Dorf on Law

by Neil H. Buchanan The annual Independence Day holiday festivities provide an opportunity to reflect on the unique place that the United States holds in world affairs, for better and for worse.  How much worse has it become because of Donald Trump?  And does it matter? Back in 2008, as the Bush era was ending and we were attempting to assess the disturbing legacy of the Bush/Cheney Administration -- the falsified case for the Iraq invasion, the horrors at Abu Ghraib prison that had been perpetrated by U.S. Army and CIA personnel, the ongoing human rights disaster that was (and still is) the Guantanamo Bay prison, and on and on -- it had become obvious that the reputation of the United States as a beacon of hope had taken a huge hit in the eyes of the world. In December of that year, I wrote a short essay, " Our Reputation Matters ," expanding on an editorial in The New York Times that had argued for closing Guantanamo as a matter of both moral imperative and nationa...

By Eric Segall If you are angry or worked up about the Supreme Court’s decisions this year, please raise your hand. That’s what I thought. Whether one is liberal, conservative or somewhere in-between, there are not many folks terribly upset about the 2016-17 term. Sure, some may disagree with the Court’s anti-historical free exercise decision in Trinity Lutheran , while others might argue over whether the lower courts’ injunction of the travel ban should have been kept in place in full or lifted altogether. Others might have wanted the Court to grant cert in a big gun case while others would have preferred the Court not to grant cert in the wedding baker case . But overall, compared to the last few (meaning like ten) terms, this last week of June is much calmer than previous years.

by Michael Dorf In Pavan v. Smith , the SCOTUS issued a per curiam opinion reversing the Arkansas Supreme Court's decision  upholding an Arkansas statutory scheme under which the husbands of women who give birth are listed as fathers on the children's birth certificates but the wives of such women in same-sex marriages (SSM) are not. The reversal relied on the 2015 recognition of a constitutional right to SSM in Obergefell v. Hodges . Because only three justices (Gorsuch, Thomas, and Alito) were recorded as dissenting, speculation immediately ensued about whether there were six votes for the result. If so, that would mean that Chief Justice Roberts, who dissented in Obergefell , has accepted the ruling as settled law. However, as Joshua Matz explains on Take Care , we do not know whether the per curiam garnered five or six votes, because a justice can dissent from a summary action without publicly registering a dissent. I agree with Joshua that Pavan  does not te...

by Michael Dorf (cross-posted on Take Care ) Yesterday's SCOTUS ruling in Hernandez v. Mesa decided one question and punted on two. After explaining what the case decided and what it did not, I'll explain why one of the punts confirms my fear--expressed in a DoL  post last week that was cross-posted on Take Care --that federal civil rights actions against federal officers are practically a dead letter.

by Michael Dorf By late morning I will post some thoughts on the cross-border shooting case, Hernandez v. Mesa . For now, interested readers can get my take on the cert grant and accompanying order and opinion in the Travel Ban case, now known as Trump v. International Refugee Assistance Project , by reading my latest Verdict column .

By Eric Segall Of all the Court's zigzagging, implicit reversals, and outright reversals permeating constitutional law cases, perhaps the most incoherent doctrine of all is  justiciability.  Legal scholars across the political spectrum agree that the Court's standing, ripeness, and mootness doctrines have been manipulated by the Court over and over to reach whatever result the Justices prefer that day. These three doctrines derive from Article III's requirement that all federal cases involve a "case" or a "controversy." Before today, one thing that we thought was true was that the Justices would not decide advisory opinions or hear hypothetical disputes where both parties are in complete agreement on all the issues in a case. Sadly, even that rule is no longer true, Today the Supreme Court decided  T rinity Lutheran Church v. Comer , an important case raising high stakes about the separation of church and state.  The Missouri Constitution has prohibi...

by Zachary Clopton The President, without the consent of Congress, accepts an emolument from a foreign state. What next? The answer is judicial intervention, say recent lawsuits from private citizens , government bodies , and members of Congress . The merits of their allegations have been—and continue to be—thoroughly ventilated by others. This post addresses two issues related to whether these cases are appropriately handled by the federal courts at all, i.e., justiciability.

By Eric Segall The President of the United States owns a posh hotel in the shadow of the White House from which he derives foreign-government revenue. Along with income and benefits from many other domestic and international businesses, this revenue stream creates the very conflict of interest that the founding fathers wanted to prevent by writing into the Constitution that “no Person holding any Office of Profit or Trust … shall, without the Consent of the Congress, accept … any Emolument … from any King, Prince, or foreign State.” Members of both the House and the Senate have filed a lawsuit seeking to enforce this provision. These legislators allege that the President has violated their right, guaranteed in the text of the Constitution, to vote on and authorize the President’s acceptance of “emoluments.” They ask that the court require the President to obtain Congress’ consent before accepting benefits from foreign governments or divest himself of all interests in those b...

by Neil H. Buchanan Can anything be done to make congressional and state legislative races more competitive?  The Supreme Court has taken on a case from Wisconsin that could meaningfully limit partisan gerrymandering.  Depending on Justice Kennedy's vote, that case could change the way districts are drawn, which in turn could radically alter the results of American elections. I will surely have more to say about that case in future columns, especially the proposed formula for identifying impermissible partisanship that the plaintiffs would like the Supreme Court to endorse.  Before going there, however, it is first worth asking whether gerrymandering is as important as people like me think it is. After all, if Republicans' recent lock on the House of Representatives and state legislatures is not a result of gerrymandering (and voter suppression, which is obviously the key part of Republicans' strategy), an awful lot of effort on Democrats' part is going to be m...

by Michael Dorf ( cross-posted on Take Care ) The most important immediate impact of Monday's SCOTUS ruling in Matal v. Tam is that the Washington Redskins will be able to enjoy registered trademark protection, notwithstanding the offensiveness of their name. In invalidating the provision of federal trademark law that denied federal registration for any mark that would “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead,” neither Justice Alito's majority/plurality opinion nor Justice Kennedy's concurrence/concurrence in the judgment (joined by Justices Ginsburg, Sotomayor, and Kagan) relied on the fact that the respondent used the name "The Slants" ironically so as to " take it back ." Thus the holding also applies to offensive trademarks that are used unironically, like the Washington Redskins, Chief Wahoo of the Cleveland Indians , and Trump Tower . Meanwhile, a portion of Justice Alito's opinion that sp...

by Neil H. Buchanan Many people feel uncomfortable with the notion of driverless cars, and I certainly understand why.  How weird would it be to sit in a vehicle alone (not even with a humanoid robot in a driver's seat) and have that vehicle drive off at 35, 55, or even 70 miles an hour? Is that too scary for people to accept?  Is it scarier than the fact that people driving cars are killing 40,000 Americans per year?  Is is scary that vehicles can be used deliberately to kill? That, as I will discuss momentarily, is the new wrinkle to the story.  Will terrorists inadvertently move public opinion in favor of driverless cars?

By Sherry F. Colb In Horizons , a journal published by Cambridge University Press, I have a review of Charles Camosy's book, Beyond the Abortion Wars: A Way Forward For a New Generation . After the various reviews of his book, Professor Camosy provides responses to each one. Because I think his response to my review inaccurately represents my review, I wanted to take the opportunity here to reply to his response. Just so that readers have some idea of what this is all about, Camosy's book proposes that we can get beyond debates about abortion if we incorporate the majority's view of the procedure: prohibit most abortions but allow some, including those necessary to save a woman's life and those where the pregnancy has resulted from rape, the latter of which would be allowed if the abortion is a failure-to-aid termination (such as a medical abortion) rather than an abortion involving direct violence to the fetus. He also proposes greater government financial and oth...

by Michael Dorf Today's ruling in Ziglar v. Abbasi  makes it all but impossible for civil rights plaintiffs to sue federal officials for money damages. After explaining why the ruling is extremely troubling, I will offer a partial solution.

By Eric Segall Last week in the L.A. Times (with support from Judge Posner and Justice Willett) and in Judicature (writing with Erwin Chemerinsky), I discussed the Supreme Court’s continued refusal to allow any video coverage of its proceedings. My tone in both pieces was reasonably measured (at least by my standards), and I had to leave out a few arguments because of space requirements. For this piece, the gloves come off, and I can be a bit more comprehensive. I also want to respond to the concern that we should ask the Justices to move slowly, maybe by starting with live audio, before they approve cameras.  There is not a single good reason justifying the Court’s blackout of its already public oral arguments and decision announcements, while there are compelling reasons the Court should enter the 21 st  century. The benefits of allowing cameras include the following: 1) the generalized interest in more governmental transparency; 2) the democratic interest in allo...

by Neil H. Buchanan We cannot know how much additional damaging information about Donald Trump and his people will emerge, adding to the already overwhelming case for removing him from office.  And we certainly do not know whether that new information will be bad enough to send some Republicans into the impeach-convict-remove camp. It is notable that a former Republican congressman, Bob Inglis of South Carolina, who was a prime mover in the Clinton impeachment, recently wrote that the charges against Trump are more serious than the Republicans' case against Bill Clinton. Inglis also offered an explanation as to why the Republicans are not (yet) rebelling against Trump: They are too cowed by the right-wing echo chamber.  Or, as Inglis put it more pointedly: "The difference, now, is the presence of sycophantic media."  That certainly captures what is going on. In any case, we know that Trump's own statements -- whether or not one believes James Comey's comp...

by Michael Dorf (cross-posted on Take Care ) The last week saw important developments with respect to Donald Trump's ongoing confrontation with the Constitution's Foreign Emoluments Clause. First, the Department of Justice (DOJ) filed a motion to dismiss the lawsuit brought by Citizens for Responsibility and Ethics in Washington (CREW) and others against President Trump. The government argues in its supporting memorandum that the plaintiffs lack standing because they have not been injured and that even if they have been injured, they are not within the zone of interest protected by the Emoluments Clause. In prior essays, I have argued that under the existing precedents, CREW has standing and so do the additional plaintiffs alleging that Trump's violation of the Emoluments Clauses redirects business away from them or their employers and thus injures them. The government's arguments for dismissal do not persuade me otherwise. But even if the government's arg...

by Michael Dorf My Verdict column this week explores Monday's Supreme Court ruling in  Sessions v. Morales-Santana , in which the Court invalidated a federal statutory provision that confers citizenship on children born outside the U.S. to unwed U.S.-citizen mothers in some circumstances in which such citizenship is denied to children born outside the U.S. to unwed U.S.-citizen fathers. Among other things, my column explores the potential implications of the case for the Travel Ban litigation. Here I want to focus some attention on the Court's remedy and how Justices Thomas and Alito approached the case. As I note in my column, an equal protection violation can be remedied either by leveling up (everyone gets the benefit) or leveling down (no one does). The leading case is  Heckler v. Mathews . Justice Ginsburg's majority opinion in  Morales- Santana  parses what I call Congress's "fallback" intent to conclude that the right remedy (absent further congres...

by Neil H. Buchanan Donald Trump is wrong almost all of the time about almost everything.  He lies constantly, and even though he is constantly being caught in his transparent lies, he never admits error, pressing ever forward on his destructive path. Does he do this because he knows nothing about the world?  (That is, is he naive ?)  Alternatively, maybe it is because he is incapable of logical thinking.  (Is he stupid ?)  Or is it instead because he has horrible policy goals?  (Is he evil ?) All three of those explanations fit, and then some.  As Michael Dorf argued in a recent column , normal human beings can be "evil, stupid, or ignorant," but "Trump is not a normal human being. He is not even a normal but evil, stupid, or ignorant human being. Trump is Trump." In order to understand how Trump is different, we first need to understand what it means to be normal yet wrong in one of those three ways -- naive, stupid, or evil.  Because th...

by Michael Dorf Last week in this space I took issue with the hypothesis that President Trump's early-morning tweets about the Travel Ban were intended to sabotage the Justice Department's legal defense of the policy or otherwise intended to serve any rational purpose. I suggested that there is a much more straightforward and thus much more likely explanation of Trump's tweeting: he "is an ignorant racist with no impulse control." The tweets simply vent. Any good they might do him--e.g., by firing up his base or by distracting the media from more damaging and/or substantive stories--is coincidental. Today I want to address a related question: Does it even make sense to try to figure out what is happening inside Trump's head? I will frame the discussion with reference to a justly famous work in the philosophy of mind: Thomas Nagel's 1974 essay What Is It Like To Be A Bat?

By William Hausdorff The rejection of climate change science Many political observers linked President Trump’s decision to pull the US out of the Paris global warming agreement to his own psychology. The French newspaper Le Monde considered it a manifestation of his “ régression infantile .”   The Washington Post characterized the rationale Trump gave—the rest of the world is using the treaty to take advantage of the US—as a “ visceral expression ” of his own personal dog-eat-dog world view.   Such a psychological interpretation is attractive because there is little alternative: Trump seems unwilling and frankly, mentally incapable of decision-making based on understanding even slightly complex issues. Unfortunately, the focus on Trump’s deranged psychology effectively portrays him as “the decider-in-chief .”   Yet, like most other decisions he makes, this was not an outlier activity of our disturbed President making policy decisions in his bathrobe in front ...

by Neil H. Buchanan In the aftermath of former FBI Director James Comey's dramatic, sworn testimony before the Senate Intelligence Committee this week, it is clear that the Republicans are not yet ready to void their deal with the devil.  Republican senators on the committee went to embarrassing lengths to defend Trump, and the rest of the party seems perfectly content to let Trump try to declare victory and walk away. This raises a question that we can address from at least two different angles:  What did we really expect?  That is, what did we think would happen at the hearing?  More broadly, for those of us who are not at all surprised that Trump has proved himself unfit for office again and again, what have we been expecting for the last six months, or even two years?  When we expressed fears about Trump being president, is this even close to what we thought would be happening?

by Michael Dorf Prof. Buchanan will have the official DoL  Comey post-mortem in a few hours. Meanwhile, I'll just raise an issue that occurred to me when Comey was testifying yesterday. I thought: "You were the FBI Director. You had access to all sorts of gadgets. After your first uncomfortable meeting with Trump, why didn't you wear a wire in person and record your phone conversations with him?"

by Neil H. Buchanan [Note to Dorf on Law readers: Yes, we are aware that today is "Comey Day."  Before James Comey's star turn this morning, Professor Dorf posted a short piece in which he analyzed a few key elements of the story thus far.  I plan to write a full piece tomorrow morning (Friday the 9th) in which I'll analyze aspects of Comey's testimony and the response thereto.  Here, however, I offer a column that is not about Comey at all.  It is, however, devoted to the arguably important question of whether life on the planet will be permanently altered by conservative politicians' insistence on denying the evidence of human-induced climate change.] Earlier this week, The New York Times published an excellent example of journalistic political analysis, " How G.O.P. Leaders Came to View Climate Change as Fake Science ", by Coral Davenport and Eric Lipton, the former of whom writes frequently about climate issues, while the latter is a poli...

by Michael Dorf Perhaps thinking to himself "Sessions might resign, Kushner might be demoted and so no longer blocking me, and then I can become Attorney General," lame-duck NJ Governor Chris Christie yesterday  attempted to curry favor with President Trump by dismissing James Comey's written testimony about how Trump repeatedly sought "loyalty" from Comey as "normal New York City." As a longtime New Yorker, I can say that this is even less plausible an account of Trump's behavior than the "locker room talk" defense of Trump's Access Hollywood boasts of sexual assaults. No doubt there are some people in New York City who talk this way, but they are all mafia dons.

by Sherry F. Colb My column for this week discusses a Texas bill  currently under consideration that would, among other things, prohibit Dilation and Evacuation (or "D&E"), or what the bill calls "dismemberment abortion." D&E is the most common (and perhaps the safest) second-trimester abortion method, and it involves taking apart the fetus while it is still in the woman's uterus and then removing the parts, one by one, through the birth canal. Similar prohibitions have been struck down in other states, and because of the obvious burden that a prohibition on this method would impose (particularly given the illegality of D&X (dilation and extraction or intact dilation and evacuation) under the federal Partial-Birth Abortion Ban Act ("PBABA")), the Texas bill--if it passes--will likely meet the same fate. Yet Texas and other states continue to pass such laws. My column suggests that these laws function as speech rather than as true attempt...

by Michael Dorf [ cross-posted on Take Care  and Newsweek ] President Trump's latest tweetstorm regarding his It-Is-A-Travel-Ban-After-All was widely and correctly viewed by observers as potentially harmful to the effort by the Justice Department to defend the Ban by arguing that it's not a Ban. Indeed, the tweets were even more damaging to his case than generally acknowledged. Most of the discussion in the blogosphere has focused on Trump's use of the word "ban," but as I'll explain below, the real significance of the tweets is that they reaffirm that the Executive Order is a Muslim Ban. I also want to explore the hypothesis--first floated by Jack Goldsmith in February under the title "Does Trump Want to Lose the EO Battle in Court?" and just now revived by Joseph Fishkin under the mirror image title "Does Trump Want to Win the Travel Ban Cases?" --that Trump is deliberately sabotaging the already weak case for sustaining the trave...

By Eric Segall There has been internet speculation that Justice Anthony Kennedy might retire in June, giving President Trump another Supreme Court vacancy to fill. Some Court watchers even believed that Trump’s selection of Neil Gorsuch to replace Justice Scalia was partly motivated by the hope that the choice would convince Kennedy he could retire with the Court in good hands (because Gorsuch clerked for Kennedy). On Tuesday of last week, however, it was reported that Kennedy hired a law clerk for the 2018 Term, dampening the speculation just a bit. Nevertheless, Kennedy is eighty years old, and I too have been told by some folks who may be in a position to know that he is considering stepping down (no one associated with this Blog). Therefore, it might be a good time to review the career of our most senior (in terms of longevity), our most important (in terms of influence), and our most fiercely independent (in terms of jurisprudence), Justice.

by Neil H. Buchanan The 2016 presidential election was almost seven months ago.  Why are liberals still so willing to blame themselves -- and especially each other -- for Trump's narrow victory in the Electoral College? The narrative that will not die is that "real Americans" abandoned the disdainful, sneering Democrats.  Those coastal elites who say and think nasty things about non-latte-drinking regular folk got what was coming to them , we hear over and over again. And it is not conservatives who are saying those things.  It is liberals themselves who are engaged in this orgy of self-doubt and intramural finger-pointing.