Dorf on Law

By Mike Dorf As recently as 2008, no Democratic Presidential candidate other than Dennis Kucinich publicly endorsed same-sex marriage.  I assumed then and continue to think that this was simple politics: Barack Obama, Hillary Clinton, John Edwards (remember him?!), Joe Biden, Chris Dodd, the Professor, and Maryann all probably would have supported same-sex marriage if they were not running for President but figured that it could be a deal-breaker with swing voters in the general election.   President Obama is a particularly poignant case.  As reported in Politico over two years ago, back in 1996, when Obama was merely a candidate for the Illinois State Senate, he favored "legalizing same-sex marriages."  When he became a national candidate, he backslid to favoring civil unions but said that he did not favor marriage--although he frequently fudged by referring to his position as his "personal" view. More recently--and especially after the repeal of Don't-As...

By Mike Dorf  The Justice Dept's decision last week to stop defending Section 3 of the Defense of Marriage Act (DOMA) predictably drew praise from gay rights groups and criticism from conservatives.  Many news stories--like this one in the Sunday NY Times --have raised the question of how much leeway the Executive Branch has to decide that a law is constitutionally indefensible even when those with different ideological views nevertheless stand ready to defend it and there is a fair chance that the courts could uphold it.  The Times story, for instance, notes that as a lawyer in the Justice Department in 1990, (now-Chief Justice) John Roberts told the Supreme Court that the government would not defend a FCC affirmative action program in broadcast licensing.  The Court upheld the policy in the Metro Broadcasting  case, although that decision was effectively overruled five years later, following changes in personnel.) One might think that the position ta...

-- Posted by Neil H. Buchanan As I clicked the "Publish Post" button yesterday, committing my latest renting-is-better-than-owning post to the eternal blogosphere, I felt a deep sense of unease. At the time, I thought that the unease was caused by my suspicion that I had wimped out. After years of boldly saying that individual home ownership is a bad idea and should be discouraged, I had confronted the transitional issues and flinched. How to change things for the better, I asked? Slowly change people's attitudes, perhaps over the course of decades, I mumbled. Wimpy, wimpy, wimpy. My discomfort intensified as the day wore on. It soon became clear, however, that the timidity of my position was the least of it. In this post, therefore, I will describe two fundamental errors that infected yesterday's post. Both of them end up further supporting my policy preference (and one might even reduce the wimp factor), but the errors are important for reasons that go ...

-- Posted by Neil H. Buchanan Last Friday, I revisited the owning-versus-renting question in housing. With the Obama Administration taking a surprising stance that home ownership might not be the be-all and end-all of housing policy -- that it might actually be better for some people to rent -- it is natural to ask who might be included among those who should not rent. My answer (based in large part on the idea that people's financial well-being should not be tied up in a single asset that can precipitously lose value): There is a rebuttable presumption that no individual should own his or her own home. As a first step (one that is much more aggressive than anything the Administration is proposing), I suggested that public policy should at least not artificially encourage people to own homes. Even changing the current pro-ownership policy regime would only be the first step in this process, of course, because of the widely and deeply held belief that owning one's own home i...

By Mike Dorf Yesterday the Supreme Court heard oral argument in Bond v. United States , in which the petitioner was charged with violating a federal statute forbidding the possession or use of chemical weapons. The statute was enacted to implement a multilateral treaty--the  Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and their Destruction .  Yet Bond was charged with a garden-variety attempted poisoning: She left toxic chemicals on surfaces used by her former friend, who had been impregnated by Bond's husband.  On the merits, Bond argues that insofar as it reaches the sort of local conduct ordinarily regulated by state law, the statute goes beyond the bounds of the treaty power, and is thus invalid. The Third Circuit Court of Appeals did not permit Bond to challenge the statute's constitutionality because she was making a 10th Amendment argument.  The 10th Amendment protects states, not individuals, t...

By Mike Dorf   (substantially amended in response to a comment) The diplomatic impasse between the U.S. and Pakistan boiled over with the breaking of  the story  that Raymond Davis, the American being held by Pakistani authorities on murder charges, was in the employ of the CIA.  Davis has been classified by the U.S. as "administrative and technical staff" but he is part of a task force that monitors (and takes or facilitates covert action against) militant groups in Pakistan.  Several weeks ago, Davis shot and killed two Pakistanis who, he says, were attempting to rob him.  Accounts of the exact circumstances differ, but there is agreement that after the shooting, another U.S.-based vehicle killed a Pakistani pedestrian while its driver was attempting to come to Davis's aid, i.e., presumably trying to whisk Davis away before the authorities arrived.  The rescue effort failed and Davis was arrested.  The U.S. has strenuously insisted that Davis ...

By Mike Dorf The walkout by Wisconsin Democratic Senators raises the question of whether it ever makes sense for a legislative body to set a rule that requires more than a simple majority to do business.  According to this useful CNN article on the history of walkouts to deprive the majority party of a quorum, Wisconsin is only one of a handful of states in which a simple majority does not suffice to do business.  The Wisconsin quorum rule requires the presence of 3/5 of the members. Why set the quorum requirement at a super-majority?  In some legislative bodies and in some contexts, the answer might be because it has no impact.  Thus, in a body like the U.S. Senate, which now effectively requires a vote of 3/5 of the members to end debate (i.e., to break a modern filibuster), a minority party with more than 2/5 of the body's members can simply vote against cloture if it wishes to deny the majority an opportunity to enact legislation.  That's a less painful...

-- Posted by Neil H. Buchanan Early in the financial crisis, I wrote a series of FindLaw columns and Dorf on Law posts discussing and decrying the strong preference in the United States for people to own their own homes. (The most recent DoL post is here . That post includes links to my earlier writings on the subject.) The short version of my argument is that home ownership concentrates families' financial risk in entirely inappropriate (and often disastrous) ways, and that all of the supposed advantages of owning can be achieved in a world of renting. Even as I argued that Americans' universal preference for home ownership was based on fundamental misunderstandings of the nature of owning versus renting, I acknowledged in nearly everything I wrote on the subject that changing people's attitudes about such a deeply-held ideal would be a nearly impossible task, best left to those (like tenured professors) whose job security should not be threatened by making unpopular pr...

-- Posted by Neil H. Buchanan The dominant political story this week has been the sparring over the federal budget. The new Republican majority in the House of Representatives has been busily trying to see how much it can cut from this year's budget, decrying President Obama's less draconian cuts as irresponsible. The Obama team, meanwhile, continues to prove that it takes a back seat to no one in the art of triangulation, " pivoting " to prove that it finally gets it by proposing "tough" and "bold" -- read, harmful to the poor and middle-class -- cuts of its own. Within hours of announcing his budget plan, in fact, Obama was busily announcing that he really had not done enough cutting. Without doubt, Obama's approach to budgeting is the better of the two currently on offer in the United States, but no praise has ever been so faint. The continuing narrative on budget questions is that there is no arguing with mathematics. The long-term bu...

By Mike Dorf Under a proposed new rule for the NY State courts, an elected judge would be ineligible to sit on cases in which a participating party or attorney has contributed $2500 or more to his or her election campaign in the prior two years.  The rule would also forbid participating in cases in which parties, attorneys, and firms have collectively contributed $3500 or more.  The comment period on the rule runs until the end of April.  I'll get the ball rolling here. Although I think this proposed reform is laudable, the $2500 threshold for individuals strikes me as arguably too high.  Granted, it's way way way below the threshold for triggering due process concerns.  In the  Caperton case , Massey Energy's Don Blankenship had donated $3 million to the campaign of the judge who failed to recuse himself.  That extraordinarily large contribution, Justice Kennedy said for the Court, made Caperton the rare case in which a campaign contribution crea...

By Mike Dorf Back in January, Justice Scalia took some criticism for his willingness to speak at an event on the Constitution organized by Minnesota Congresswoman Michele Bachmann.   Jonathan Turley's piece in the Washington Post is an example of such criticism, just as Noah Feldman's recent NY Times Op-Ed  is something of a defense.  Turley says that when Scalia speaks to a largely partisan audience he undermines the perception (and perhaps the reality) of an impartial Court.  (Turley calls out other justices as well.)  Feldman says that justices have always been political, and so one shouldn't be surprised or worried.  Here I want to suggest something a bit different from either of those views. Much of the controversy over Justice Scalia's appearance before the Bachmann group was defused when it became known that Democrats were invited to attend and some did.  Although the self-selecting group skewed to the political right, even a small bit of D...

By Mike Dorf The effort now underway in the House to eliminate federal funding for the Corporation for Public Broadcasting (CPB) raises a number of very different sorts of issues that warrant untangling.  After doing so, I'll focus on the question I find most interesting because it has constitutional overtones. First, the immediate impetus for seeking these cuts now is the bipartisan agreement that the federal budget overall needs to be cut, or at least reined in.  I think that consensus is wrongheaded in two ways: (1) for reasons that Neil Buchanan has repeatedly articulated on this blog and that Paul Krugman and even Ben Bernanke (testifying last week in Congress) have also outlined, the recovery is still sufficiently fragile that a substantial reduction in federal spending is likely to do more harm than good, even if one is worried about long-term deficits and debt; and (2) Congress isn't really serious about the stated goals of deficit and debt reduction, because if it...

-- Posted by Neil H. Buchanan In my post on Monday , I extended my discussion of technological breakthroughs and their effects on society. My argument thus far boils down to these three points: (1) many of the great technological breakthroughs of the industrial era (airplanes and cars in particular) seem to have been fully exploited, with no apparent prospects of further game-changing advances, (2) whether or not (1) is true, the current era of information technologies seems not to be changing society in nearly as profound ways as the earlier technologies did, and (3) whether or not (1) or (2) is true, the current wave of technological breakthroughs is coincident with income stratification, whereas the early- to mid-20th Century's waves of technological change coincided with significantly egalitarian trends in income distribution. I thus suggested that deliberate policies to promote greater equality, especially reinvigorating labor unions, would improve matters. My most recent p...

By Mike Dorf Yesterday brought news that 16 freshmen members of Congress had declined federal health insurance.  I find their principled stand admirable, even though I disagree with the principle that they are standing up for.  The issue was nicely encapsulated in an NPR interview of one of the 16, Congressman Rich Nugent of Florida.  Robert Siegel asked Nugent whether the high price he had to pay in the individual insurance market wasn't simply a product of the fact that individuals lack the bargaining power of large collectives, such as the federal government.  Nugent held his ground, arguing that most of the cost difference between the Congressional policy and the private policy he could buy on the open market was the result of a taxpayer subsidy for the Congressional policy.  The actual cost savings that result from large pools, Nugent said, was relatively small. Nugent is surely right about a big chunk of this.  The main driver for health insur...