Dorf on Law

By Michael Dorf For this final post of 2017, I just want to direct readers to my latest essay on Verdict , where I argue that insofar as the new tax law punishes blue states and their residents, it is unconstitutional--even as I acknowledge that it would be very difficult to prove the claim in court. Here I simply want to add that I am aware of a potential critique, according to which it is never illicit for Congress to favor residents of the states with a majority of representatives; that's just politics, the critique goes; if you want more benefits for your state, win more elections. I would say three things in response. First, there's a difference between members of a legislature looking out for their own constituents--which we expect--and looking to punish voters in jurisdictions that voted for the minority party--which we have not hitherto expected. Second, as I said, I realize that this distinction in principle will be very difficult to apply in practice, which is why...

by Neil H. Buchanan Surprising everyone (including themselves), Congressional Republicans joined hands earlier this month and said, "Look at us, we're finally doing something !"  They then passed a blatantly regressive and extremely unpopular tax bill and started celebrating.  Donald Trump signed it, and here we are. It did not matter to Republicans: -- that no one (other than Republican donors and ideologues) thought that changing the tax system was even a medium priority, -- that the bill was written for (and in some cases was literally written by the lobbyists for) the largest corporations and wealthy people,  -- that the bill received the worst poll ratings of any major piece of legislation in history, -- that the bill made the tax system even more complicated than it already was, -- that the process of creating the bill was chaotic, compressed, and entirely partisan, -- that the Republicans went out of their way to take a whack at taxpayers in blue st...

by Michael Dorf Last week Federal District Judge George B. Daniels of the SDNY dismissed the lawsuit pending in his court against President Trump alleging violations of the (foreign and domestic) Emoluments Clauses on multiple procedural grounds. In under 30 double-spaced pages, Judge Daniels concluded that: the private plaintiffs who run businesses that compete with Trump's businesses lack Article III standing because their injuries are too speculative; they also lack Article III standing because their claims are not redressable; they lack prudential standing because their injuries do not fall within the zone of interest protected by the Emoluments Clauses; the institutional plaintiff CREW (Citizens for Responsibility and Ethics in Washington) lacks Article III standing; the case presents a non-justiciable political question; and the lawsuit is not ripe. Wow! That's a lot of flaws. How could the plaintiffs' cast of all-star lawyers have filed such a weak case? The s...

By Eric Segall This term the Supreme Court is tackling an array of important constitutional questions, including how states organize their voting districts, the relationship between sexual orientation discrimination and freedom of speech and religion, and whether states may charge state employees mandatory fees for the work public sector unions do on their behalf. I certainly have a rooting interest in all three cases: please do something about partisan redistricting; don't cave to the discrimination is really free speech/freedom of religion trope; and, of course,s tates can charge fees to public sector union workers without first amendment restraint. However, my wish list is less substantive, but still important. So here goes:

by Neil H. Buchanan Possibly the most infuriating aspect of the tax circus that we have witnessed over the last few months is the Republicans' insistence that they are doing something difficult.  This is a "big win," say the Republicans, and the supposedly skeptical press prints headlines like "McConnell Gives Trump Gift to Celebrate Tax Win" and "U.S. House to Vote Again on Tax Bill, Trump on Verge of Win." I suppose the press justifies this by saying that the Republicans view it as a win, and the Democrats voted against it, making it accurate to score this as a W for the Republicans.  The problem is that this framing continues to ignore the fact that the Republicans can do whatever the hell they want to do .  They temporarily have the numbers to pass anything they want in both houses of Congress, limited only by whatever rules they decide to continue to impose on themselves. In other words, even if this bill is a victory for Republicans in s...

by Neil H. Buchanan The Republicans have now passed their stroke-the-rich tax bill, and we might (or might not, as I will explain tomorrow) be dealing with the consequences of this mess for years.  It continues to be ridiculous to call this a "fundamental tax overhaul" or "sweeping reform," as the major media outlets insist on doing ad nauseam, but the final bill did surprise me by being relatively large. I say "relatively" because George W. Bush's first big tax cut bill in 2001 was scored as a $1.35 trillion revenue loser over the standard ten-year budget window, whereas this one is somewhere between $1 and $1.5 trillion.  With national income having almost doubled from 2001 to 2017, the new tax cut is much smaller in any meaningful sense than Bush's bill. Indeed, The Washington Post 's fact-checker ran the numbers and found that the current bill is not only not especially large, but it is actually smaller than two tax cuts passed duri...

by Sherry F. Colb My column for this week  examines the case of Carpenter v. United States , which presents some important Fourth Amendment privacy issues. In particular, I consider Justice Gorsuch's peculiar reluctance at oral argument to utter the word "privacy" in connection with the Fourth Amendment right against unreasonable searches, a reluctance that I suggest has substantive implications. In this post, I want to discuss a different sort of privacy invasion and how an experience of my own might bear on the question of why people do not always contemporaneously protest this type of invasion. When police want to search a person's car (or suitcase or house), they frequently ask for their target's consent. This is at least in part because an officer's desire to search does not always coincide with probable cause, a warrant, or whatever else might be required for a lawful search to take place. If a suspect gives consent to the police, however, then that ...

by Michael Dorf Yesterday, Ninth Circuit Judge Alex Kozinski retired effective immediately  in  response to the growing number of accusations of sexual harassment and misconduct by his former law clerks and others. Having yesterday described Judge Kozinski as a "bosshole" who nevertheless was genuinely fond of the law clerks he gratuitously overworked, I want to praise him today for having made the right call. Given his statement that he "cannot be an effective judge" in the face of the allegations, I assume that Judge Kozinski means to retire completely, rather than to take senior status. Whether Judge Kozinski's retirement fully ends the controversy over his conduct remains to be seen. In the meantime, I want to dwell a little bit on the role that his lawyer, Susan Estrich, briefly played in the saga. Late last week, Estrich issued the following statement on behalf of Judge Kozinski: "Many of the things that are being said about me are simply not tru...

by Michael Dorf [*** Update: Judge Kozinski has apparently decided to retire (by which he appears to mean retire entirely rather than take senior status). Although my piece below discusses Judge Kozinski, its main points are more general and thus, I hope, continue to be relevant to our national conversation about sexual harassment, sexual assault, and, as is the focus here, workplace bullying regardless of its gendered dimensions. Now back to what I wrote before learning of Judge Kozinski's retirement.] I do not have a #metoo story to relate of  sexual harassment by Judge Alex Kozinski , at least nothing in which I figured as a victim of any sort of abuse. But I do have a story . . . or rather, I know some stories. In any event, I'll start at the beginning.

by Michael Dorf Per my usual practice, I have set forth below the exam I recently gave to my first-year constitutional law students. It's got two questions with two parts each and was an 8-hour open-book take-home with a 2,500-word limit. Feel free to submit answers in the comments. I'm busy grading the students' exams, so I won't comment further on answers submitted here. Question 1 On January 10, 2018, Special Counsel Robert Mueller’s investigation of alleged Russian interference in the 2016 election and related matters leads to a grand jury indictment of Donald Trump, Jr. In response, President Trump issues a full pardon to his eldest son. Sustained criticism ensues, with critics in the press and elsewhere complaining that the president is abusing his power by favoring a close family member. On January 13, Trump tweets:

by Michael Dorf In 1970, the University of Chicago Law Review published an article titled  Is Innocence Irrelevant? Collateral Attack on Criminal Judgments   by federal appeals court judge Henry Friendly. Judge Friendly was a judicial conservative in the small-c sense, non-ideological, committed to deciding cases narrowly, and an expert legal craftsman. As a young lawyer, Chief Justice John Roberts clerked for Friendly during Friendly's later years, and Roberts is fond of quoting (though not always abiding by) Friendly's aphorism that if it is not necessary to decide an issue to decide a case it is necessary not to decide the issue. Is Innocence Irrelevant?  was somewhat uncharacteristic of Friendly in that it offered a controversial policy proposal on a politically contentious issue. Writing in a period of transition from the Warren Court to the Burger Court, Friendly lamented that federal habeas corpus petitions by prisoners sentenced under state law were too o...

By William Hausdorff It’s easy to get overwhelmed by information overload regarding the colorful Trump White House, its defenders and its attackers.   But as I learned from Libra , Don DeLillo’s fictionalized account of the John F. Kennedy assassination, one doesn’t need to know exactly what is happening to understand the main plot lines.   That novel suggested that the essence of the Kennedy story was that there were at least three potentially murderous groups who felt aggrieved. These included Mafia figures furious that he named his brother as Attorney General, anti-Castro figures seething at Kennedy’s lack of support for the Bay of Pigs invasion, as well as pro-Castro figures outraged at the administration’s open hostility to Cuba. As described in Philip Shenon’s excellent non-fiction analysis , the latter group, to which Lee Harvey Oswald belonged, may have been especially enraged by the news of US attempts to assassinate Castro.   In some ways, then, it...

by Michael Dorf My latest Verdict column dives into the weeds of the Masterpiece Cakeshop case. To summarize and over-simplify, I argue that while there are hard cases that pit liberty against equality, Masterpiece Cakeshop should be deemed an easy case. That's not because the baker has no interests in this case. He may well have a substantial stake in the outcome of the case. It's just that he cannot win on his free speech claim without blowing up anti-discrimination law, and his claim that he has suffered discrimination based on religion does not find support in the record. Here I want to address an issue I use to frame the discussion in the column: Should we understand apparent conflicts between liberty and equality as genuine--as value pluralists like Isaiah Berlin and Bernard Williams argued--or should we regard them as spurious--as Ronald Dworkin did? I'm not going to try to definitively resolve that question, but I am going to try to use it as a way of distingui...

[Note: This column was revised and edited for clarity at 8:05pm on December 11, 2017.] by Neil H. Buchanan As the Republicans in Congress try to drag their highly unpopular tax bill across the finish line, they have become ever more brazen in admitting what they really think about non-rich people who dare to complain about the feed-the-rich shamelessness of the Republicans' plan.  In case anyone had forgotten, Republicans are again making it clear that they think that non-rich people are lazy, shiftless leeches. An op-ed by two analysts at the New America Foundation cuts through the nonsense and points out the fundamental reality: "Republicans Are Bringing ‘Welfare Queen’ Politics to the Tax Cut Fight."  Senator Orrin Hatch's recent complaint about "people who won’t help themselves, won’t lift a finger and expect the federal government to do everything" merely reminds us of Speaker of the House Paul Ryan's "makers and takers" meme and es...

By Eric Segall The Year of the Terrible started on January 20 th when the newly elected President of the United States gave his inauguration speech to the largest, most devoted crowd in the history of inauguration speeches. During that speech, he made clear what kind of role model and world leader he was going to be by proudly proclaiming “From this moment on, it's going to be America First…. We will follow two simple rules: buy American and hire American.” Of course, while Trump was speaking, his National Security Advisor Michael Flynn was allegedly on the phone texting a comrade that a joint nuclear power project with Russia was “good to go.” The melding of the Kremlin and the White House was off to a very good start.

by Sherry F. Colb In my column this week , I discuss what I take to be at least one reason for the longstanding reluctance (by men and women) to believe women who say they have been raped or sexually harassed by seemingly normal, ordinary men. The reason has to do with the disturbing implications of acknowledging that such conduct has occurred. Disbelief in individual cases then functions as a form of denial across the board. In this post, I want to talk about a type of sexual harassment that has not been on the national radar lately but that is nonetheless a significant impediment to women's equality and to their sense of safety and wellbeing in the workplace.

by Neil H. Buchanan The repeal (or near-repeal) of the estate tax is by no means the largest part of the Republicans' tax plans, but it is at the philosophical core of their anti-tax efforts.  Understanding how and why Republicans insistently lie about the estate tax provides a window into their longstanding effort to reward the wealthy simply for being wealthy and to punish everyone else for not being virtuous enough to be rich. Untroubled by evidence and unencumbered by logic, the Republicans have been telling tall tales about the estate tax literally for decades.  Shamefully, many Democrats have bought into those lies, with the result that the estate tax is now a husk of what it should be.  Rather than full repeal, I suspect that the current political mess will leave an even smaller and less effective estate tax in place, thus allowing Republicans to continue to campaign against it -- and to continue to use it to raise funds from wealthy donors. No matter whether...

by Michael Dorf During the oral argument in the Masterpiece Cakeshop case , Solicitor General Noel Francisco repeatedly used the following hypothetical example to make the point that a baker's creation of a custom cake (regardless of whether it contains an articulate message) is speech: Could the government "compel an African American sculptor to sculpt a cross for a Klan service?", the SG asked. And if not, doesn't that show that sculpting for a ceremony to which one objects--whether the medium is wood for a cross or dough for a cake and whether the ceremony is a wedding or a cross-burning--is expression to which the compelled speech doctrine applies? The argument in the case was wide-ranging, with various outcomes possible. For at least some justices the case poses difficult line-drawing problems. But the SG's cross example does not do the work that he seems to think it does. Here I'll highlight three objections to it. One of them was offered during the ...

by Joseph Kimble       Several readers made thoughtful comments on my original post. They deserve equally thoughtful responses, which I’ll try to provide below.      The short references are to the two articles I cited in the original post, one in The Scribes Journal of Legal Writing and the other in the Wayne Law Review .      Most of the comments centered on the Wayne article about overrulings by the Michigan Supreme Court. (Reminder: the 81 overrulings by the Republican majority were 96.3% ideologically conservative.) Few readers addressed the evidence about Justice Scalia’s opinions in the Scribes article: 6 empirical studies (pp. 30–35) and 11 scholarly examinations (p. 35, note 96) that seriously militate against any claim that his textualism was nonideological, politically neutral, objective — the simple product of rule-of-law judging. How much evidence does it take to confirm what (in Prof. Dorf’s words ) is “blindingly obvi...

by Neil H. Buchanan I am not the only observer who was surprised that the Republicans managed to get out of their own way and actually pass two versions of a relatively large change to the U.S. tax system.  (What will happen as they try to agree on a final version is, of course, anyone's guess.)  I was not, however, especially surprised by the added degrees of shamelessness and dishonesty that the Republicans were willing to bring to their effort. After all, anyone who has been paying attention -- and who is not either a partisan Republican or a diehard believer that both parties are always equally to blame -- has seen this coming.  Each time a big policy debate has erupted over the past generation, the Republicans have outdone themselves and degraded our political system in ways that were once unthinkable.

by Neil H. Buchanan I have no idea why it still surprises me, but I am always amazed when conservatives who present themselves as the brave defenders of capitalism inadvertently reveal that they have absolutely no idea what capitalism is or how it works.  A serial offender is Donald Trump's budget director, Mick Mulvaney, who is now in the midst of a fight to take over the Consumer Financial Protection Bureau (CFPB). As part of his public relations campaign, Mulvaney announced several days ago that Trump "wants me to get [the CFPB] back to the point where it can protect people without trampling on capitalism."  This is more than a bit odd, because Mulvaney has made it clear that he never thought the CFPB was at the point where it was not trampling on capitalism, and he and Trump clearly want to destroy the agency, not bring it back to some golden age of capitalism-friendly consumer protection. The big point that Trump and Mulvaney are making, after all, is that th...