Times, under the h[...]



Three Problems With the SG's Klan Hypo in the Masterpiece Cakeshop Oral Argument

Tue, 05 Dec 2017 23:05:00 +0000

by Michael DorfDuring the oral argument in the Masterpiece Cakeshop case, Solicitor General Noel Francisco repeatedly used the following hypothetical example to make the point that a baker's creation of a custom cake (regardless of whether it contains an articulate message) is speech: Could the government "compel an African American sculptor to sculpt a cross for a Klan service?", the SG asked. And if not, doesn't that show that sculpting for a ceremony to which one objects--whether the medium is wood for a cross or dough for a cake and whether the ceremony is a wedding or a cross-burning--is expression to which the compelled speech doctrine applies?The argument in the case was wide-ranging, with various outcomes possible. For at least some justices the case poses difficult line-drawing problems. But the SG's cross example does not do the work that he seems to think it does. Here I'll highlight three objections to it. One of them was offered during the oral argument itself by the lawyers opposing the baker, but went by quickly enough that it might not be sufficiently appreciated. The other two objections are my own contribution.Objection 1: Ideology is not a forbidden ground in anti-discrimination law.After a little cross-talk, attorney Frederick Yarger (arguing for Colorado) gave what should have been an obvious objection to SG Francisco's example: Colorado's anti-discrimination law does not forbid retailers from denying service to customers based on their ideology. Indeed, neither does anti-discrimination law generally. Thus, when the hypothetical African American sculptor refuses service to the Klan based on disagreement with the message of a Klan "ceremony," the sculptor does not violate the law and so there is no occasion for his free speech to be infringed.Curiously, the Solicitor General didn't seem to realize this.Neither did Justice Gorsuch, who later used a variation of the SG's cross example. He asked David Cole (arguing for the same-sex couple) to imagine a baker who bakes a cake with a red cross on it for an anniversary celebration for the Red Cross but not for the Klan. Justice Gorsuch chose this example because he was pushing back against Cole's suggestion that there would be no valid free speech objection if the baker or seller of other goods was willing to sell the same product to one customer but not another. The point Justice Gorsuch was trying to make with the example was that the speech content of the sale could differ based on the purpose for which the product will be used.That's a fair point, but the example doesn't work for Justice Gorsuch anymore than it worked for SG Francisco, because Colorado's anti-discrimination law doesn't forbid retailers from discriminating against the Klan based on its ideology. So there's no conflict between the state law and free speech here. And just as Yarger pointed out the basic error when Francisco committed it, so Cole pointed it out when Justice Gorsuch committed it.I say this error is curious, because it would have been relatively easy for either Francisco or Gorsuch to construct a better hypothetical. Indeed, Justice Breyer bailed his colleague out by modifying Gorsuch's hypothetical example so that it's not the Klan that wants the cross cake but someone who has a religious belief that overlaps with Klan ideology. Religious discrimination is forbidden by Colorado's anti-discrimination law, so in this variant there is a real conflict.Alternatively, we could modify the Francisco/Gorsuch examples by considering a state public accommodations law that does forbid discrimination based on a customer's ideology or, more broadly still, that imposes the equivalent of common carrier obligations on merchants.Because we can tweak the SG's and Justice Gorsuch's Klan examples to make them work better for the baker's argument, my objection 1 is to the rigor of [...]



Originalism and Textualism in Action: Not Constraining and Not Neutral (Part 2)

Tue, 05 Dec 2017 12:30:00 +0000

by Joseph Kimble      Several readers made thoughtful comments on my original post. They deserve equally thoughtful responses, which I’ll try to provide below.     The short references are to the two articles I cited in the original post, one in The Scribes Journal of Legal Writing and the other in the Wayne Law Review.     Most of the comments centered on the Wayne article about overrulings by the Michigan Supreme Court. (Reminder: the 81 overrulings by the Republican majority were 96.3% ideologically conservative.) Few readers addressed the evidence about Justice Scalia’s opinions in the Scribes article: 6 empirical studies (pp. 30–35) and 11 scholarly examinations (p. 35, note 96) that seriously militate against any claim that his textualism was nonideological, politically neutral, objective — the simple product of rule-of-law judging. How much evidence does it take to confirm what (in Prof. Dorf’s words) is “blindingly obvious” to anyone familiar with the tilt of those opinions?     As for the comments on the Wayne article, here they are in bold, each followed by my response.     Some of the overruled tort cases must have been doing pure common-law tort law, and others overruled common-law discovery rules. So perhaps the overrulings were not done in the name of textualism.     Here are some more numbers. Of the tort cases overruled by the Republican majority, 73% were entirely or primarily grounded in textual analysis (and most of those were entirely textual); another 9% involved some textual analysis. For the nontort civil cases, the numbers were even higher: 95% grounded in textual analysis.     I don’t propose to cut and sort the civil cases any further, or to revisit the criminal cases (33 total, 32 of which favored the prosecution). I stand by my original assertion that the overrulings were done in the name of textualism. In fact, one of the Republican justices (now the chief justice) said so himself (Wayne, p. 353):[T]he overrulings of precedent occurring during the past seven terms have overwhelmingly come in cases involving what the justices in the majority view as the misinterpretation of straightforward words and phrases in statutes and contracts . . . .     That was in 2007. It didn’t change in the years that followed. Time after time, the Republican justices proclaimed that “plain language” compelled the (conservative) result, that previous majorities had misread the words, and that stare decisis had to give way.      Overrulings are not necessarily good evidence of how neutral or constraining textualism is because they tend to be harder cases that divide courts along ideological lines.     But isn’t that exactly the point? In the harder, high-profile, important cases, the Michigan Supreme Court acted in a relentlessly ideological way. Is that okay, even in the face of textualists’ claims that they are “neutral arbiters whose function is merely to interpret the laws”? (Wayne, p. 354.) Perhaps textualists have qualified that claim to say that they are not so neutral when it comes to overrulings or to cases with broad precedential importance. Is there such a disclaimer or caveat in the textualist literature? A prominent one?     Besides the Michigan Supreme Court cases, you might check Geoffrey Stone’s study of the 20 most important United States Supreme Court cases from 2000 to 2013. Justice Scalia’s voting record? 100% conservative. And Stone found no principled reason for it. The conservative justices’ votes “were determined first and foremost by their own personal policy preferences.” (Scribes, pp. 34–35.)     I chose the Michigan Supreme Cou[...]



Dialing the Shamelessness and Dishonesty Up to Eleven .. Twelve ... Thirteen ...

Mon, 04 Dec 2017 16:15:00 +0000

by Neil H. BuchananI am not the only observer who was surprised that the Republicans managed to get out of their own way and actually pass two versions of a relatively large change to the U.S. tax system.  (What will happen as they try to agree on a final version is, of course, anyone's guess.)  I was not, however, especially surprised by the added degrees of shamelessness and dishonesty that the Republicans were willing to bring to their effort.After all, anyone who has been paying attention -- and who is not either a partisan Republican or a diehard believer that both parties are always equally to blame -- has seen this coming.  Each time a big policy debate has erupted over the past generation, the Republicans have outdone themselves and degraded our political system in ways that were once unthinkable.Consider how well all of the Republicans stuck to their talking points during the current debate about taxes -- and also consider just how delusional those talking points were.  Yet even with all facts and logic amassed against them, they managed to keep a collective straight face while refusing to allow reality to intrude:-- Polls clearly showed that the public did not want politicians to be wasting time on a tax cut bill, and people hated the bills that the Republicans produced, but Republicans nonetheless insisted that they were responding to the will of the American people.-- The economy is too strong for there to be any meaningful demand-side boost from a tax cut, and the Fed will in any case increase interest rates to prevent inflation from increasing -- which is not to say that there would be much (or any) increased demand from a tax cut that puts money in the hands of people and businesses who are not cash constrained.  Republicans insisted otherwise, of course.-- The vast body of economic research rejected the long-debunked Laffer Curve claim that the bill would "pay for itself," and the only group of economists who said otherwise made transparently dishonest arguments to reach their desired conclusion.  Yet nearly every public pronouncement from Republicans included claims that the tax cut would not increase the debt.-- The other supply-side argument, that is, the claim that a big tax cut will encourage businesses to expand productive capacity, finds even less support from independent economic analysis.  Businesses have all kinds of money to invest, but they are choosing not to do so.  But who cares?  Republicans insist that corporations are held back by "the highest tax rate in the world," which is a completely dishonest claim.-- Senate Republicans decided to gaslight the public by telling them that the paltry tax cuts for some middle-class people were temporary but somehow not really temporary.-- And of course, the whole process was carried out at breakneck speed by a party that had complained bitterly (and without any basis in reality) about being railroaded in 2009 and 2010 by Democratic majorities in Congress.  [Note: The years in the previous sentence were originally listed in error as 2011 and 2012.]I will point the finger at particular Republicans in a moment, but the group effort at dishonesty is noteworthy in and of itself.  A news article in The New York Times that ran immediately after the Senate passed its bill provides a fascinating description of how the Republicans spun inconvenient facts to justify their rash actions.For example, the Republicans disparaged an analysis from the nonpartisan staff of the congressional Joint Committee on Taxation (JCT), which issued a report that contradicted the Republicans' talking points.  Why did the contents of this report not give more than one Republican pause?"Republicans wondered why the analysis arrived on Thursday, the day the[...]



Capitalists Against Capitalism

Fri, 01 Dec 2017 15:54:00 +0000

by Neil H. Buchanan I have no idea why it still surprises me, but I am always amazed when conservatives who present themselves as the brave defenders of capitalism inadvertently reveal that they have absolutely no idea what capitalism is or how it works.  A serial offender is Donald Trump's budget director, Mick Mulvaney, who is now in the midst of a fight to take over the Consumer Financial Protection Bureau (CFPB).As part of his public relations campaign, Mulvaney announced several days ago that Trump "wants me to get [the CFPB] back to the point where it can protect people without trampling on capitalism."  This is more than a bit odd, because Mulvaney has made it clear that he never thought the CFPB was at the point where it was not trampling on capitalism, and he and Trump clearly want to destroy the agency, not bring it back to some golden age of capitalism-friendly consumer protection. The big point that Trump and Mulvaney are making, after all, is that the agency that has aggressively enforced anti-fraud laws to the benefit of American citizens must be stopped because its efforts to force Wall Street banks to obey the law are an affront to capitalism itself.  Notice that this is not even a statement that the underlying laws that the CFPB enforces are anti-capitalist (although I am sure that conservatives oppose those laws as well).  Mulvaney and Trump apparently believe that forcing banks not to break the law is itself a problem.This is what we might call the Dumb Guy's Version of Capitalism.  A not-very-bright man hears that rich guys with lots of power say that they like capitalism and that they hate anything that limits their power, especially governments and labor unions.  Therefore, anything that rich, powerful guys like must be what capitalism is, and everything they hate must be an assault on baseball, hot dogs, apple pie, and (especially) Chevrolet.It just so happens that that is completely wrong.  It was never true that what's good for General Motors is automatically good for America, and it is now even more important to understand the difference between being in favor of capitalism and being slavishly in favor of everything that business leaders say they want.Importantly, this applies not just to the relatively small debate over the future of the CFPB but to every aspect of the Republicans' agenda.  Trickle-down tax cuts, gutted environmental regulations, weakened consumer and worker protections might lead to record-setting stock prices, but they are bad for capitalism and bad for America. In the Dumb Guy's Version of Capitalism, any rule that prevents businesses from doing whatever they want is bad, because the pursuit of profit is always good and rules necessarily prevent some businesses from increasing their profits.  The presumption is that Adam Smith's (horribly misunderstood) invisible hand is all that is needed to make the world a better place.Yet a famous Supreme Court case, Brown Shoe Co. v. U.S., made it clear that the point of free markets is not to guarantee the success of particular businesses, because what is important is "the protection of competition, not competitors."  That somewhat Delphic statement means that there is nothing at all wrong with a world in which companies fail, so long as the process that led to such failures was open and fair.And what used to be known as "enlightened self-interest" still leads some businesspeople to conclude that Wild West rules are bad for competition.  People who want to run honest used car dealerships, for example, understand that they will either be driven out of business or forced to become dishonest unless they are operating under laws that give potential customers confidence that they are not goi[...]



The Four Lies and a Truth at the Heart of O'Keefe's Failed WaPo Sting Attempt

Thu, 30 Nov 2017 12:30:00 +0000

by Michael DorfRight-wing provocateur James O'Keefe and his organization Project Veritas were in the news this week, but not in the way that he hoped. O'Keefe sent a woman to talk to Washington Post reporters falsely claiming to have had an abortion as a teenager after she was impregnated by Roy Moore. Presumably, O'Keefe hoped that the Post would run the story, whereupon he would reveal that it was false, and this would show that: (a) the Post has a liberal bias that leads it to cut corners when reporting negative news about conservatives; and therefore (b) prior WaPo reporting on Roy Moore's sordid sexual history is not credible. The Post foiled O'Keefe's plans by fact-checking the woman's story. When it did not check out, the Post did not run her false story, instead running the story of how O'Keefe tried to fool the Post.There the episode might have ended were it not for the fact that O'Keefe and his acolytes do not just run stings against liberal targets. To use the language of a forthcoming article in the University of Pennsylvania Journal of Constitutional Law by Prof Sid Tarrow and me, they combine stings--undercover reporting aimed at exposing wrongdoing--with scams--misrepresentation of the results of the stings through selective editing. Thus, even after the Post revealed that it was onto him, O'Keefe released a deceptively edited video suggesting that the Post was really just trying to cover up some other form of wrongdoing. This too was revealed by the Post.Even as Prof Tarrow and I deplore scams, we acknowledge that there should be some protection for stings. We agree with Profs Justin Marceau and Alan Chen, who argue in a recent Columbia Law Review article that the First Amendment ought to be construed to permit some deception by journalists (and others performing journalistic activities) to gain access to persons or property in order to discover matters of public concern. Protecting scammers like O'Keefe may be the cost of protecting real investigative journalism by honest journalists and activists.If, as Marceau and Chen, and Tarrow and I, and, in another piece, Prof Colb and I, have argued, journalists and activists engaged in journalist-like activities are sometimes justified in misrepresenting who they are and what they're doing in order to gain access to people or places in order to expose otherwise hidden wrongdoing, O'Keefe and his ilk engage in unjustified lying. In a moment I'll catalogue the unjustified lies but before doing so I want to deal with a threshold objection that even the initial lie was unjustified because the target of the sting was a news organization. That objection is, in my view, misguided.Someone might think that journalists and activists are never justified in lying to gain access to otherwise hidden places or reticent people. For reasons discussed in the pieces I've mentioned, I disagree. Journalistic stings have a long and distinguished pedigree from before the time of Upton Sinclair. I've defended such stings for causes I support (like animal rights) as well as those I oppose (like the anti-abortion movement). The Planned Parenthood episode that forms the backdrop for my CNN essay with Colb and my forthcoming paper with Tarrow was arguably justifiable as a sting. The problem was the scam, i.e., the misleading editing of the footage: The anti-abortion activists were not content to expose Planned Parenthood officials talking callously about fetal remains (which the officials did); they embellished by making the officials appear to be selling fetal body parts for a profit (which they were not).Suppose that you agree with me, my co-authors, and Marceau and Chen that lying is sometimes justified to gain access to otherwise off-limits sites or pers[...]



Why It's So Hard For The Senate To Purge Offenders

Wed, 29 Nov 2017 14:30:00 +0000

by Michael DorfMy latest Verdict column explores the reasons for the difference in reaction time to sexual harassment, sexual assault, and other sexual misconduct in the private sector (thus far mostly Hollywood and the media) versus in government. I note that actors, directors, journalists, etc., have been meeting with swift termination, while elected officials have not been. I offer a couple of factors as key to the explanation of the disparity. First, polarization makes people likely to view both the seriousness and truthfulness of the allegations through a partisan lens. And second, even when people accept that "their guy" did the thing and it was bad, it is instrumentally rational to stick with your scoundrel if he will vote as you expect, rather than to jump ship in favor of an upstanding citizen of the rival party.There are other factors at work too, but here I want to focus on those circumstances in which the constitutional replacement mechanism prevents members of a party from abandoning a compromised official, whether the problem is sexual misconduct or something else. To make matters concrete, suppose that a Senator is embroiled in a scandal that would justify his expulsion under Art. I, Sec. 5, cl. 2. Let's imagine that he has repeatedly exposed himself to members of his staff. However, the Senator is a Democrat from a state that happens to have a Republican governor--or vice-versa. Or perhaps the Senator has only just narrowly won election, so that even if a governor of his own party would appoint a temporary successor, a special election for the balance of the term would risk flipping a seat. Under such circumstances, Republicans will be reluctant to expel a Republican Senator and Democrats will be reluctant to expel a Democratic one. And because it takes a 2/3 vote of the Senate to expel a member, that could mean that the scoundrel will serve out his term.Gaming this scenario out, the only time that Republicans would be willing to vote to expel a bad-acting Republican would be when he hails from a state with a Republican governor that reliably elects Republicans to the Senate, and likewise for Democrats. Indeed, even this scenario may not be safe, as reliably Democratic Massachusetts discovered after the death of Ted Kennedy led to the Senate victory of Republican Scott Brown in a special election.That's not to say that it would never be in a party's institutional interest to expel a member. If Roy Moore wins the Alabama special election and the Republican leadership concludes that he taints the Republican brand too much, Senate Republicans might vote to expel him (assuming they have the power to do so for pre-Senate misconduct). But even if so, Alabama is a special case. It is hard to imagine a Democrat winning against a Republican who is not a likely pedophile. After all, the Democrat running right now still might lose to one who is.Thus, it is fair to assume that there will be some number of Senators who would be expelled based on the awfulness of their conduct alone but will manage to serve out their terms because members of their own party do not want to risk losing the seat either temporarily (to a governor of the other party) or for the balance of a six-year term (in a special election). This is not the largest problem facing the republic, to be sure, but it is a problem. In principle, this same problem could occur in the House, but I focus on the Senate because each seat is worth so much more, given the length of terms and the number of members.Can anything be done about the problem I've just identified? Or is it pretty much baked in via Art. I, Sec. 5, cl. 2 (requiring a 2/3 vote for expulsion) and Section 2 of the 17th Amendment (authorizing specia[...]



How Should a Committed Originalist Decide Masterpiece Cakeshop?

Tue, 28 Nov 2017 20:00:00 +0000

By Eric SegallNext Tuesday, the Supreme Court will hear the case of the Colorado baker who refuses to allow his products to be used in same-sex wedding ceremonies or celebrations. Colorado courts found that his refusal violated a state law prohibiting vendors from discriminating on the basis of sexual orientation. The baker, Jack Phillips, claims that the Colorado law, as applied to him, violates the First Amendment’s speech and religion clauses. This collision between anti-discrimination laws protecting gays and lesbians on the one hand and opponents of same-sex marriage on religious and free speech grounds on the other hand is the latest battle in the national culture wars. Justices Gorsuch and Thomas both claim to be committed originalists. Since it is likely the four liberals on the Court will rule in favor of Colorado, one more vote for the State should result in its victory. How should a committed originalist decide this case?            To discuss the question, we first must define what it means to be a “committed originalist.” These days, that it is no easy feat. But it is likely that most originalists would agree with the following three propositions: 1) the meaning of the constitutional text is fixed at the time of ratification; 2) judges should give that meaning a primary role in constitutional interpretation; and 3) pragmatic modern concerns and consequences are not allowed to trump discoverable original meaning (although adhering to precedent might).           Phillips argues that Colorado’s non-discrimination law as applied to him violates the First Amendment by abridging his right to free speech and his right to the free exercise of religion. To resolve those claims a committed originalist would want to know what the words of the First Amendment meant either in 1791 when it was ratified, or in 1868, when the Fourteenth Amendment was ratified (because according to later Supreme Court cases, the Fourteenth Amendment incorporated the First Amendment against the states, as the First Amendment itself only mentions Congress).            The State of Colorado is not stopping Phillips from saying anything he wants at any time or in any place on any topic. He is completely free to protest against same-sex marriage as loudly and as often as he pleases. Additionally, according to the facts, Phillips was never asked to place any message on the cake (he told the plaintiffs he could not provide any cake for their wedding party, and they left the store immediately afterwards). Instead, Phillips’ argument is that the state is forcing him to express himself against his will because the act of making a cake, even a generic one, for a wedding celebration forces him to express support for that wedding.            There is no plausible argument that the original public meaning of the word “speech” in 1787 or 1868 would have included the selling of a generic wedding cake with no message on it. Although it is possible, as Eugene Volokh has argued, that the founding fathers might have found certain expressive conduct to be protected by the First Amendment, selling baked goods is not expressive conduct unless there is an actual message on the goods. Selling a generic cake is no more expressive than selling dinner rolls or corn chowder, and no one that I have read is suggesting the founding fathers would have thought otherwise, even if symbolic and verbal expression were both protected “speech.”    &nbs[...]



Dementor ideas—and how to survive them

Tue, 28 Nov 2017 12:30:00 +0000

By William HausdorffThe glimmers of hope from the most recent state and local elections in Virginia and elsewhere paradoxically made me aware of how thick is the cloud of gloom that had descended on many of us since the previous US national election.  This gloom that has made many of us question, for the first time, the very resilience of the US political democracy.In trying to cope with this, Masha Gessen drew on her previous life in a gloomy environmentin an excellent essay:…a decade and a half in Putin’s Russia taught me something about living in an autocracy. I am familiar with the ways in which it numbs the mind and drains the spirit. In contrast, I have recently been pondering the Dementors described by J.K. Rowling in her Harry Potter books:Dementors are among the foulest creatures that walk this earth. They infest the darkest, filthiest places, they glory in decay and despair, they drain peace, hope, and happiness out of the air around them... Get too near a Dementor and every good feeling, every happy memory will be sucked out of you. If it can, the Dementor will feed on you long enough to reduce you to something like itself... soulless and evil. You will be left with nothing but the worst experiences of your life.While it’s tempting to consider Trump the Dementor-in-Chief, a simple thought experiment reveals he is not the sole source—if he were removed from office tomorrow, even if a cause for great celebration, would the gloom lift overnight?  We would still have white nationalism, Pence, the Tea Party Congress, etc.  True dementors are much more insidious and subtle.I’m thinking that, rather than individuals, no matter how vicious and repellent, the true dementors may be poisonous ideas that paralyze our thinking about the future of American society.  The initial step in dealing with these is to become aware that there are several out there.The most prominent dementor ideas, of course, stem from the fact that approximately half of the voting population actually voted for the openly racist, sexist, bile-spewing Trump.  In the convincing words of Ta-Nehisi Coates, 1. Not every Trump voter is a white supremacist. But every Trump voter felt it acceptable to hand the fate of the country over to one.This spawned a corollary dementor thought: 2.  Given the right circumstances in the future, such as an economic depression, there seems little doubt the US could easily vote in a true fascist.  Indeed, it has recently been proposedthat Trumpism will long outlive Trump, and end up being led by a much more skilled and dangerous politician.Some other potent dementor thoughts, well known to the readers of Dorfonlaw, are based on straightforward extrapolations of Trump’s current behavior:3.  The “discovery” that the President can openly use the powers of the federal government to enrich him or herself, and there’s nothing anyone can do to stop it short of impeachment.  On the one hand, a high profile group of lawyers and legal scholars have argued that the emoluments clause is indeed relevant to and has been flagrantly violated by this President.  Yet it sounds from the recent oralargumentsin a Federal courtroom in New York that the judge may be en route to passing the buck to the Republican Congress to resolve—i.e., avoid--the issue.  4.  The “discovery” that the President has unlimited power to pardon anyone, perhaps even himself, and thereby to block any investigation of his wrongdoing. It is indeed difficult to be optimistic that Trump won’t simply pardon Manafort, Flynn, Kushner and all the rest without missing a beat.  Whi[...]



Of Magic Asterisks, Time Bombs, and Other Republican Deceptions

Mon, 27 Nov 2017 14:45:00 +0000

by Neil H. BuchananThe Republicans' attempt to sell their damaging and regressive tax plan is proceeding pretty much as one would expect.  They are making unsupportable economic claims while endlessly repeating an up-is-down-freedom-is-slavery-everything-will-be-different-this-time big lie, claiming that their proposals are all about improving the lives of middle class people.  This has become standard operating procedure for Republicans in the twenty-first century.Although we have long since become accustomed to most of this, we must constantly remind ourselves that it is a very sad state of affairs when we find ourselves saying, "Sure, one of the two major political parties cannot make an honest case even for its most fervently held policy goal, but what are you gonna do?"  Even so, at this point it would barely be worth writing yet another column on this topic if there were not some new aspect to the Republicans' relentless, pathological dishonesty.And as it happens, there is something new going on in late 2017.  The Republicans have openly embraced not only fantasy economic forecasting but fantasy political forecasting as well.  They have decided to rest their political case on the assertion that the future tax increases for lower- and middle-class people that are necessarily built into their scheme will never happen, because today's Republicans just know that a future Congress will never let them happen.This is even worse than it sounds.  Indeed, it represents an effort by Republicans to ignore very recent evidence about how the political process can go off the rails.  They are telling non-rich Americans to trust them, even though these same Republicans have shown no ability to predict their own future actions.Remember the "sequester"?  That was the set of future automatic spending cuts that were included in a 2011 spending bill but that supposedly would never happen, because we all knew (or thought we knew) that everyone would find them so unacceptable that they would be repealed before they ever happened.  And then they happened.Republicans apparently have conveniently forgotten all about that mess.  To understand why that matters so much today, we first have to expose the latest clumsy sleight of hand that is embedded in the Republicans' current strategy.The Republicans' basic move works like this: In order to keep the official estimate of the ten-year cost of their regressive tax cuts below the limit that they imposed on themselves (which they decided was necessary, because otherwise they would need to compromise with Democrats), they set up their plan so that taxes would rise for many/most non-rich people before those ten years will end.These stealth tax increases include putting time limits on various middle-class-friendly provisions and adopting an artificially low official inflation measure.That latter proposal is deeply ironic for a party that views Ronald Reagan as its spiritual hero.  One of Reagan's most admired moves, after all, was to eliminate "bracket creep," by which inflation automatically pushed people into higher tax brackets even though their wage and salary increases were merely holding their real buying power steady (or, worse, even if they were actually losing ground in real terms).Now, however, Republicans are proposing to increase many people's taxes by deliberately understating the effects of inflation.  Apparently, they are willing to do anything to give tax cuts to rich people and large corporations, up to and including repudiating their patron saint.The bottom line is that, unless a future Congress [...]



Reconsidering the Heckler's Veto Principle

Wed, 22 Nov 2017 13:00:00 +0000

by Michael DorfAs I noted here last week, on Monday, UC Berkeley Law School Dean Erwin Chemerinsky delivered two lectures at Cornell on "Free Speech on Campus." He was thoughtful and erudite, and I say that because it's true, not only because Dean Chemerinsky said he agreed with everything I said in my preview blog post!I'm not going to try to recap everything Dean Chemerinsky said. Instead, I want to focus on what he described as a gray area: the scope of the obligation of government--including public universities like UC Berkeley--to pay the added safety costs associated with speakers with highly controversial views.Dean Chemerinsky recited a fact he has previously highlighted (e.g., here): When conservative columnist/podcaster Ben Shapiro spoke at Berkeley, the university spent $600,000 on security; it was prepared to spend even more for the "free speech week" that Milo Yiannapoulos was ostensibly planning.Thus, Dean Chemerinsky identified what he described as an open question in the law that is also a problem. On one hand, if a public university where highly controversial speech is planned shuts out a speaker on the ground that security costs are too high due to the risk of violence occasioned by people who oppose the speaker's message, that amounts to a heckler's veto; on the other hand, universities have limited budgets. Dean Chemerinsky asked whether Berkeley would be obligated to spend millions if, say, Yiannopoulos planned and executed a "free speech semester."Note that this problem is hardly unique to universities. Speakers and groups with extremely unpopular views impose similar security costs on state and local governments when they hold marches and rallies. Must the government spend enormous sums to provide security for neo-Nazis who decide they want to march in some town? The 1992 SCOTUS case of Forsyth County v. Nationalist Movement seems to imply that they must.Dean Chemerinsky recognized that this is a genuine policy dilemma to which there is no ideal solution. His solution would be to permit the public university to take security cost into account in deciding whether to host a speaker, but to place the burden on the university, if sued, to show that the decision to deny a speaker access was based on an assessment of actual expected security cost--i.e., that the added cost of security was not a pretext for official hostility to the speaker's unpopular viewpoint.That may well be a reasonable solution, but  it is not valid under Forsyth County, at least as I read the case. When I pressed Dean Chemerinsky about Forsyth County during the Q&A, he said that the case only decided that vesting discretion in a government official to decide how much to charge march organizers for the costs associated with their march was unconstitutional; the case did not reach the question whether charging speakers based on actual security costs would be valid.With respect, I disagree with this characterization of the case. Forsyth County was a facial challenge to a permitting scheme that granted discretion to a government official to assess a fee for a permit to hold a march or rally. The Nationalist Movement was charged $100. The fee was invalidated on the ground that the scheme granted the official unguided discretion. But the key reason why that discretion was problematic was the risk that it would be exercised so as to charge speakers more based on the increased security costs due to the unpopularity of their message. If a licensing scheme is unconstitutional because it poses the mere risk of charging speakers based on security associated with hostil[...]



Viewing Old Movies and TV Shows from a (Somewhat) More Enlightened Perspective

Tue, 21 Nov 2017 16:40:00 +0000

by Neil H. BuchananThe sudden wave of social acknowledgement of the ways in which men have long mistreated women is as unexpected as it is welcome.  We are in what seems to be a transformative moment in history, and we can only hope that it leads to a thoroughgoing change in men's behavior and everyone's expectations.By far the most ink has been spilled recently discussing U.S. Senate candidate Roy Moore and his harassment (and worse) of underage girls when he was in his thirties.  I have nothing to add to that discussion, but I will note that Donald Trump's (mis)handling of the Moore mess includes this gem:"[White House press secretary Sarah Huckabee] Sanders said Thursday that Trump considers the allegations against Moore 'extremely troubling' but does not plan to rescind his endorsement and thinks that Alabama voters should be the ones to pick their next senator."Now, if Trump truly believed that Alabama voters should pick their next senator and that no outsiders should try to change the outcome, he would never have endorsed Moore in the first place.  But Trump's version of remaining "neutral" about Moore is to endorse him and then not to rescind his endorsement even in light of extremely troubling allegations, so that Alabamians can think for themselves.  Brilliant!Of course, by Trump's degraded standards of reasoning, that is almost Aristotelian in its nuance.  And let us not forget that Sanders has also said that the difference between Moore and Senator Al Franken is that Moore denies the charges.  Trump is famous for believing people's denials, after all.  Just ask Hillary Clinton and Barack Obama.Speaking of Franken, as of this writing we now have two accusers who have put his political career in a tailspin.  In the few short days since the first accusation against Franken became public, there has been an outpouring of very smart commentary on both sides of the question of whether Franken should resign his Senate seat.  It is not an easy call either way, but for the record, my immediate reaction was that he had to go (and that was before the second accuser came forward).  Although this column addresses a different subject, I can say that I continue to believe that he should resign.But beyond the direct political questions, the first Franken accusation has caused me to think about what counts as funny.  More specifically, the interesting question is how our standards of humor will change because of this turbulent moment in history, and how we will look at popular entertainment from the past in light of our new and (one fervently hopes) permanently more enlightened attitudes about sexual harassment and abuse.As soon as I saw the now-infamous photograph of Franken mugging for the camera as he put his hands on the breasts of a sleeping woman, I thought of a scene from the movie "Dead Men Don't Wear Plaid," a 1982 comedy starring Steve Martin and Rachel Ward.  The movie was directed and co-written by comedy legend Carl Reiner, and it is an homage to film noir, interspersing clips from classics like "The Postman Always Rings Twice" and "Double Indemnity" with scenes that Reiner produced to look like they fit into those black-and-white treasures.Early in the movie, Ward's character darkens the office door of Martin's Philip Marlowe-like character.  When Martin opens the door, Ward faints and collapses in his arms.  He promptly carries her to a sofa and, with the look of a naughty adolescent boy, starts to squeeze Ward's breasts until she awakens.When Ward asks what [...]



Text and History Fed Soc Style

Mon, 20 Nov 2017 17:27:00 +0000

By Eric SegallProfessors Randy Barnett and Akhil Amar had a fascinating, informative and entertaining debate at the Federalist Society Convention on Saturday. The question was "Resolved: Lochner Still Crazy after all These Years." I recommend you watch the entire debate, but I want to focus on what Barnett said at the very end. In response to a question concerning how far the legal academy has come in accepting the idea that maybe Lochner wasn't all that bad, Barnett attributed the development to the Federalist Society's thirty-year commitment to pushing judges to adopt a textualist-originalist approach to constitutional interpretation. Barnett's explanation echoed the overriding theme of the conference, which was that finally textualist-originalist judges were being appointed to the bench. The White House counsel said at the convention, to everyone's delight, that "The Trump Administration's philosophy on judging can be summarized in two words: "Originalism and Textualism.'"There are a number of ironies in this Federalist Society call for textualist-originalist judging. First, Barnett using Lochner to support his textualism/originalism thesis is interesting given that there is barely a word about text or history in the entire majority opinion. Moreover, as my forthcoming book "Originalism as Faith" will argue, the founding fathers either believed in the "clear error" version of judicial review, or maybe just a strongly deferential system. There is no plausible argument they believed in an aggressive, Lochner-style form of judicial review. And of course, judicial review is nowhere mentioned in the Constitution. If Barnett and Fed Soc want to defend Lochner's version of judicial review, it will have to be through a living constitutionalism type argument not a textualist-originalist one.Second, focusing on text gets judges almost nowhere when resolving constitutional cases, just like it was irrelevant to the majority in Lochner. Most constitutional litigation arises under clauses that are hopelessly vague and general such as the First Amendment's speech and religion clauses, the Fourth, Fifth and Sixth Amendment's criminal procedure rules, which are mostly unclear, and the Fourteenth Amendment's equal protection and due process clauses. All judges are textualists in the sense that if the text is clear, the judge will follow it, but that rarely if ever happens in constitutional law.Maybe what the Federalist Society is devoted to is the idea that judges shouldn't make up rights and principles that aren't enumerated in the Constitution. But that can't be right for two reasons. First, there is considerable support these days among Federalist Society members for the idea that the Privileges or Immunities Clause (and maybe the Ninth Amendment) protect unenumerated rights. Barnett has worked hard to make both of those ideas mainstream among Federalist Society followers. The main focus of the Society seems to have switched from anti-Roe, anti-judicial activism to the thesis that the Justices aren't doing enough to protect the right kind of (i.e., economic) rights, enumerated or not.Second, although I have no proof, my strong guess is that most of the people clapping wildly for textualist judges at the convention agree with the equal state sovereignty principle the Court espoused in Shelby County, the anti-commandeering principle of Printz v. United States, the color-blind principle advocated so long by the conservatives on the Court in numerous affirmative action cases, and the sovereign immunity principle appli[...]



Disaggregating Free Speech on Campus

Fri, 17 Nov 2017 12:41:00 +0000

by Michael DorfOn Monday Nov 20, UC Berkeley Law School Dean Erwin Chemerinsky will be giving two talks at Cornell on the topic "Free Speech on Campus," which happens to be the title of his new book with Howard Gillman. I'll introduce Dean Chemerinsky at the law school event and, following his talk, moderate a discussion. I expect to have something to say by way of post-mortem on Tuesday. In this essay, I want to make a preliminary observation about Dean Chemerinsky's topic and then offer some illustrations.My basic claim is that some free speech issues might be resolved differently in a college or university (what I'll call "campus") setting from how they might be resolved in general (what I'll call non-campus settings), but that the difference the campus setting makes depends on the question. In some contexts, the fact that speech claims are made on campus should make them stronger relative to competing claims; in other contexts, the fact that speech claims are made on campus should make them relatively weaker; and in still other contexts, the campus setting should make no difference.That might not seem like much of an insight, but I think it is nonetheless worth highlighting, because there is a tendency in public debate about campus speech for conservatives to accuse liberal academics of hypocrisy--of wanting to deny conservatives freedom of speech (by campus speech codes, say) in the one setting where it should be sacrosanct (via academic freedom). There may indeed be hypocrisy afoot (by liberals, conservatives, and/or others), but the fact that some speech claims are weaker in virtue of occurring in the campus context is not necessarily evidence for that fact. The difference that the campus context makes is multivalent.The question I am posing is more or less this: Whatever one thinks is the ideal approach to a free speech question when it arises in a non-campus setting, how should that approach differ, if at all, when the question arises in a campus setting?By "ideal" I don't mean an ideal interpretation or construction of the First Amendment or any other legal provision, although I'll refer to First Amendment doctrine as a point of reference. I mean something like what any particular reasonable person would think is an appropriate approach, all things considered. Because I'm not asking a constitutional question, I'm also not going to distinguish between public and private colleges and universities. I'll note characteristics of the campus context that, relative to the non-campus setting, count for, respectively: (A) extra protection for speech; (B) less protection for speech; and (C) the same protection for speech(A) Extra Protection for Campus Speech(1) Colleges and universities are havens of academic freedom. In recent years, some people have questioned the need for tenure and its efficacy in promoting academic freedom. It probably won't surprise anyone to hear that I, as someone with tenure, think it's a defensible institution. As I wrote in 2014,there are special reasons why people who teach need protection against arbitrary firing or discipline. There are additional special reasons to afford such protections to people who produce scholarship. But even apart from these special reasons applicable to teachers and scholars, some degree of "academic" freedom would, in an ideal world, apply to everyone, including non-academics. Suppose that a veterinarian, locksmith, or florist uses his spare time to tweet disrespectful comments about the Middle East or any other subject. Is that[...]



What Would a Frustrated Republican Say On the Way Out?

Thu, 16 Nov 2017 16:44:00 +0000

by Neil H. BuchananA surprisingly large number of Republicans have announced their departures from Congress this year.  Including those who are retiring, resigning, and running for other offices, there are currently 25 members of the House who are either already gone or will not be back in January 2019.  Most are not well known.  More prominently, Senators Bob Corker and Jeff Flake are also quitting in disgust.This is more than a bit unusual, because it is usually the minority party that suffers big losses of experienced people.  Why stick around, especially in the majority-is-everything House, when you are in the minority and when there are no White House perks or photo ops to make your job exciting?But Republicans are leaving in droves.  I will leave it to others to ponder what this means about the majority party's leadership and Donald Trump.  My question today focuses on what the Republican leavers will say and do as they walk out the door.  Will they unload a political version of "take this job and shove it," revealing their true thoughts about the policies that they were expected to support?We always, of course, see some amount of post mortem venting by political types.  Politicians have huge egos and long memories, and it is not surprising that they engage in score-settling when they can.  It is almost required behavior.Former House speaker John Boehner, for example, recently made news by using vulgarities to describe already-resigned Jason Chaffetz and too-bad-he-won't-resign Jim Jordan (who runs the most extreme conservative caucus in the House).  On the Democratic side, former party chairwoman Donna Brazile is making waves as she promotes her book-length attempt to blame everything on Hillary Clinton.What is notable, yet somehow completely unsurprising, is that this type of personal unburdening almost always boils down to personal gripes rather than matters of substance.  "He was a camera hound and made my job more difficult!"  "She didn't respect me and made mistakes that I could have helped her avoid."  Interesting in their way, I suppose, but not all that enlightening for those who do not thrive on insider gossip and high school payback.I want to see something different.  It would be fascinating (to say nothing of satisfying) if even one Republican were to say something like this: "I can't believe some of the stuff that I've allowed myself to support all this time.  Now that I'm leaving, I no longer have to pretend to believe half the crap that I've had to say in order to remain in office."Being part of a political party, after all, necessarily means making internal compromises.  Unless and until a person decides to adjust his views to precisely mirror those of his chosen party (a possibility that I discuss below), no party could ever take all of the policy positions that the person would choose on his own.Trivially, this is why party leaders in the United States so frequently try to talk about their party being a "big tent."  In its non-cynical use, this is a way of saying that people will be heard but must understand that the party has supporters with a range of views and thus that some level of frustration is every member's fate.  Cynically, on the other hand, it is merely a way of saying, "Do what we say and don't complain."This is intensified immeasurably for those who wish to hold office.  There are some things that simply cannot be admitted out [...]



The Free Speech and Equal Protection Exclusionary Rule

Wed, 15 Nov 2017 05:01:00 +0000

by Michael DorfMy latest Verdict column asks whether the Justice Department is violating the First Amendment by conditioning its approval of AT&T's acquisition of Time Warner on divestiture of either DirecTV or Turner Broadcasting, the parent company of CNN. I conclude that there is probably enough prima facie evidence that the decision is in retaliation for CNN's "fake" (i.e., appropriately negative) coverage of Trump to justify discovery regarding subjective motivation should the issue end up in court.En route to that conclusion, I compare and contrast the legal approach that prevails in free speech and equal protection pretext cases, on one hand, with the legal approach that prevails in Fourth Amendment pretext cases. Here I want to explore a point that seems to be insufficiently appreciated: the existence and strength of what I'll call the "Free Speech and Equal Protection exclusionary rule."Before coming to the exclusionary rule, however, let me briefly recap the contrast I draw in the column. In 1995, in Whren v. US, the SCOTUS held that the Fourth Amendment does not preclude pretextual searches and seizures. DC police suspected the driver and occupants of an SUV of being drug dealers, but they did not have a sufficient basis for stopping the vehicle for a drug offense, so instead, they watched and waited until the driver failed to signal a right turn and drove over the speed limit. The police then stopped the vehicle and found drugs inside. The driver and occupants of the car moved to suppress the evidence as the fruit of an unlawful--because pretextual--stop, but the Court rejected the contention. Whether a search or seizure is lawful, Justice Scalia wrote for a unanimous Court, turns on the objective facts known to the officers, not their subjective motives.The Whren Court distinguished other kinds of constitutional violations, to which subjective intent is relevant. In particular, the Court noted that if the petitioners could show selective enforcement based on race, they would have a valid equal protection claim. My column notes that the same logic applies to selective enforcement based on viewpoint, where the Constitution also contains an anti-discrimination rules. Thus, I say, pretext matters in equal protection and free speech cases, but not in search and seizure cases.As I also note in the column, just this Monday the Supreme Court granted cert in a case that might be thought to cast doubt on the availability of pretext objections in free speech cases. Lozman v. City of Riviera Beach has the same case name as the 2013 case featuring the same parties. That earlier case addressed the timeless puzzle "Is a houseboat a house or a boat?" In Lozman II, the question is whether a plaintiff can successfully sue a municipality for retaliatory arrest where there was probable cause for the arrest. The Eleventh Circuit said no.One might think that if the SCOTUS were to affirm the Eleventh Circuit, that would mean that the First Amendment is like the Fourth Amendment as construed in Whren--i.e., that pretext would be irrelevant. However, while it is possible that the Court could write a sweeping opinion to that effect, this strikes me as unlikely.Lozman II is a sequel to Hartman v. Moore, a 2006 case in which the Court held that when a plaintiff sues an investigator for retaliatory prosecution, probable cause to prosecute defeats the claim. The Court said that the existence of probable cause tends to undermine the claim t[...]



What If We Were Only Trying to Improve the Tax Code?

Tue, 14 Nov 2017 16:36:00 +0000

by Neil H. BuchananImagine a world, not at all like our own, in which the Republican majorities in Congress had decided to update the tax code in a way that truly deserved to be called "reform."Rather than proceeding from the firm commitment that they must cut taxes on large corporations and the superrich (especially the "lazy rich"), Republicans instead could have approached the tax code realistically and productively, noting that it must necessarily be complicated -- because life is complicated, and people want the tax code to take into account life's realities -- but doing everything that they can to repeal or change tax provisions that simply do not make sense.Again, that is most definitely not what Republicans are actually doing.  They have proposed a melange of unrelated changes to the tax code that will hit various groups of taxpayers, but this is only happening because Republicans imposed restrictions on themselves that required them to offset some of the huge revenue losses that their dearly desired regressive tax cuts will create.Even so, there is an interesting -- if entirely coincidental -- possible overlap between what Republicans have proposed and what responsible legislators might have proposed.  It is thus useful to think about a few Republican proposals from the standpoint of whether they are defensible ideas on their own merits, ignoring the undeniable fact that these changes are up for debate only because Republicans are hellbent on delivering huge windfalls to their mega-patrons.In a recent column, I noted that only by redefining the word reform to mean "change in various uncoordinated and unprincipled ways" could we describe the Republicans' tax proposals as reforms.  One could try to argue that punishing blue states and rewarding red states is a "principle," I suppose, but that would again be mere wordplay that tries to put an absurd spin on shameless political opportunism.One of the results of this Republican desire to find sources of revenue while inflicting maximum pain on people who are not hard-right true believers is that they have targeted tax provisions that benefit upper-middle-class people (the denizens of comfortable suburbs and exurbs who are turning in increasing numbers against the Republicans).In turn, those people are understandably worried that they are the ones who will ultimately pay for the Republicans' attempt to (as Senator Lindsey Graham has described it) use this tax bill to prevent Donald Trump from being impeached.  (It is all very complicated, you see.)Speaking as one of the people whose taxes would rise under any imaginable final version of the Republicans' plans, let me be clear.  There are plenty of good reasons to raise taxes on plenty of people, very much including me.There are, most importantly, unmet and neglected needs that only the federal government is capable of addressing.  If someone told me that my taxes were going to go up, and the money would be used to rebuild Puerto Rico or to bring back the Children's Health Insurance Program or make college affordable to more young people, I would say, "Paying more is never fun, but that sounds like a good plan."What the Republicans are proposing is, of course, nothing like that.  They have found various ways to increase taxes above where they would otherwise be for many people, all for the benefit of the richest people and the largest corporations.  If you said t[...]



Should Media Companies Remove Old Content Featuring or Made by Sex Offenders and Other Wrongdoers?

Mon, 13 Nov 2017 12:00:00 +0000

by Michael DorfIn light of the revelations and accusations that Kevin Spacey sexually harassed and/or assaulted various men and boys over the years, Netflix has suspended production of the upcoming season of House of Cards, in which Spacey has hitherto starred. Reportedly, the show's writers are attempting to write Spacey's character, Francis Underwood, out of the show. In the meantime, Netflix subscribers can still watch the existing five seasons.That is more than can be said for fans of comedian Louis CK, who admitted late last week that he had pressured women to view him naked. Women have alleged that CK masturbated in front of them; CK's apology admits that he "showed them" his penis but does not specifically mention masturbating. In any event, the incompleteness of CK's apology does not seem to be at issue, because HBO acted before CK published it. Within a day of the initial revelations, HBO canceled upcoming projects with CK and also pulled CK's existing shows from its streaming services. Although I have not seen a similar announcement from the FX Network, which produced CK's popular series Louie, FX seems to have followed suit. On Sunday night, my search for "Louie" on the FX website produced no results.What should one make of the decision of Netflix to leave older Spacey content accessible versus the decision of HBO and, apparently, FX, to remove older CK content? Obviously, this is not a constitutional question, as the respective networks are private actors to which the First Amendment does not apply. It might be a contractual question, depending on the terms of the networks' contracts with Spacey, CK, and the very large number of other people and firms involved in the various shows. Many contracts have catch-all "morals clauses," but they vary. For example, until recently, Bill O'Reilly's contract with FoxNews forbade the latter from firing him over sexual harassment allegations unless they were proven in court. Networks confronting alleged and/or admitted sexual misconduct by actors, directors, producers, and others responsible for the content they provide will have to untangle their various contractual obligations.In the end, each network will make a business decision based on its assessment of the costs (boycotts, etc) and benefits (loyal fans, new viewers attracted by the controversy) of each case. Those are difficult to tally up in the abstract. Accordingly, network executives at Netflix, HBO, Amazon, and the many other companies that now deliver content to a world of media-hungry viewers might want to consider a normative question: What is the right course of action?We can begin to answer that question by setting aside a potential distraction. A studio or distributor might have objections to the substantive content of some material. Decisions not to distribute offensive content have free speech (though not necessarily constitutional) implications, as I explored with respect to neo-Nazis and their ilk here), but such decisions call for a different kind of analysis.The question now under consideration is whether to continue to make available content that is not in itself objectionable (under whatever standards a firm uses for determining whether content is objectionable), but features work by actors, directors, or others who, the distributors and public now realize, have engaged in objectionable conduct. Although the objectionable conduct[...]