Dorf on Law

by Michael Dorf When the news broke yesterday that former Trump campaign chairman Paul Manafort and his business partner Rick Gates had been indicted, speculation almost immediately turned to the question whether Manafort and Gates--and/or George Papadopoulos, another Trump advisor--would offer dirt on Trump in exchange for leniency. Trump channeler/ potty-mouthed newly-former Twitterer Roger Stone and Trump lawyer Ty "Not that Ty Cobb" Cobb tried to throw cold water on the idea, saying that Manafort has no damaging information to share about Trump. Maybe not, but the fact that Stone and Cobb say something is--how to put this?--not exactly irrefutable evidence of that something. Certainly the concerted efforts of Trumpologists to discredit special counsel Robert Mueller as biased because he is a professional acquaintance of fired FBI Director James Comey suggests that Trumpworld is not simply counting on the truth. Rather, the efforts to paint the longtime Republican wi...

by Neil H. Buchanan Is there common ground between American liberals and some subset of the people who identify themselves as conservatives?  That is, are there meaningful issues on which -- were it not for the existence of a malignant narcissist in the White House -- something resembling middle-of-the-road reasonableness might prevail? Sadly, we know the answer to this question when it comes to elected Republicans.  In my two most recent columns, I explained that there are no "moderate" Republicans in public office (and certainly not in the U.S. Senate, which is where America's most clueless pundits are sure that moderate Republicans most assuredly can be found), and I also argued that there are not even any "principled" or "reasonable" Republican officeholders, much less moderate ones. It is true that a tiny number of Senate Republicans have recently taken a stand against the way Donald Trump conducts himself as president, which is a good...

by Michael Dorf Acting before the Department of Justice could seek an emergency stay from the Supreme Court, an undocumented minor known in court papers as Jane Doe received an abortio n just a day after the en banc US Court of Appeals for the DC Circuit ruled that the federal government could not continue to block her from doing so. Judge Millett's concurring opinion provides the chief rationale for the ruling, which was an otherwise unexplained per curium order. It is a remarkably thorough opinion, given the tight time constraints. In a Verdict column next week, I intend to discuss one of the arguments that the government offered  in its opposition to en banc review: the notion that permitting Doe to receive an abortion, even at private expense, would make the government complicit in the abortion, which the Trump administration opposes on moral grounds. I shall explain that while this is an unprecedentedly extreme view of complicity, it is the next logical step in a rat...

by Neil H. Buchanan There is no question that moderation has died in the Republican Party, especially among those in the U.S. House and Senate.  From the environment to gun safety to women's rights to economic inequality to judicial appointments, congressional Republicans continue to vote in lockstep to pass an agenda that would make even Ronald Reagan cringe. Recent events, however, have raised hopes that some of those extremely conservative Republicans will begin to act differently.  Might some, including those who are retiring -- the two most celebrated being Senators Bob Corker and Jeff Flake -- at last be willing to buck the party line and vote against the most extreme policies that their leaders have (since long before Donald Trump came along) been forcing down the country's collective throat? Not a chance.  The underlying policy situation has not changed, with Republicans in Congress moving forward on their extreme agenda no matter what their feelings are ab...

by Michael Dorf Watching the well-deserved fall of Harvey Weinstein, Bill O'Reilly, and other public figures who paid large sums to settle lawsuits for sexual harassment (and possibly worse), one can't help but think about the Groper in Chief: If a pattern of sexual harassment makes a man unfit to run a movie studio or to serve up daily doses of right-wing tripe on FoxNews, why didn't the Access Hollywood tape and the credible accusations of a dozen gropees sink Donald Trump's presidential campaign? The conventional answer over the last year or so has been a variant on Trump's Fifth Avenue Conjecture. Trump famously said "I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn't lose any voters." People who supported Trump, the conjecture goes, knew he wasn't a saint but didn't care. They were in the tank for him, warts and all. Undoubtedly there's something to that, but I want to propose a more radical--and more ...

by Neil H. Buchanan Note to readers: I have lightly edited this column at approximately 9:10pm on October 24 to incorporate the news of Senator Jeff Flake's surprise announcement that he will not run for reelection next year. America's pundit class is terrified of the idea that there are no more moderates in American politics.  More accurately, the typical pundit (from moderate left to moderate right) is concerned that there seem to be no moderate Republicans left standing. Simply recognizing this new reality would be threatening to the typical mainstream political writer, however, because admitting what has happened would make it necessary to saying something unacceptable: the two parties are not equally wrong about everything.  Because admitting that out loud is forbidden, these arbiters of political good taste both refuse to see moderation among Democrats and imagine moderation among Republicans. Supposedly, polarization in both parties is driving all of our problem...

by Sherry F. Colb Here is an open letter to the author of a recent essay on Above The Law : Dear Mr. Mystal: I had occasion last week to read your Above The Law essay, “Columbia Law Vegans Are Probably Discriminated Against, And I Assume Delicious.”  It was quite disappointing, and I feel inspired to explain why. Let me start by referencing the caption for the photograph at the beginning of the essay. It features a group of vegetables like corn and zucchini, and the caption reads “Would you kill me if I was able to look sad?” This is the only reference—and a rather oblique one, at that—to what might be motivating vegans to take upon ourselves “self-imposed ‘dietary restrictions.’” The caption suggests that vegans avoid animal products because animals “look sad” when they’re being slaughtered. Beyond this caption, if one were learning about vegans for the first time from your essay, one could be forgiven for concluding that we have no reason at all to refrain from eating and...

by Neil H. Buchanan The sales job for the White House's non-plan to change the tax system is not going well, by all accounts.  As usual, Donald Trump's lack of focus has distracted everyone, as he flits from one personal feud to another and circles back around to his obsessions with destroying the health care system and building his expensive and pointless wall. Even so, I stand by my prediction that at some point Trump and the Republicans will pass something that -- no matter how limited or small it is -- they will call "sweeping tax reform," and the supposedly hostile press will play along. After all, this is a group of people who held a Rose Garden celebration merely because they managed to pass a (terrible) health care bill through one house of Congress.  Imagine their victory lap even if they have done nothing more than, say, change the exclusions for the Alternative Minimum Tax or the depreciation rules for capital investment?  Imagine the lies that th...

By Eric Segall This week ProPublica issued a report with the headline "It's a Fact, Supreme Court Errors aren't Hard to Find." The group reviewed "dozens of cases" and said that it found a "number of false or wholly unsupported claims." Examples included erroneous voter registration rates in Chief Justice Robert's Shelby County decision striking down a key section of the Voting Rights Act; an unsupported conclusion by Justice Alito about the percentage of American companies that require background checks for its workers similar to the ones used for federal employees; and Justice Kagan's statements about the reliability of drug sniffing dogs in an important Fourth Amendment case. ProPublica claimed in the report to review 83 randomly selected opinions over a five year period and found assertions of "legislative facts" in 24 of those cases. The group alleged that seven of those opinions, more than 25%, contained false or unsuppo...

by Michael Dorf My latest Verdict column asks whether a federal ban on bump stocks would violate the Second Amendment. The short answer is no, but as I explain, the full answer is a bit more complicated. During the litigation that culminated in the 2008 SCOTUS ruling in DC v Heller , it was taken for granted by all the lawyers and justices that the federal ban on possession and transfer of machine guns made after 1976 is valid. Indeed, as I note in the column, Walter Dellinger, arguing for DC, labored to persuade the Court that machine guns are indistinguishable (for Second Amendment purposes) from other firearms and that therefore the Court ought not recognize an individual constitutional right under the Second Amendment. The ultimate opinion for the Court strongly hints in dicta that the machine gun ban is valid, but doesn't do a very good job of explaining why. My column argues that the actual test the Court announced for whether various types of weapons count as "arms...

by William Hausdorff I started writing for this blog 15 months ago, in July of 2016, when it became evident that Trump was about to capture the Republican nomination for President.   In the first column , I conveyed my bewilderment that “decent individuals” of the Republican establishment were playing along with Trump.   I noted the creepy parallel with how the conservative German political establishment played along with Hitler in the early 1930s. Even before Trump was inaugurated the questions continued--would the Republican Senate majority blithely approve all of his cabinet nominations, no matter how crazy, nasty, or unqualified? Only one Trump cabinet nominee failed to be confirmed.   Most strikingly, even though the National Security Advisor position is not subject to Senate confirmation, the certifiable whack-job Michael Flynn was named to the post with nary a Senate peep despite his and his son/advisor’s tweets on all manner of sick, bizarre conspi...

by  Joseph Kimble In an August 25, 2017 blog post , Michael Dorf asked, “How Determinate Is Originalism in Practice?” His conclusion from the evidence: not very. There followed a series of exchanges between Prof. Dorf and Prof. Lawrence Solum about sample size, alternative reasons for originalists’ ideologically conservative results (such as the need to sometimes compromise with the nonoriginalist justices), the reluctance of progressives to make originalist arguments, and other counters to Prof. Dorf’s conclusion. In the end, I thought his conclusion stood up: while you might expect originalism to lead to moderately conservative results, the decisions of Justices Scalia and Thomas are anything but. Even without data, it’s “blindingly obvious” (as Prof. Dorf puts it) that their decisions are overwhelmingly conservative. Originalism does not constrain. And neither does its companion, textualism. Here the empirical evidence is compelling, if not incontrovertible.

by Neil H. Buchanan How does a false story become the basis of a political hit job, serving an ideological agenda while refusing to go away, no matter how many times it is debunked?  Why do some tall tales of political perfidy last far beyond their expiration dates? At this point, anyone familiar with the U.S. political conversation cannot possibly know which of several "genuinely fake" scandals I might have in my sights.  The claim that climate change is a conspiracy among scientists?  Benghazi?  Vaccines?  The Clinton emails?  There is an extensive menu of false-but-persistent stories from which to choose. As it happens, I am returning once again to the non-scandal that has enveloped the Internal Revenue Service for more than four years.  The Republican Party has been obsessed with the completely fantasy-based claim that the Obama Administration directed the IRS to "target" right-wing political groups that had applied for tax-exempt status. I...

by Neil H. Buchanan "You can't beat something with nothing."  That adage is usually trotted out when someone wants to say that a purely negative argument is not enough to win, that is, that "merely" showing that someone else is wrong is somehow never sufficient to win a debate. As such, the saying ought to be the opposite of a truism.  If someone makes a bad argument, the only thing necessary to beat that argument should be a clear refutation.  "I am a great deal maker," says a man.  "No, you make bad deals," you respond.  "Oh yeah?  Show me someone who makes better deals!" As illogical as that is, it is surprisingly common for people to continue to accept bad claims until someone proves an alternative claim.  Criminal lawyers will tell you that sowing reasonable doubt in a jury's mind is almost never enough, because jurors want "a better story."  If the defendant is not the murderer, then who is? One would ho...

by Michael Dorf Shortly after the news of the Las Vegas mass shooting broke last week, business reporters noted that, as is typical after mass shootings, the share price of companies that manufacture firearms went up. Why? Because in the wake of such events, gun sales spike. Why? Because people who are thinking of buying a gun think they better do so quickly, before the government makes gun purchases illegal. Savvy investors know this will likely happen, so they bid up the share price of the gun manufacturers in anticipation of the increased demand, increased sales, and thus better short-term profits. But this only makes sense if the investors also anticipate that serious gun control will not actually be enacted. After all, if a mass shooting were to lead to the enactment of serious gun control, then the short-term spike in sales and thus profits would be more than wiped out by the long-term decline in business for the gun manufacturers. And it must also be true that the potential...

By Sherry Colb In my Verdict column for this week, I examine the case of Collins v. Virginia , on which the U.S. Supreme Court recently granted review. According to the Court, the question presented by the case is the following: " Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house." As I discuss in my column, however, the facts of the case do not really present this question at all, in part because the vehicle in question (a motorcycle) was not searched and probably cannot be searched unless it is taken apart, and in part because the vehicle was covered by a tarpaulin, the removal of which constituted a search that does not neatly fit within the automobile exception at all. Here I want to consider whether there really ought to be an automobile exception.

by Michael Dorf This evening, Prof. Colb and I will be two of the four featured speakers on an inter-disciplinary panel titled Animals, Fetuses, and Morality   at the University of Colorado. (With the cooperation of the technology, Prof. Colb and I will be participating virtually, because our flights were repeatedly delayed, canceled, rebooked, delayed, and canceled until there were no seats available to deliver us on time, so we're still in Ithaca.) We are very grateful to the sponsoring organizations--the Center for Western Civilization, Thought and Policy, along with The Center for Values and Social Policy--as well as to Prof. David Boonin of the UC Philosophy Department, who organized and will moderate the panel. We're also grateful to the other panelists, Theology Prof.  John Berkman  and Theology Prof. Charles Camosy , for agreeing to a topic that enables Prof. Colb and me to shamelessly promote our book on more or less the same subject. We look forward to a spi...

by Neil H. Buchanan Do you remember "the IRS scandal"?  If you do, you remember a lie .  Granted, it was an elaborate, innuendo-driven lie that many people repeated endlessly, trying to get you to believe that there was a scandal.  But it was still a lie, and a damaging one at that. The reason to revisit this issue now is that the Treasury Inspector General for Tax Administration (TIGTA) issued a report last week that showed that the supposedly scandalous behavior never happened.  In other words, the central lie behind this non-scandal has been definitively undermined. This is, or at least ought to be, big news.  Former President Obama and his supporters should view this as an opportunity to take a victory lap.  After more than four years of Republicans' efforts to try to backfill their absurd claims of a big political scandal, the entire story has (again) collapsed. It is not just big news, but it is also wonderful news.  Anyone who cares even...

by Neil H. Buchanan Police are still investigating the Las Vegas massacre, with the death toll at 59 and hundreds of innocent victims now recovering from their bullet wounds and beginning to deal with psychological trauma that will surely last for decades. The Republicans' response has been all too typical, using their "not now" mantra to try to shut down debate until the next, even more horrific disaster. A tragedy this extreme has also brought forth a great deal of intelligent commentary, with a range of writers and many Democrats asking plaintively if we have finally reached the point where we might do something -- anything -- to try to prevent future mass murders. One fundamental problem that long predates the carnage in Las Vegas is that the people who oppose the mindless extremism of the Republican Party and the National Rifle Association have meekly allowed the discussion to be about "gun rights," cowering in fear of a mythical version of the Uni...

by Michael Dorf In my Verdict column for this week, I discusse how the Trump administration's release of Travel Ban 3.0 should affect the pending SCOTUS challenge to Travel Ban 2.0. I mostly steer clear of the mootness questions on which briefs will be filed today. I assume that even if the Court holds the current litigation moot, the validity of Ban 3.0 will be litigated in the lower courts almost immediately. My column discusses both statutory and constitutional objections to Ban 3.0, but here I will focus on the latter. As I note in the column, the substitution of one mostly-Muslim country (Chad) for another (Sudan), the addition of some Venezuelan government officials, and the addition of a country that sends virtually none of its nationals to the US (North Korea) does not diminish the strength of the plaintiffs' prima facie case of discrimination: (1) The policy has a pronounced disparate impact on Muslims; and (2) that disparate impact is intentional, in the sense t...

By Eric Segall At midnight last night, Amazon began selling the Kindle version of a new book containing many of Justice Scalia's speeches. The late Justice was an excellent public speaker, and it speaks well of him that he was so willing to shares his views with the public. There can be no debate that he was a dedicated public servant who devoted his career to trying to improve our country. But, and his passing more than a year behind us should not stop us from recognizing this truth, he was not in any measure an originalist judge.

by Neil H. Buchanan The death of the Republicans' latest effort to take health care away from tens of millions of Americans is already a fading memory.  Sadly, we can be sure that that zombie will rise again.  The Senate's rules that supposedly constrained the Republicans in their efforts can, after all, be changed -- by the Republicans.  We can, therefore, count on a fourth, a fifth, and ultimately as many go-rounds as possible, so that Republicans can continue to pander to their base and donors. Although it is crucial to defeat Republicans' serial efforts to destroy the American health care system, the problem is that the system really does need help -- not a lot of help, but just enough effort to stabilize the insurance markets and keep the system functioning in its less-than-perfect way, keeping more people alive than the Republicans' alternatives would allow. This means that real human beings will suffer if Congress does nothing about health care.  Fewer w...

by Michael Dorf With preseason basketball now underway and the regular season set to begin in just over two weeks, the NBA may soon have to decide what to do if any players take a knee or register some other protest during the pre-game playing of the national anthem. Last week, NBA Commissioner Adam Silver noted that NBA rules require players, coaches, and trainers to "stand and line up in a dignified posture" during the playing of the national anthem. Silver has declined to say what discipline, if any, will be imposed on players (or coaches or trainers) who break the rule. But his explanation of his expectation that they will comply betrays a basic misunderstanding of principles of free speech.