Dorf on Law

by Michael C. Dorf [N.B. The following essay also appears on Take Care , where it is part of a symposium on defending the First Amendment against President Trump.] In their respective contributions to this symposium, other scholars have wrestled with the question of how to distinguish between, on one hand, threats and actions taken by President Trump that implicate the First Amendment rights of private actors such as journalists and athletes, and, on the other hand, speech by Trump that does not have such implications, either because it falls within the “government speech” doctrine or because it emanates from Trump in a personal capacity. Although there are numerous borderline cases, the core cases—those that pose the clearest threat to free speech and freedom of the press—involve abuse of official power. To use an example posed in the opening essay by Anne Tindall and Ben Berwick, an IRS audit of Amazon or Jeff Bezos that is undertaken in retaliation for unfavorable coverage of

by Neil H. Buchanan "Trump Proposes the Most Sweeping Tax Overhaul in Decades," screams The New York Times .  Except he didn't.  Once again, Donald Trump has proved his lack of seriousness by promising a big tax plan and then delivering nothing more than a few talking points. This has been Trump's pattern all along on taxes, from his campaign's multiple non-plans that did little more than express a desire to feed the rich to his advisors' release of a not-completely-filled page of bullet points this past spring.  Now, they have released a few more pages to distract the gullible political reporters who barely understand anything about taxes.  And it seems to be working. As I pointed out in a recent column , there is a strangely non-adversarial relationship between the mainstream press and the Trump/Republican tax cutters.  Even though The Times and The Washington Post have reporters breaking story after story about hugely important matters like the Rus

by Sherry F. Colb Years ago, I wrote an article entitled "'Whodunit' Versus 'What Was Done': When To Admit Character Evidence in Criminal Cases,"   published in the North Carolina Law Review.  In it, I discussed two types of cases that present themselves in criminal court. One is the "whodunit" case, in which everyone agrees that a crime was committed, but the prosecution and defense disagree about who committed that crime. The prosecution says that the defendant is the perpetrator and the defendant says that someone else, named or unnamed, is the real perpetrator. The other kind of case is the "what was done" case, in which the prosecution and defense agree about who the relevant players are (unlike in the whodunit case) but disagree over what happened. Here the prosecutor claims that the defendant did something criminal and the defense claims that it was the alleged victim (or perhaps no one at all) who did something criminal. In my art

by Neil H. Buchanan Who could have predicted that an unhinged attack on professional athletes would be Donald Trump's final unmasking as a full-on racist?  After everything that he has done and said -- not merely since he announced his candidacy in 2015 but throughout his life -- Trump finally found a way to remove the last shreds of doubt about his bigotry. This is a good occasion to revisit a point that I made during last year's election campaign, which is that Trump's supposed devotion to America and our values becomes inoperative when he has a chance to be a white supremacist.  When he has a choice, Trump goes with the racist approach, not the American one.

By Eric Segall Everyone in the United States may worship their own God, multiple Gods, or no God at all.  We have the right to believe anything we want without fear of government reprisal.  We also generally may refuse to communicate government messages with which we disagree (warnings on dangerous products are an exception to that rule). We are also, in the majestic  words of the great Chief Justice John Marshall, “a government of laws not men.” This term the Supreme Court is hearing an important case implicating these fundamental principles.

by Michael Dorf ( cross-posted on Take Care ) In the Masterpiece Cakeshop case currently pending before the SCOTUS, the United States has filed an amicus brief  in support of the cakeshop, arguing that "an individual’s right to speak or remain silent according to the dictates of his or her conscience" is so powerful that it should prevail over the government's interest in enforcing its public accommodations law. At a recent rally in Huntsville, Alabama, President Trump did his best to undermine the federal government's opposition to compelled speech by expressing the view that a professional athlete who quietly protests police brutality by taking a knee during the playing of the national anthem rather than participating in the patriotic display is a "son of a bitch" who should be fired for his temerity. He doubled down on this view via Twitter. Can Trump's Justice Department's position on Masterpiece Cakeshop be reconciled with his own views a

by Michael Dorf Yesterday I ran a piece on Take Care arguing that the funding formula of Graham-Cassidy violates the requirement in the SCOTUS Spending Clause cases that any conditions placed on states' receipt of federal funds must be "unambiguous." I meant to cross-post it here but then Sen. McCain announced he would vote against the bill, and so I concluded that there was no point. But it looks like Graham-Cassidy is not fully dead yet and might even come back to life in the next few days. Accordingly, I am hereby promoting my argument in the hope that, at the margin, it might affect the debate over the bill--which is plenty bad quite apart from my contention that it is unconstitutional.

By Neil H. Buchanan Whether or not Senate Republicans finally succeed in taking health care away from tens of millions of Americans, their next big target is the tax code.  And although the mainstream press's coverage of the new health care repeal bill has been appropriately (given the facts ) harsh , journalists on the tax beat continue to give Republicans far too many passes. As I pointed out in a column last month, business reporters in particular seem all too willing to assume that Republicans' favorite talking points about taxes are all true, and that we are only arguing over the details.  I noted, for example, that one reporter for The Washington Post -- a newspaper that is rarely accused of being in the bag for Republicans -- was perfectly happy simply to assume a direct causal relationship between the size of any tax cut and the rate of economic growth, when evidence of such a relationship is weak at best. Unfortunately, the careless reporting continues, not jus

by Michael Dorf As the latest effort by Republicans to repeal and replace the Affordable Care Act races against the calendar for a showdown vote, one of its sponsors, Lyndsey Graham, has  declared that America faces a choice between "socialism or federalism." The characterization is preposterous, of course. If the ACA represents socialism because it includes subsidies to individuals to buy health insurance on the exchanges and increases federal funding to Medicaid--a program administered by states --then surely Medicare--a federally funded and administered program is even more clearly an instance of socialism; and yet, Graham does not oppose Medicare. Nonetheless, there is a non-trivial chance that Graham-Cassidy will become law, thanks in part to the possibility of support from John McCain, who of late has been sounding less maverick-y than he did over the summer. Given some cover by Arizona Governor Doug Ducey's announcement that he supports stripping health insur

by Michael Dorf My latest Verdict column discusses the recent decision of the Israel Supreme Court giving the government a year to develop a plan to substantially boost participation by Haredi (ultra-Orthodox) men in the military or face a default solution of making all such draft-age men serve. The column is mostly about the relation between judicial review and legislation in comparative perspective. I claim that the difference between so-called "soft" judicial review in Canada and the UK versus "hard" judicial review in the US is not nearly so sharp as commonly assumed. In all of these countries (and Israel), there exist formal mechanisms by which legislatures may resist unpopular court rulings, but informal norms and political pressure make the formal mechanisms very difficult to use. Here I want to say a word about the seeming strangeness of the underlying claim in the case:. The Haredim claim exemption from military service on the ground that they serve th

by Neil H. Buchanan One of the depressing parlor games of the post-November 8 era has been trying to explain how the presidential election was even close enough for Donald Trump to wriggle his way through the eye of the Electoral College needle.  The game always involves a writer offering some theory or other and ends with: "And that 's how you get Trump!" Everyone has played the game, and I am no exception.  In some ways, it is a necessary and healthy response to a shocking electoral outcome.  We really do need to know how a patently unqualified con man, a habitual liar who disqualified himself from the presidency many times over, somehow rode his needy narcissism and ignorance into a most unlikely and disastrous presidency. What we do not need are the pat answers that essentially boil down to each commentator seizing on his favorite issue and saying that Trump's victory proves whatever he has been saying all along.  This is the post-Trump equivalent of former

by Michael Dorf In his post for this blog over the weekend, my friend and co-blogger Eric Segall discusses how the record in the  Masterpiece Cakeshop case before the SCOTUS is unclear in a way that could preclude the Court from deciding the merits. En route to that conclusion, Prof. Segall explains why, in his view, the case could be seen to present a difficult line-drawing task. At one end of a spectrum are non-expressive goods and services: Purveyors of rental chairs and tents as well as limousine drivers can presumably be obligated to offer their services on a non-discriminatory basis without raising any First Amendment issues. At the other end, the government should not (absent a very good reason) be able to compel a wedding singer to perform a particular song or a poet to recite a particular poem, nor (as Prof. Segall says in answer to a query in the comments), should the government be able to compel the composition of a song or writing of a poem (absent a very good reason). S

By Eric Segall If you are reading this Blog, you probably know that this Fall the Supreme Court will hear a case brought by Tom Phillips ,  co-owner of Masterpiece Bakeshop, who refused to bake a cake for a same-sex wedding. Colorado law prohibits businesses from refusing to cater to customers because of their sexual orientation. Phillips argues that both the free speech and free exercise clauses of the First Amendment prohibit Colorado from punishing him for his refusal. Last week, I wrote a piece for SCOTUSBlog arguing that his free exercise claims should be dismissed but conceding that his free speech claims are truly difficult. It turns out, however, that those speech claims cannot be satisfactorily resolved on the present record, and therefore the Court should not resolve Phillips' speech claims.

by Diane Klein In our increasingly digital, interconnected world, lines on maps seem in some ways more artificial than ever.  Advances in both transportation and communication technologies mean that where a person is physically located matters perhaps less than it ever has.  Advances in reproductive technology and in the recognition of a wider variety of families mean that traditional notions of parenthood and "blood relation" may also matter less than ever.  But exactly where on planet Earth one happened to make one's entrance, along with the citizenship of one's parents (whatever their gender or sexual orientation), still matters - and maybe almost as much as it ever has. The case of the Dvash-Banks twins - one a U.S. citizen, one not - is illustrative.  No, the birth mother did not give birth to one twin, run across the border, and give birth to the other.  Their seemingly-impossible-but-all-too-real situation is this: Their parents, Andrew and Elad Devash-Ban

by Michael Dorf With the emergence in the last week of Bipartisan Trump, we face the prospect of congressional implementation of a statute that replaces DACA (Deferred Action for Childhood Arrivals) sooner rather than later. Despite some ambivalent tweeting, it now appears as though  Trump has agreed in principle with Chuck Schumer and Nancy Pelosi to enshrine DACA in legislation that also includes additional border security measures (but not border wall funding). Between Democrats and pro-business (and thus pro-immigration) "establishment" Republicans, there is likely majority support in Congress for such a measure. It remains, possible, however, that nothing will pass. After all, during the Obama presidency there also was majority support in Congress for some sort of moderate compromise on immigration that included protection for the Dreamers, but it was not passed then. Why not? Partly the answer is that even establishment Republicans who, if they had their policy drut

[Note: I have edited the twelfth paragraph of this post for clarity.  NHB, 1/30/2018] by Neil H. Buchanan In the era of Trump, there is no shortage of surprises in the news, and those surprises are almost always unpleasant.  When the news concerns Secretary of Education Betsy DeVos, all one can do is dive into the story with teeth clenched and wonder what new thing she has done or said that will set back America by another few decades. It was a real surprise last week, therefore, when DeVos made an announcement that was not so facially outrageous that one wondered how fifty U.S. Senators (assisted by Vice President Pence, of course) had swallowed hard enough to put her in a position with real power. This is not to say that DeVos had done something that pleased everyone -- and I am certainly not predicting that what she is going to do will be anything but awful.  She had, after all, announced plans to, ahem, revisit Obama-era guidance on how American colleges and universities s

by Sherry F. Colb In my column for this week , I examine the practice of undercover police officers, sanctioned by at least three states, having sexual contact with suspected prostitutes. The alleged purpose of this sexual contact is to help catch the suspected prostitute agreeing to exchange sex for money. The theory behind the allowance is that if sex workers know that police are prohibited from having any sexual contact with suspects, then sex workers will ask police to touch them sexually before agreeing to exchange sex for money. If a prospective customer refuses to touch them, then they will know they are dealing with a cop and will refrain from any further commercial activity. In the column, I consider three perspectives, that of a feminist/anti-trafficking advocate, that of a libertarian, and that of a moralist, and discuss, for each one, how the allowance for sexual contact between police and suspected prostitutes would fare. In this post, I want to consider the more gener

by Michael Dorf In my post last Friday , I discussed one of the claims raised in the lawsuit against the Trump administration brought by state Attorneys General to challenge the rescission of DACA--that it violates equal protection because it is motivated by racial animus. I noted that the challenge to DACA is structurally similar to the challenge to the travel ban but stronger in one way and weaker in two ways. It's (1) stronger because the claimants are in the U.S. already but (2)weaker in that discrimination on the basis of nationality is not, strictly speaking, the same thing as discrimination on the basis of national origin, and, (3) by contrast with the Travel Ban, which has an obvious and obviously intended disparate impact on Muslims, the DACA rescission applies to all undocumented immigrants, regardless of their country of origin. During the panel discussion on immigration and executive action ( video available here ), Ilya Somin pointed to another difference that make

by Neil H. Buchanan The big political story last week was that Donald Trump had sided with Democratic leaders Nancy Pelosi and Chuck Schumer in negotiations over the debt ceiling and the timing of the 2018 federal budget.  Predictably, political journalists were soon inundating the internet with thumb-sucking analyses, trying to guess what it all means. Is Trump going rogue?  Is the rich kid from Queens returning to his outer-borough routes by joining up with Brooklyn's Schumer?  Has Trump soured so badly on Republican congressional leaders that he will now return to his days as something of a Democrat?  What explains the " swerve "?  Inquiring minds want to know. The answer to all of those questions is, of course, that no one has any idea what is going on.  This is Donald Trump that we are talking about, after all. What does still matter is the substance of the agreement that Trump blessed and, more importantly, whether subsequent reports are true that Trump an

by Michael Dorf **Updated: Video available here ** At noon today I'll be speaking on a panel at Cornell Law School on Immigration and Executive Power. My fellow panelists are U Chicago Prof Eric Posner and George Mason Prof Ilya Somin, with my colleague Steve Yale-Loehr serving as moderator. The panel was planned months ago. During our planning conversations, the four of us envisioned it focusing chiefly on President Trump's Travel Ban, with other immigration issues serving as context for a broader discussion about executive power. Then came the announcement earlier this week that the administration will cancel DACA in six months (unless President Trump "revisits" the issue following congressional failure to act). Given the timeliness of the DACA issue, it will also feature prominently in our discussion today. I intend to raise the lawsuit filed on Wednesday by the attorneys general of fifteen states and the District of Columbia, which alleges that the presid

by Neil H. Buchanan Is the unsustainable Republican coalition -- big business interests, xenophobes, racists, misogynists, religious fundamentalists, anti-government absolutists, libertarians, militarists, isolationists, and debt-obsessed ignoramuses -- finally cracking apart?  If so, this week might eventually be viewed as the breaking point. Even before this week, it was clear that the Republicans were in a love-hate relationship with Donald Trump, who highlights so many of their party's contradictions.  I therefore wrote a column yesterday ( published today ) in which I revisited a fantasy scenario that I had floated last year in which Republicans en masse had repudiated Trump after he secured their presidential nomination. My basic argument was that Republicans could have "owned" Hillary Clinton if they had seemed to take the high road by helping her defeat a patently dangerous and unqualified nominee who was not really a Republican in the first place.  Republ

By William Hausdorff I’m tired of Groundhog Day.   Not the show on Broadway , which I haven’t seen.   And not the Bill Murray movie some years back, which I enjoyed.   I mean political Groundhog Day , now playing in the Middle East, in the southern U.S., and in Britain.

by Michael Dorf In my latest Verdict column , I discuss the recent landmark ruling of the Supreme Court of India finding an implicit right to privacy in the Constitution of the world's largest democracy. My column is mostly laudatory. I also take the opportunity to discuss the virtues of comparative law. The Privacy Case judgment canvasses constitutional privacy jurisprudence in the UK, US, South Africa, Canada, and the EU. I suggest that we, in turn, could learn from sister legal systems. In this essay, I want to address an issue that arises in passing in the Privacy Case : what is sometimes called "food freedom," i.e., the right to decide for oneself what to eat. The judgment does not discuss the issue at any length, but it does--unfortunately in my view--suggest that food freedom may be on the agenda for future cases. In a paragraph that mentions a variety of prior cases involving privacy issues, the court includes "food preferences and animal slaughter ( Hins

by Neil H. Buchanan Donald Trump's pardon of former Maricopa County (Arizona) Sheriff Joseph Arpaio will almost surely sink into the morass of outrages that somehow seem to cancel each other out, rather than accumulating in the public's mind.  That in itself is an indictment of our political system. Before that happens, however, we should use this opportunity to take notice of just how corrupt a system of government has to be for someone like Arpaio to have done what he did, for as long as he did it, and with the impunity that he enjoyed. Even though Trump's pardon was an affront to simple decency, and even though that pardon might well be the next big leap toward Trump's goal of becoming an unchecked dictator ,  the deeper issue that the Arpaio story should also force us to confront is the failure of accountability (and basic reasoning) at all levels of government in this country. The citizens and politicians of Maricopa County, the citizens and politicians of

by Michael Dorf It appears that President Trump will likely announce that in six months he will cancel Deferred Action for Childhood Arrivals (DACA), the Obama-era program that enables people who came to the US without proper documentation as children to remain in the country to pursue an education and/or  work. Ending DACA would be cruel and would betray Trump's February assurance that he would "show great heart" to the hundreds of thousands of "Dreamers" who have relied on DACA. It would also display an incoherent approach to executive power, as can be seen by juxtaposing Trump's apparent plan to end DACA with his administration's SCOTUS brief in the Travel Ban litigation.

by Michael Dorf On Tuesday, President Trump and the First Lady went to Texas to survey the damage caused by Hurricane/Tropical Storm Harvey. Although the Trumps were widely mocked for their dubious attire , and Trump's speech said out loud what a savvier politician would only have thought to himself (namely, that his main concern was for how people will perceive his performance), the Texas visit was, unusually for Trump, almost normal. There is no operational reason for a president to visit the site of a natural disaster, but such visits have come to be the norm, as a means by which the federal government expresses support for the people most directly affected. In an administration characterized by chaos, racism, ignorance, incompetence, and petty cruelty, Trump's brief visit to Texas stands out as relatively ho-hum. Not so his visit to Missouri the next day to tout his tax "plan. " The quotation marks recognize that Trump has not proposed anything with sufficient