Dorf on Law

by Michael Dorf During the debate over the ill-fated "American Health Care Act," Freedom Caucusers and other critics from the right who thought that the measure did not go far enough toward completely repealing the Affordable Care Act frequently used the same talking point. Health care, they asserted, is not a "right." Many of these statements were uttered without any concrete semantic intentions; the utterers were simply dog-whistling their anti-government base while misleading the broader public, much in the way that Republicans previously learned from the likes of Frank Luntz to call the estate tax the "death tax" and to decry the Affordable Care Act as a "government takeover" of health care. Indeed, as I shall explain, if anything, the new rhetoric is even more misleading than the Luntzian malphemisms.

by Neil H. Buchanan The world finally caught on to Paul Ryan's game last week.  The Speaker of the House might not survive his inability to find enough Republicans to vote for his deeply unpopular and poorly crafted American Health Care Act -- a gratuitously cruel bill that Donald Trump, for no apparent reason , had embraced so completely that Ryan's bill became Trump's bill ( TrumpRyanCare , as I called it) and Ryan's failure became Trump's failure. One of Trump's strongest supporters on Fox News (which is filled with people vying to be Trump's strongest supporter) immediately called for Ryan to go.  The editors of The New York Times paired their scathing criticism of Ryan with a brilliant caricature showing Ryan as a tiny head on top of an oversized suit.  I have been calling Ryan an empty suit for years, so that one was especially fun to see. I am not predicting that Ryan will actually be taken down by this latest display of his emptiness.  I hav...

by Sherry F. Colb In my column for this week , I discuss the case of Peña-Rodriguez v. Colorado , which held that an evidence rule prohibiting jurors from testifying about their deliberations in a hearing to invalidate a verdict (a "no impeachment rule") had to give way to the Sixth Amendment right to an impartial jury in a case in which the jurors would have testified that one of the other jurors endorsed racial stereotypes and indicated, among other things, his view that the criminal defendant was guilty of sexual misconduct because he was Mexican.  In both the majority and dissenting opinions, the Supreme Court exhibits respect for the no-impeachment rule (a version of which exists in every jurisdiction in the United States), a rule which is intended to protect jurors from post-verdict harassment and enable jurors to speak their minds during deliberations without worrying that their statements might later become public.

by Neil H. Buchanan Even in a world where Republicans have shamelessly abandoned their supposed principles in order to embrace Donald Trump, the one thing about which they all still agree is that they must cut taxes on the rich.  On this point, Trump happily concurs.  Indeed, Trump's regressive economic views easily put him into what now counts as the Republican mainstream . Now that they are looking for a place to start all the winning that Trump promised his non-majority of voters, the latest rumors are that congressional Republicans will take a run at the tax code.  Other commentators have noted that this is hardly an easy lift, especially because the details of a tax overhaul will quickly destroy whatever unity remains on the right. That is surely correct, but my question here is a different one.  Suppose that the Republicans in Congress -- both their leaders and their most extreme members -- actually manage to get their collective act together and agree on...

By Eric Segall There was a time when a handful of legal scholars advocated for an originalist methodology that, if applied honestly, would significantly constrain judicial discretion even in hard constitutional cases. Professors Raul Berger and Lina Graglia, among others, argued that 1) the original meaning of the Constitution does not change; 2) that judges are bound by that meaning; and, most crucially, 3) judges should not invalidate decisions by other political actors unless those decisions are clearly and obviously inconsistent with that original meaning. If the original meaning of the text and history in question were subject to reasonable disagreement, then judges had to defer to other governmental officials.

by Michael Dorf Last week, I joined the chorus of academics decrying the futility of most of the questioning of Judge Gorsuch and other recent SCOTUS nominees. In a column , I agreed with Joe Biden's characterization of confirmation hearings as a "kabuki dance," even as I suggested that the hearings have some incidental educational value for the public. Then, in a blog post , I argued that Judge Gorsuch had introduced a new way for nominees to evade senators' questions: By characterizing just about every question as seeking his "personal"--and thus ostensibly irrelevant--opinion. Judge Gorsuch also relied on the tried and true method of declining to answer questions about past cases on the ground that doing so would require him to pre-judge issues that could come or return to the Supreme Court, and thus compromise his impartiality. As numerous commentators have previously observed, this particular piece of conventional wisdom is highly dubious. If commen...

by Diane Klein Last Wednesday, as the Gorsuch confirmation hearings ground through another day, a frisson  passed through the left-leaning side of Facebook.  Screaming across the web were headlines like " Supreme Court unanimously strikes down Gorsuch ruling ,"" While Gorsuch was testifying, the Supreme Court unanimously said he was wrong, " and " Unanimous Supreme Court overturns a Gorsuch decision...in the middle of his confirmation hearing ."

by Neil H. Buchanan The personal relationship that I have with my automobile insurance company is a cornerstone of my happiness.  Also, my sense of empowerment when I interact with my cable company makes me feel pleased that no one is coming between us.   I view it as essential to my life that those deep connections never be disturbed. No, I have not lost my mind.  Instead, I am simply trying to force myself to think in the way that Republicans want me to think about the inherently unbalanced relationships that people with relatively little power have with the powerful.  Republicans ultimately rely on that deliberately naive view of "relationships" between individuals and powerful institutions to justify their anti-government crusades.

by Michael Dorf My latest Verdict column  went live yesterday morning, after a very full day of questioning of Judge Gorsuch by members of the Senate Judiciary Committee. The column makes a number of points about the way in which the Gorsuch confirmation hearing resembles other recent confirmation hearings--which I'll quickly summarize before turning to one way in which Gorsuch's answers strike  me as novel.

by Alan K. Chen In 2005, shortly before he was appointed to the federal bench, Supreme Court nominee Neil Gorsuch wrote a commentary for the National Review criticizing liberals’ reliance on litigation to accomplish social reform. This was not a surprising position for one of Federalist Society ’s rising stars to take. Conservatives have long frowned upon public interest lawsuits as a means of pursuing social change.

by Neil H. Buchanan Has Donald Trump figured out how to beat the press?  There is understandable concern that his Twitter addiction has superseded the normal channels of political communication, and that he has in general put himself outside the rules of the old game.  If so, we have an even more serious problem than we thought.

by David S. Cohen & Eric Segall When Donald Trump nominated Judge Neil Gorsuch to the Supreme Court, he praised him as someone who will interpret the Constitution “as written.” Commentators from both sides of the aisle have described him as an “originalist” who will, in Gorsuch’s own words , rely on “text, structure, and history” to interpret the Constitution rather than his “own moral convictions.”

by Diane Klein You don't have to know much about basketball to have heard of the Los Angeles Lakers, or to remember "Showtime," when the team won five NBA titles in the 1980s and Magic Johnson became a star. And you don't have to know much about estate planning to know why team owner Jerry Buss's succession plan was unlikely to succeed. All estate-planners know the grim statistics on family business succession.  Only around 30% of family businesses survive the death of their founder; just 16% make it to the third generation; and by the fourth generation (the founder’s great-grandchildren), just 3% are still in business and under family control.  This is actually a problem worldwide; family businesses in countries as different as Norway and Nigeria experience something similar.

by Michael Dorf Although the lawsuits challenging President Trump's first and second Muslim bans have offered a variety of legal claims, the one that has gotten the most leverage thus far appears to be the Establishment Clause challenge. Federal district courts in Hawai'i and Maryland both relied on the Establishment Clause as the basis for their invalidation of Ban 2.0 in the last few days. So did the federal district court in Virginia in enjoining Ban 1.0 in February. Why the Establishment Clause rather than the other claims?

by Neil H. Buchanan Recently, The New York Times published a guest op-ed written by Ohio Governor John Kasich.  Kasich, a Republican, insists that he wants everyone to be moderate and bipartisan, especially regarding health care. Some readers, especially those who have not yet hit their fortieth birthdays, might only know Kasich as the failed presidential candidate who managed to be among the last three men standing in last year's Republican primaries.  Other readers might simply have forgotten most of the key details of Kasich's long political career. With that in mind, I am happy to provide here a translation of some of the key selections from Kasich's op-ed.  Think of it as Kasich under the influence of truth serum. [Text] John Kasich: End the Partisan Warfare on Health Care By John Kasich, March 10, 2017 [Translation] Hi, I'm John Kasich.  I was a member of Congress from Ohio for eighteen years, during which time my party made a lot of n...

by Michael Dorf Today marks the launch of the Take Care blog , a new venture that will produce and collect critical commentary focusing on the Trump administration. The name "Take Care" comes from the Constitution's placement of an obligation on the president to "take Care that the Laws be faithfully executed." The commentary on Take Care will evaluate how well or poorly President Trump is complying with that obligation. I don't usually use this space simply to promote other work, but I'm making an exception for two reasons: First, I am one of the contributors to Take Care , although my contributions will mostly consist of cross-posting material that appears here on DoL , on Verdict , and on Newsweek . But since DoL readers already have easy access to my musings, the second and better reason I'm making this promotional announcement is the importance of the project. Take Care will feature commentary by an extremely strong pool of law professors ...

by Neil H. Buchanan Although Donald Trump's presidency is beginning to show recurring patterns -- which is not to say that he is becoming normal, but merely that some of the abnormality is now feeling drearily familiar -- we still know surprisingly little about what he really wants from being president. Many of us have assumed all along that this is the ultimate ego trip for the world's most insecure narcissist.  There is still plenty of evidence to support that theory, of course, but lately I have begun to wonder if Trump is starting to show that he has an agenda that he truly cares about. Or perhaps he is even more incompetent than he seemed to be all along.  He is supporting a regressive agenda, to be sure, but the surprise is that he is spending political capital on things that have so little upside for him politically or personally.  For a man who is all about being seen as a winner, he is picking some very foolish fights. The most obvious current example is ...

by Sherry F. Colb In my column for this week , I discuss the case of Buck v. Davis , in which the Supreme Court, after cutting through a procedural morass, ruled that a capital defendant's attorney had been constitutionally ineffective under the Sixth Amendment when he introduced an expert witness who said that the defendant, though unlikely to be dangerous in the future, did have one characteristic (his race) that statistically correlated positively with future violence, a correlation that could have led the jury to sentence the defendant to death (as the jury was permitted to do only if it found that he was likely to be violent in the future). In my column, I discuss the importance of race to this case, observing that ordinarily, if an expert witness has something helpful to say (i.e., that the client is not dangerous) and something harmful to say (i.e., that the client has a characteristic that correlates positively with dangerousness), it is acceptable practice for the atto...

by Michael Dorf If you answered the question that titles this post "it's immoral," you're right, but that's not the answer I am looking for. I want to know why the lawsuit will fail as a legal matter. After explaining what the case is about, I'll provide the answer. On Monday, attorneys for the Thomas More Law Center filed a lawsuit on behalf of the Tennessee General Assembly and various Tennessee state legislators against various federal government officials, alleging that the federal refugee resettlement program (which is currently on hold) is unconstitutional. The suit purports to represent the state of Tennessee, but there is at least initially a question of standing. The complaint cites a state resolution directing the state Attorney General to file the suit and purporting to give itself the power to hire outside counsel to do so in the event that he does not. The complaint also cites the AG's letter declining the invitation but delegating t...

by  Justin F. Marceau & Alan K. Chen Last week, Arkansas Governor Asa Hutchinson announced an unprecedented plan to execute eight death row prisoners by lethal injection in a ten day period in April.  As lawyers for the estate of Clayton Lockett, the Oklahoma inmate who in 2014 suffered perhaps the worst, botched execution in recent history, we are acutely aware of the many problems with lethal injection.  Indeed, by now detailed media reports have informed the entire nation about the alarmingly common incidence of lethal injections gone wrong.  We strongly urge Governor Hutchinson to reconsider his macabre execution plan. No execution can be completely free of suffering, but lethal injection appears to be the worst method yet invented.  The Constitution prohibits the states from carrying out such “cruel and unusual” punishments.   Whatever one’s position on the death penalty, it should be beyond debate that the execution methods society chooses sh...

by Michael Dorf The current House bill to repeal and replace the Affordable Care Act (ACA), which has the support of the White House and can thus fairly be called "Trumpcare," would, as widely acknowledged by the reality-based community, make health care less affordable for millions of the working poor and others who currently receive subsidies to purchase health insurance on the ACA-authorized exchanges. By greatly reducing such subsidies and scaling back Medicaid, Trumpcare would thus allow the repeal of the surcharge that the ACA placed on people with high incomes to pay for expanded coverage under the ACA: a "0.9 percent payroll tax on earnings and a 3.8 percent tax on net investment income (NII) for individuals with incomes exceeding $200,000 and couples with incomes exceeding $250,000." But Trumpcare would not merely make health care less affordable for those with low incomes in order to benefit those with high incomes. It would also result in a de facto...

By Eric Segall On March 20, the Senate will begin the confirmation hearings for Judge Neil Gorsuch. Based on his meetings with a few Senate Democrats, it appears he will be reluctant, like most nominees, to answer any question relating to his specific views on already decided cases or the existing state of the law. This tradition is nonsense and needs to be changed. Although nominees to the Court should not make any pledges or promises as to how they will decide future cases, there is absolutely nothing wrong with them disclosing their views on the pressing issues of the day or on old cases. Senator Charles Schumer said it best at Chief Justice Roberts’ confirmation hearing: “It seems strange, I think, to the American people that you can't talk about decided cases, past cases, not future cases, when you have been nominated to the most important job in the Federal judiciary…. You could do it when you worked in the Justice Department. You could do it when you worked in priva...

By Diane Klein Monday's announcement that the Supreme Court would not hear G.G. v. Gloucester County (the "Gavin Grimm" case) on March 28, 2017 as scheduled, sent a wave of disappointment through much of the left-leaning legal community.  Gavin Grimm, the now-17 year old plaintiff who had seemed well on his way to becoming a bona fide celebrity -- he received a "shout out" from Laverne Cox at the Grammys! -- now may end up a footnote in trans history.  But perhaps the news is not all bad. The disappointment is understandable.  The Gavin Grimm case, concerning the right of a trans student to use the bathroom he preferred (the boys' bathroom at his high school), would have been the first trans rights case before the high court.  It would have forced the Supreme Court to reckon with the reality of trans existence. It was an opportunity for some of the most skillful trans advocates and their allies to explain to all of the United States why transgend...