Dorf on Law

by Neil H. Buchanan Donald Trump wants a guy named Stephen Moore to be the next person to join the Board of Governors of the Federal Reserve System.  Even if the only part of the previous sentence that you can follow is "Donald Trump wants," you know that whatever comes after those words is almost certainly based on ignorance, stupidity, or venality -- or, most likely when dealing with Trump, all three.  And in this case, the situation is truly, truly bad. As background, the Federal Reserve System (the Fed) is the name of this country's central bank (given that opaque name in 1913 to fend off populist fears of an all-powerful Bank of the United States).  The Fed is required by law to set monetary policy to maximize employment and economic growth while minimizing inflation.  Although it has a number of policy tools available, the Fed's key ongoing decision is whether to increase or decrease interest rates. Stephen Moore is a hack.  He is what other hacks point t

by Neil H. Buchanan In the United States, talking about single-issue voters is almost always a discussion about anti-abortion fundamentalist Christians.  With Donald Trump in the picture, their single-issueness has become glaringly clear, because they are his most devoted supporters even as he embodies everything that they claim to despise.  It used to be possible to imagine that right-wing Christians, for a variety of reasons, happened to have views that lined up with Republicans along a number of important dimensions, but that pretense is now simply gone.  Trump promises to give them anti- Roe judges and attacks on Planned Parenthood (and further attacks on reproductive rights), and that keeps the Christian Right firmly in his camp, no matter what. Not that there is anything wrong with being a single-issue voter.  It so happens that anti-abortion true believers have incoherent and unsupportable views even on their own religious grounds, and they are only too happy to impose thei

by Michael C. Dorf Today on Verdict you can find Prof Colb's discussion of the recent cert grant in Ramos v. Louisiana , which poses the question whether the Sixth Amendment is fully incorporated against the states. In 1972 in Apodaca v. Oregon , the Court said that the Due Process Clause of the Fourteenth Amendment incorporates the Sixth Amendment right to jury trial in serious criminal cases in state court but does not incorporate it jot-for-jot; thus, although the Sixth Amendment requires unanimous juries in federal court, the Fourteenth Amendment permits conviction by a less-than-unanimous jury in state court. Actually, the Court did not say that. Only Justice Powell did. All of the other justices thought that the Fourteenth Amendment incorporates the Sixth jot-for-jot, but some thought both require unanimity and others thought neither requires unanimity. Powell was in the middle and thus his opinion (in the companion case of Johnson v. Louisiana )   was controlling, but h

by Diane Klein It's here!  The full-scale coloring book , a perfect way to entertain/divert yourself while we wait to find out whether we will get to read the Mueller Report!

by Neil H. Buchanan There are times when something is unknown to us, yet when it becomes known, we feel like it must have been obvious all along.  The eruption of blatant racism after Barack Obama became president certainly falls into that category: Before the backlash happened, many people felt that Obama's election signaled the permanent marginalization of even most of the coded racism that Republicans had been perfecting for decades; but somehow it now seems that we must have known all along that his presidency would inevitably lead to the rise of racist demagoguery. Which brings us, of course, to Donald Trump.  Having ridden "birtherism" to political fame, and doubling down on every kind of bigotry imaginable -- aided and abetted, of course, by Fox News and the entire Republican infrastructure -- Trump turned hatred into a political cult, which he has used to drain the few remaining principles out of the party that he took over. With the end of the Mueller probe

By Eric Segall Last Wednesday, three federal judges appointed by Republican Presidents expressed great skepticism over a lawsuit brought by the State of Maryland and the District of Columbia alleging that President Trump is violating the Emoluments Clauses of the Constitution. The provision that deals with foreign countries (this post is limited to that clause) provides that " No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state." This constitutional limitation has never been interpreted by the Supreme Court. In addition to the lawsuit brought by Maryland and the District of Columbia, there are similar lawsuits filed by member of Congress (disclaimer I worked on a brief in that case), and by a citizens organization called CREW in the Southern Distr

by Neil H. Buchanan The nation's tax collector is always in a politically precarious position.  Anti-tax demagoguery is forever in the air, including ahistorical references to the Boston Tea Party (which was actually a protest against a tax break for businesses, not an uprising against paying taxes) along with moronic comments about "keeping the government's hand out of your pocket" and similar rhetoric. Meanwhile, the people who understand the importance of the Internal Revenue Service are often hesitant to defend it, because there is simply no political upside to doing so. And then there is the Republican Party, which claims to favor law and order but is suddenly tolerant of moral relativism when it comes to people not paying their taxes (and also when it comes to businesses that decide not to comply with labor, consumer, and environmental laws). Even as they have succeeded in passing tax cut after tax cut, including 2017's regressive mess (which was a

by Neil H. Buchanan The narrative of the moment in the political press and the punditocracy tells the story of a veritable civil war among Democrats, with the two sides usually described as the "the left" and "centrists," although there are all kinds of near-synonyms in use.  The big idea is that the more conservative Bill Clinton-style establishment types are worried that the surge of energy on the left is going "too far." I have already written quite a bit about this topic (see, e.g., here and here ), with my principal argument being that the broad agenda that is being called far left is anything but, both as a matter of substance and in terms of political acceptability.  Notwithstanding the presence of people in the mix who call themselves democratic socialists, it is difficult to find a substantive proposal offered by the supposed extremists that is either extreme or unpopular. Indeed, I recently claimed that the current avatar of the not-left

by Michael C. Dorf In my latest Verdict column , I take note (as have numerous others) of the recent calls by Justice Clarence Thomas for the re-examination of long-settled constitutional doctrines. Thomas objects that the Court's modern case law did not ground these doctrines in the Constitution's original meaning. He then points to substantial evidence that the doctrines--in particular the rules of NY Times v. Sullivan and Gideon v. Wainwright --contradict the original meaning of the First and Sixth Amendments respectively. My column raises a number of familiar criticisms of originalism, including some that overlap with the argument Prof. Segall recently laid out  here  on the blog earlier this week. The column then pivots to focus on a temporal problem: The cases at issue arise out of state laws and are thus governed not by the First and Sixth Amendments themselves but by the Fourteenth Amendment, which makes the relevant provisions applicable against the states. Althoug

by Neil H. Buchanan I grew up thinking that what I saw around me was normal.  There were plenty of reasons to think that this was true.  I am a white, Anglo-Saxon protestant.  I grew up in a suburb of a medium-sized midwestern industrial city.  I am a Baby Boomer.  Long before half-term Governor Sarah Palin joined the disgusting effort to try to turn the words "real America" into a political weapon, it was difficult for people like me to think of America as anything but people like us and places that seemed familiar to us.  The culture reflected us, and no one questioned it very much. That is not to say that we were unaware of differences, of course.  We knew about cities, but when I was growing up, most American cities were emptying out, with White Flight and the beginnings of industrial decline making racial differences between cities and suburbs even more difficult not to notice.  And it is not as though people like me thought of our lives as better than everyone else&

By Eric Segall Professor Jud Campbell (whom I have met only a few times casually) at the end of his excellent Yale Law Journal article titled "Natural Rights and the First Amendment," concluded the following: The First Amendment ... was not designed or originally understood to provide a font of judicially crafted doctrines protecting expressive freedom....[ P] erhaps, with a hint of irony for those who seek constitutional stability in original meaning, this lost history reveals our modern dilemma: the proper scope of expressive freedom is left for us to determine. This important contribution to both First Amendment doctrine and originalism should be read by everyone interested in the First Amendment or originalism, especially Justice Clarence Thomas, who recently advocated overturning the landmark decision New York Times v. Sullivan . Thomas  said the following: New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as con

by Neil H. Buchanan Have the Democrats started to go too far to the left ?  Anyone who follows the major newspapers or other mainstream news sources can be forgiven for thinking so, given how often that claim is being repeated these days.  And anyone who has read any of a half dozen or so of my recent columns here or on Verdict knows that I find that assertion utterly absurd.  (See., e.g., yesterday's Dorf on Law column .)  Even now, however, there is still surprisingly more to say about this dangerous meme. The major problem is that far too many journalists continue to try to prove that they are not "the enemy of the American people."  Because they do not realize (or are afraid to admit) that the Republicans are simply continuing to "work the refs," high-profile journalists overcompensate for their supposed liberal bias by being especially hard on liberals.  This takes familiar forms such as false equivalence, whataboutism, and similar dodges that allow sk

by Neil H. Buchanan Three years ago, when it looked as though Donald Trump's takeover of the Republican Party might yet be stopped by party insiders (who were desperately trying to get people to vote for one of a cast of almost comically overrated contenders -- Ted Cruz, Marco Rubio, Bobby Jindal ... ), people started to wonder whether Trump would retaliate by mounting a third-party campaign.  He was thus asked -- pointedly and prominently, especially during the joint appearances that somehow were called debates -- whether he would pledge "here and now" that he would rally to support the Republican nominee if he lost. Trump refused, even though the others onstage would always take the pledge.  (Everyone knew the question was not aimed at them, but in the interest of appearing balanced, they went through the motions.)  The matter was never tested, of course, but it seems more than likely that Trump would have been willing to continue his ego-fest as an independent, eve

by Michael C. Dorf On Verdict today, Prof Colb has a column that looks at the reactions to the non-indictment decisions in the police shooting of Stephon Clark. She explains how narratives associated with "Black Lives Matter" and "Blue Lives Matter" shape perceptions. As the title here suggests, she applies the same analysis to Me Too and Jussie Smollett's hoax. Check it out.

by Neil H. Buchanan The looming threat of autocracy that Donald Trump poses deserves more attention than it is getting.  In a Verdict column last week, I described why we should take very seriously the idea that Trump will simply refuse to leave office -- even if he loses next year's election badly -- and why Republicans are showing every sign of going along with what would amount to a coup.  "Oh, he's right that there was massive voter fraud.  That's why I lost my Senate seat, too.  We can't let Democrats steal elections!" Former Trump lawyer Michael Cohen might be a convicted liar, but when he says, "Given my experience working for Mr. Trump, I fear that if he loses the election in 2020, that there will never be a peaceful transition of power," I suspect that he is telling the truth. I do understand why many people do not want to "go there": first, it sounds alarmist to call someone a would-be dictator ("This is America! 

By Eric Segall Next week I have the privilege of participating in a  symposium at the University of Nevada at Las Vegas on substantive due process. I plan to use my time to argue that the Court should not only repudiate that anti-textual, anti-historical doctrine, but also suggest the Court should not use either the Ninth Amendment or the Privileges or Immunities Clause as its substitutes. The costs of the Justices enforcing their personal views on natural law, morality, or call it whatever you want, are just too great, especially when it looks like we will for the near future need the Court to save its prestige and energies for difficult and urgent separation of powers problems. I will briefly sketch out my general arguments here, and eventually write a much more detailed article on the subject.

by Michael C. Dorf ( cross-posted on SCOTUSblog ) Chief Justice John Roberts surprised some observers when he joined his four more liberal colleagues to grant a stay of the decision by the U.S. Court of Appeals for the 5th Circuit in  June Medical Services v. Gee . The stay blocked Louisiana’s law requiring doctors performing abortions to have admitting privileges at local hospitals. The petitioners argued that the Louisiana law was substantially similar to the Texas admitting privileges law that the Supreme Court invalidated less than three years ago in  Whole Woman’s Health v. Hellerstedt . The petitioners also contended that the distinctions drawn by the appeals court between the two states’ laws were unpersuasive. The chief justice dissented in  Whole Woman’s Health . By voting to stay the Louisiana law, was he signaling a retreat from his position there? Does he now accept the court’s abortion jurisprudence as settled? Maybe, but there is a simpler and likelier explanati

by Neil H. Buchanan Today's question is likely to seem counter-intuitive (if not flat-out odd) in today's political context: Why are we acting as though there is any chance at all that Donald Trump can win the 2020 election? After laying out the reasons to believe that next November will be a laugher for the Democrats, I will explain the strategic and prudential reasons for the Democrats to assume that it will be a tough fight.  I will also, however, add a brief warning about the downside of treating this as a close call -- and a reminder that none of this might matter in a post-democratic world.

By Michael C. Dorf My latest  Verdict column discusses a recent federal district court ruling that draft registration is unconstitutional on the ground that, by applying to men but not women, it denies equal protection. I don't engage the merits. Rather I ask whether the court erred by anticipatorily overruling a SCOTUS precedent-- Rostker v. Goldberg --in violation of an admonition from the justices to leave them the prerogative of overruling their own cases. I conclude that the district judge did violate the admonition but that he might get away with it, because an anticipatory overruling will tend to tee up the merits. Here I want to discuss another recent case. In this one, a lower court judge also thought that a binding precedent was wrong, but rather than take it upon herself to declare it inoperative, she followed it and flagged the issue for further review. Jam v. Int'l Finance Corp is a lawsuit by Indian citizens against an international organization alleging tha

by Neil H. Buchanan After yet another hiatus, the federal debt ceiling is back.  Can you feel the sudden wave of fiscal sanity?  Do you thrill to the return of limits on (supposedly) uncontrolled debt?  Are you awed by the power of Congress to legislate away economic reality?  Of course not, because the debt ceiling does nothing good, and its existence can only set us up for disasters in the future. This time, the debt ceiling was put into hibernation for a bit more than a year, but if memory serves, it has been in suspension more than it has been in force for the last seven or eight years.  The suspension stratagem was a Mitch McConnell special, whereby the esteemed Republican leader of the United States Senate figured out -- not for the first time -- that his party's self-styled budget hawks were either idiots or cynics who considered their voters to be idiots.  Voting for an increase in the debt ceiling?  Unthinkable!   Voting to suspend the debt ceiling and then bring it ba

by Diane Klein Among the antics to which we were treated last Wednesday during Michael Cohen's testimony before the House Oversight Committee was the spectacle of Rep. Kelly Armstrong (ND-R) asking Michael Cohen if he would turn over to the Committee the approximately 100 tapes Cohen claims to have made of conversations with clients - followed by Texas Republican Charles "Chip" Roy expressing sputtering malaphoric outrage that Cohen would do so "with [sic] the bat of an eye." A number of Republican lawyers on the committee either suggested or stated outright that Cohen (had he not been disbarred  just a few days earlier 26, 2019) would or should be subject to discipline either for taping his clients without their permission, or for turning over the resulting recordings to law enforcement or the House Oversight Committee.  Are they right? In a word - no.

by Michael C. Dorf On Monday the Supreme Court issued a per curiam opinion in Yovino v. Rizo , reversing the  Ninth Circuit en banc ruling in the case. The SCOTUS did not disagree with or even address the substance of the Ninth Circuit decision. Rather, it reversed because the lead opinion in the Ninth Circuit's 6-5 ruling was authored by Judge Stephen Reinhardt, who died 11 days before it was released. A footnote in the Ninth Circuit opinion stated: "Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death." That wasn't good enough for the Supreme Court, however, which announced a formal rule that a judge must validly hold office at the moment an opinion is released. The SCOTUS decision is justifiable as a bright-line rule, but, as I shall explain, the case was not quite the no-brainer that the justices im