Dorf on Law

by Michael Dorf Leaks from the Trump White House indicate either that President Trump has decided to withdraw the United States from the Paris climate agreement or that he is nearing but still has not made a final decision. Many informed observers think it doesn't really matter . Even if Trump does not formally withdraw (either from the Paris accord or the entire UN framework), his Coal First environmental policy will ensure that the United States does not meet its targets under the Paris agreement anyway, with some environmentalists arguing that so long as the U.S. is going to miss its targets, the rest of the world is better off with the U.S. out of the agreement, so that our example does not water down the meaning of the commitment for other countries. Debate over whether the world is better if we stay in or get out and the game-show-style interest that Trump (in typical Trumpian fashion) has generated regarding his BIG DECISION should not obscure two basic facts: (1) The T...

by Michael Dorf My latest Verdict column discusses the First Amendment implications of the Montana special election. By electing a man who had just body-slammed a reporter for asking a question, did Montana  voters threaten freedom of the press? I explain that while of course there are no direct First Amendment issues raised by the incident (because a candidate for office is not a government actor and the First Amendment only restricts the government), all of our constitutional rights ultimately depend on social acceptance, and the incident--in combination with others, especially those connected to President Trump--thus poses a long-term danger for a free press. Here I want to propose a relatively modest legal response to that danger: State and federal laws should be amended to provide for penalty enhancements when otherwise criminal conduct is directed at reporters on account of their attempts to ask questions or otherwise do their job.

by Neil H. Buchanan Will Donald Trump be impeached?  It is still too early to tell, of course, but given the pace at which damaging disclosures are coming forth, no one should assume that it will not happen. What we do know without question is that the Republicans in Congress would have impeached and voted to convict Barack Obama, Hillary Clinton, or any other Democrat for doing anything even close to what we now know -- from his own tweets and other statements -- that Donald Trump has done. But that merely tells us that Republicans are in a bind.  Only a bit of one, however, because such shameless inconsistency only matters to people who have shame, which almost all of these Republicans have repeatedly shown that they lack.  Even those who are perfectly willing to apply different standards to presidents on the basis of partisanship, however, might have their limits. So the question is: What might be enough to convince a House Republican to impeach, or a Republica...

by Michael Dorf On this Memorial Day, I remember and honor those who gave their lives in the service of our country. I'm taking the day off from blogging. If you're looking for something to read, I suggest this DoL "classic" from Memorial Day 2011 . Re-reading it, I was struck by both how little has changed and how much has changed. We are still trying to extricate ourselves from largely counterproductive wars in the Middle East without leaving behind a still-worse situation. But whereas the contradictions in the Obama policy were mostly a product of conflicting sensible goals, the contradictions in the Trump approach (which hardly rises to the level of "policy") are, in addition, the nearly random product of Trump's ignorance and massive but fragile ego.

by Neil H. Buchanan The release of the Trump Administration's proposed federal budget has been met with mockery and ridicule across the political spectrum.  All budgets are "dead on arrival," but Trump's budgets stands out for its dishonesty, incompetence, and inhumanity. Even though most Republicans have been running away from Trump's budget (although they continue to support him in the face of evidence of impeachable offenses), this budget falls into the category of what Michael Dorf once described as "Trump as GOP on truth serum," where Trump is merely saying out loud what Republicans have not yet dared to say. My initial reaction to Trump's budget, in fact, was that it fully explains why House Speaker Paul Ryan has continued to support a man whom Ryan so clearly despises.  Ryan has spent his career trying to look concerned while crafting reverse-Robin Hood policies.  Trump's budget proposal will allow Ryan to look comparatively humane...

by Michael Dorf The scene of the lavish reception that greeted President Trump in Saudi Arabia was arresting to say the least. The Saudi royal family (literally) rolled out the red carpet, treating Muslim-bashing Trump as a hero. While the speech Trump thereupon delivered was no doubt written for him before Air Force One touched down in Riyadh, anticipation of a royal welcome could well have been a factor in what went into it. Meanwhile, by kissing up to Trump, the Saudis appear to have scored a double victory on substantive matters: Trump has tilted US foreign policy decisively in favor of the Sunni side of the regional cold/hot war between Sunni and Shia forces; and Trump more or less endorsed the view of the Gulf states with respect to the Israel/Palestine conflict. This is not the first abrupt foreign policy about-face by Trump. A cordial meeting with Xi Jinping instantly turned China from a currency manipulating hostile power into a strategic partner. It appears that foreig...

by Sherry F. Colb In my column for this week , I write about the topic of jury nullification, occasioned by an episode of RadioLab  that begins with a woman who served on a jury discussing having been criminally penalized for telling her fellow jurors about their ability to acquit the defendant for any reason. I talk about some of the pros and cons of nullification and conclude that if one has a basic trust of government and its officials, one will tend to oppose jury nullification and favor leaving it up to prosecutors to exercise their discretion in a just and wise fashion.

by Neil H. Buchanan Everyone is still trying to figure out what to make of the last two weeks of nonstop news about Donald Trump's unraveling presidency.  His trip abroad is generating a bit of news (including his curtsy to a Saudi ruler), but until he inevitably becomes unhinged by the rigors of travel and diplomacy, the rest of the world will have some time to digest the multitude of shocking revelations that led to the appointment of a special counsel to investigate the Trump/Russia mess. The overarching question that has generated serious political commentary is whether and when any Republicans will turn against Trump.  Until that happens, he is in no danger of being forced from the White House.  Of course, even something short of Trump's removal from office is a win for sanity, both because nonstop drama will derail the Republicans' regressive policy agenda and because it will keep Trump's supporters on the defensive in the 2018 midterm elections. Still, it...

by Michael Dorf (cross-posted on Take Care ) As a college student in the early to mid-1980s, I knew Kris Kobach because we were on the debate team together. I'm a couple of years older than Kobach, but he started debating as a freshman, so I had two full seasons to get to know him. I recall him as smart and genial. He was conservative but in what at the time struck me as a middle American country-club Republican sort of way. I did not hear from Kobach again until the mid to late 1990s, when he was a junior faculty member at the University of Missouri-Kansas City. He contacted me to talk about an academic paper he was working on. It was very much a scholarly rather than polemical exercise. We had a pleasant substantive exchange, which confirmed my earlier impression of Kobach. Thus, I was very surprised when, a few years later, Kobach emerged on the national political scene as the evil genius behind many of the state-level efforts to crack down on undocumented immigrants. At fi...

By Eric Segall On at least three occasions over the last seven months Justice Samuel Alito has made public remarks about the appropriate role of religion in this country that, if made by a liberal Justice, would likely result in conservative outrage and calls for recusal the next time the Supreme Court hears a case regarding religious liberty (there is such a case on the docket this term). Despite these public comments by Alito, there has been a deafening silence by those who often complain when other Justices make such political statements.

by Michael Dorf Once again, it's that time of year when I post an exam. There are three questions. As always, creative answers are welcome in the comments, but I won't grade them. I apologize for the fact that despite my best efforts to concoct outlandish hypothetical examples based on real events, the actual real events are still more outlandish. -----------

by Neil H. Buchanan Donald Trump lies.  He lies all the time.  He lies effortlessly.  He lies shamelessly.  He lies garishly and promiscuously.  Before, during, and after the 2016 presidential campaign, Trump has lied repeatedly. Trump is unfazed that he has no facts to back up his lies, and he seems not to care about the fact-checks that repeatedly expose his statements to be lies .  He lies so much that newspapers and TV networks finally felt honor-bound to stop downplaying Trump's lies with niceties and euphemisms -- "not backed up by facts" and "not truthful" -- and simply started to call them lies. Trump's team has generally been equally brazen in their lies.  Sean Spicer and Kellyanne Conway repeat and amplify Trump's lies, and they too are apparently unconcerned that their lies are obvious even to a child.  Reince Priebus bothers to repeat Trump's lies , for example, the lie about Trump's "electoral landslide," not caring t...

by Michael Dorf In  Federalist 51 , James Madison wrote: In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. Practitioners and scholars of constitutional law understandably focus their attention on those "auxiliary precautions." When Madison wrote the foregoing, the auxiliary precautions he had in mind comprised the constitutional system of checks and balances, in which "[a]mbition [is] made to counter ambition." Almost immediately after the ratification of the original Constitution (and in fulfillment of a promise by its supporters to its skeptics), the Bill of Rights was added as another auxiliary precaution against leadership by those who prove ...

by Neil H. Buchanan Although the story about Donald Trump's firing of James Comey as FBI Director rightly dominated last week's political discussion (and continues to do so, with unsettling new twists in the story emerging at least once a day), the Republicans' farcical effort to repeal the Affordable Care Act also continues to generate news. In early May, Republicans in the House finally limped across the finish line with a new version of their noxious American Health Care Act, which some people call TrumpCare (although I prefer to call it TrumpRyanCare).  The political blowback has been appropriately fierce.  To my surprise, however, I have found myself -- in one very limited way -- sympathetic to some Republican congressmen who have subsequently been mocked unfairly.

by Michael Dorf A recent episode of This American Life  focuses on two precursors to the Trump era: the unlikely 2014 primary success of David Brat in unseating Eric Cantor; and the 1992 and 1996 presidential campaigns of Pat Buchanan. Although Brat's run was not initially fueled by opposition to illegal immigration, that became its primary focus when GOP primary voters reacted more positively to that aspect of his platform than to any other. Meanwhile, Buchanan was Trump before Trump (albeit without Trump's gaudy showmanship, profound ignorance, and linguistic incompetence). The episode is worth a listen overall, but here I want to focus on one claim it highlights. During the episode, Buchanan, right-wing radio talk show host Laura Ingraham, and others all express their opposition to a path to citizenship (or "amnesty" as they call it) in, among other ways, cold political terms. They oppose extending citizenship to undocumented immigrants because the new citizen...

By William Hausdorff It is now well known from one of the most painful of all US Presidential elections that getting the most votes is not enough to determine the outcome—it depends on the local rules (i.e., the electoral college) as to how those votes are counted.   As this was also readily apparent in the equally painful 2000 election, when Bush Jr stumbled into office against Gore, it’s easy to assume the local rules thing is yet another US idiosyncrasy.   It may therefore come as a surprise to realize that the local rules for interpreting vote counts made (almost) all the difference in several recent, also momentous, European elections.   In other words, each could easily have gone the other way but for the specific, seemingly mundane rules in place in each country.   It turns out that there are many ways, from an electoral point of view, to crack an egg.

By Eric Segall Mike has once again graciously allowed me to use this blog to write about something other than constitutional law or the Supreme Court (and who doesn't need a break from the news?). Today, I want to talk about friendship and people skills in the age of social media.

by Neil H. Buchanan When the news broke about the firing of James Comey as FBI Director, I began to think about Donald Trump's impeachment or resignation.  Although both possibilities continued to be unlikely, I certainly thought that such questions would still be relevant -- even pressing -- by the time I wrote this column only three days later. Indeed, it finally seemed possible to hold out real hope that Trump's unfortunate presidency might soon see its final days.  When the faux-centrist trio of John McCain, Lindsey Graham, and Susan Collins finally did something laudable and meaningful on Tuesday (voting with Senate Democrats to uphold one of President Obama's climate change regulations), one report referred to that surprising vote as evidence of "the Trump administration’s problems on Capitol Hill, where there are signs the president’s grip on his party is loosening." So much for that.  There has been barely a peep of protest about the Comey firing fr...

by Michael Dorf In response to the Tuesday Night Massacre, I wrote my latest  Verdict column early. It's called What Employment Discrimination Law Teaches About the Comey Firing . My answer: (1) Although employment discrimination law does not of its own force apply to the Comey firing, broadly speaking it addresses the same topic, namely, when is a termination wrongful? (2) The fact that the FBI Director serves at the pleasure of the president does not insulate the firing from scrutiny, in the same way that employees at will have Title VII protection against being fired for bad reasons. (3) Even if Comey could have or should have been fired because he mishandled the Clinton email investigation, that does not excuse Trump's firing him for the affirmatively bad reason of attempting to suppress the investigation into collusion with Russia to affect the election. That last point raises a further question that I do not address in the column: If Comey was doing a bad job but was...

By Sherry Colb In my column for this week , I discuss the phenomenon of "stealthing," whereby a man engaged in sexual intercourse stealthily removes the condom he is wearing, with neither the knowledge nor the consent of his partner. I suggest in the column that this practice does not rise to the level of sexual assault because there is consent to sex, though the consent is not "informed."  I want to suggest here, however, that exposing a partner to the risk of pregnancy and sexual transmitted infections  ("STIs") represents a harm that goes beyond the usual case of deceiving one's partner to induce him or her to have sex.

by Neil H. Buchanan [Note: This post was updated on 5/10/17 for clarity and to correct some editing errors.] It was apparently too much to hope that Hillary Clinton would, in defeat, be treated with the respect that she was denied during the campaign -- or, more accurately, during her entire career.  What is more depressing is that even some of her most prominent supposed admirers still enjoy piling on when Clinton is being attacked. When Clinton kept herself out of the public eye after the election, she was mocked for "wandering in the woods" and was the target of other smart-alecky criticisms from avowedly liberal comedians and commentators.  Now that she has broken her silence and made some public appearances, we are being reminded of the double standards and outright nastiness that has been aimed at Clinton for decades. Last week, Clinton gave an extended interview to the journalist Christiane Amanpour at the 9th Annual Women for Women International Conference....

by Michael Dorf On Friday, President Trump signed a bill funding the federal government through the fall. Following a potentially troubling practice that gained attention under President George W. Bush (and continued under President Obama), Trump accompanied his signature with a signing statement  that announced that his administration would "construe" various provisions in accordance with various constitutional limits. On its face, that is reassuring rather than troubling. A president is sworn to faithfully execute the law, and in the U.S., statutory provisions that contravene the Constitution are not law. Thus, few would object--indeed most everyone would laud--a president who declined to enforce or comply with a blatantly unconstitutional law. The difficulty arises when the president, in a signing statement and thereafter in practice, asserts a power to disregard a statutory provision based on a tendentious constitutional understanding. That's what Bush did with r...

by Michael Dorf Among the many apparent mysteries concerning the election of Donald Trump to the presidency is the matter of timing. That people experiencing economic hardship would turn to a racist demagogue is not entirely surprising. The surprise is that it happened in late 2016, when the U.S. economy had mostly recovered from the worst of the Great Recession, rather than in 2008 or 2012, when the economic picture was worse. The mystery is mostly solved when we take account of the unevenness of the economic recovery and the dislocations caused by long-running structural changes in the economy. Mostly but not entirely solved because on top of Trump's seemingly odd economic timing we have Trump's odd rhetorical timing. Trump campaigned against "political correctness," a phenomenon that--judged by the following n-gram and my own subjective impression having lived through the relevant periods--began to decline in significance after peaking in the mid-1990s, roughly...

by Neil H. Buchanan The election of 2016 was frightening for people and institutions across the world.  In the U.S., it was an especially troubling year for the press, as the nation's news providers found themselves under attack by a shameless demagogue who turned hatred of the mainstream media into an active campaign tactic. What was especially worrisome, as reporters and commentators alike noted throughout the primaries and general election, was how Trump had used the press's laziness and self-ambivalence to his own advantage.  He provided spectacle, and the press ate it up.  He lied (and lied and lied), and the norms of American journalism seemed to force major papers to give him more than the benefit of the doubt. Both before and after his non-majority win, Trump directly threatened the press with talk of "opening up the libel laws," all the while knowing that even the elite press would give him interviews on his own terms. Confronted with a new, hostile p...

By William Hausdorff and Eric Segall President Donald Trump (three words that in a sane world would be the dictionary example of an oxymoron) just completed his first 100 days in office. Social media writers have poured forth summaries, takes, and opinions about this surreal stretch of mismanagement and incompetence (with a new  Verdict essay by Mike Dorf focusing on legal incompetence). Rather than look backward, however, we felt it might be helpful to provide hints for how to survive (better) the next 100 days. We should note at the outset that this is no easy assignment.

by Neil H. Buchanan There is a rather large difference between the two following, very similar-sounding statements: "Trump is not turning out to be so bad, right?" "Trump has not been as bad as he might have been, I guess." The most important difference between the two is that the former expresses some measure of optimism -- guarded optimism measured against well warranted pessimism, to be sure, but still optimism -- while the latter expresses a sense of relief without imagining that the big picture has improved. Count me in the second group.  The first group is not merely misreading the situation, but they are affirmatively worsening it by encouraging everyone to ignore evidence and instead simply to hope for the best.  It is OK, they suggest, to let our guards down, because Trump is not the danger we thought he was.  As Trump would say: Wrong!

by Michael Dorf The non-FoxNews non-Breitbart assessments of the first hundred days of the Trump administration were pretty uniformly negative. Search news stories for "100 days of failure" and you'll get your pick, all with roughly the same headline: The Guardian , Vanity Fair , the  ACLU  and  CNN . Not that these reports won't be dismissed by Trump himself. Close your eyes and you can see him tweeting in response that this is all just the kind of fake news you'd expect from the failing fill-in-the-blank. Trump need not even dismiss all of the negative assessments, because within them he can find a silver lining. (Or perhaps make that a gold lining, as our president prefers that his precious metal match his hair.) The CNN piece--an opinion essay by Princeton history and public affairs professor Julian Zelizer--comes with a question mark in the title: "100 days of failure for Trump?" Having written some of my own essays for the failing CNN (as well a...