Dorf on Law

by Michael C. Dorf On Wednesday, Alan Dershowitz told the US Senate that President Trump's conditioning of the release of congressionally appropriated aid to Ukraine on the announcement of an investigation into Hunter and Joe Biden was not impeachable conduct, even assuming such a quid pro quo were proven beyond a reasonable doubt. Why not? According to Prof Dershowitz, "every public official . . . believes that his election is in the public interest. [Thus,] if a President does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment." That contention was derided by Congressional Democrats and much of the media, including Susan Glasser, whose New Yorker article was aptly titled "L’ÉTAT, C’EST TRUMP." For his part, Prof. Dershowitz insisted that critics who charged that under his approach a president could have his political rivals assassinated without committing an im...

by Neil H. Buchanan It is hardly surprising that the center-right and the far-right are fighting hard against wealth tax proposals.  This commitment to regressivity can arise from a naive/stupid/evil belief in trickle-down economics -- Whatever is good for rich people ends up being good for everyone else, trust us! -- or from a fundamental commitment to the indefensible idea that rich people should always be able to keep their stuff (which assumes that they accumulated that stuff without any help from a government that provided a stable legal system, educated workers, infrastructure, and so on). Either way, there are people who are simply horrified at the idea of a government taxing the wealth of the super rich, and they have made many embarrassing arguments in service to that belief.  But which argument against the wealth tax is truly the worst?  I might have an answer.

By Eric Segall The United States Constitution is one of the most difficult Constitutions in the world to amend. It takes supermajorities in both the Congress and the states to formally change the document. Yet, it has happened 27 times in our history, and it needs to happen again with regard to the impeachment procedures for the President of the United States.

by Neil H. Buchanan Setting aside the fact that the U.S. political system is melting down as we speak, there remains an interesting set of policy proposals that the next president (if there ever is another president) might decide to address.  Among the most significant is the possibility of a wealth tax.  Unfortunately, for every good analysis of wealth taxes, there seem to be an endless number of fatuous, dishonest, or muddled responses. Yesterday, Professor Dorf offered one of the good ones.  Using former New York City mayor Michael Bloomberg's unlimited political spending as a backdrop, Professor Dorf pointed out that Senators Elizabeth Warren and Bernie Sanders could find themselves benefiting from Bloomberg's bags of money during the general election even as they argue that such wealthy people should have their wealth taxed by the federal government. Most interestingly, Professor Dorf argued that Warren is, if anything, underselling the effectiveness of her we...

by Michael C. Dorf A recent NY Times story  bears the headline  Seeing a Bloomberg Ad on Fox News, Trump Takes the Bait. The headline and the story bury the lede. The story focuses on Trump's characteristic lack of self-control. Despite advice to ignore Bloomberg, Trump has been rage-tweeting about the man he dubs "mini-Mike" in response to ads critical of Trump and in support of Bloomberg's candidacy for the Democratic presidential nomination. But the fact that criticism irks Trump enough to provoke a fit of pique is not news. The real reveal in the story is this: Bloomberg is providing a potentially very helpful service by running ads attacking Trump on traditional and social media. That spending is unlikely to result in Bloomberg's securing the nomination. Fivethirtyeight.com currently gives him and all of the non-top-four candidates a combined 0.5% chance of winning the nomination. To be sure, the Fivethirtyeight model  does not appear to take account of ...

by Neil H. Buchanan The American public is faced with the reality that the Democrats' very flawed nominating process will spit forth a nominee who might or might not be the most "electable" candidate, whatever that means. Mostly, I think, people simply want to fast-forward through the process and find out whether Donald Trump and the Republicans will succeed in smearing and so completely slandering the Democratic nominee that Trump (who is disliked by a clear majority of the public, and shows no desire to change that) somehow wins.  Still, the more likely outcome is a Democratic win followed by a succession crisis.  No one likes those two paths, but no other path seems imaginable. Because I have long argued that any Democratic candidate would beat Trump convincingly (running in anything even remotely resembling a fair electoral process, including what we had in 2016 but might no longer have, because of ever more intense voter suppression), I ought to not care about ...

by Neil H. Buchanan Once the Republicans revealed themselves as being completely disingenuous in their teeth-gnashing about budget deficits, one might have hoped that the discussion of federal budget issues would become at least a little bit more sensible.  After all, not only does neither party currently seem to have a policy interest that hangs on deficit fear-mongering, but the Republicans' credibility on these issues is now completely shot.  Deficit hysteria should be a thing of the past, right? Good luck with that.  There is a bottomless (cess)pool of people who are willing to make anti-deficit comments, helped along by two things.  First, the nonstop anti-deficit rhetoric of the last several decades makes every politician think that the safe, uncontroversial thing to do in every situation is to inveigh against the evils of federal borrowing.  Second, there is always at least a short-term advantage in pointing out that something your opponent is doing ...

by Michael C. Dorf Yesterday I argued that the ratification of the Equal Rights Amendment (ERA) probably will not make a difference to constitutional law, because the Supreme Court already construes the Fifth and Fourteenth Amendment to forbid the federal and state governments from denying equal treatment based on sex. There will continue to be questions about whether particular laws or policies deny equality, but that will be true whether or not the ERA is deemed validly adopted (a question I separately address in my latest Verdict column ). Accordingly, I concluded that the primary impact of saying that the ERA is (or is not) part of the Constitution is symbolic. Symbols matter, of course, and insofar as constitutional law eventually reflects social values, treating the ERA as valid law could eventually affect constitutional doctrine. But so could a great many other things. Yet while the conclusion that the ERA is validly part of the Constitution will have no obvious doctrinal ...

by Michael C. Dorf Last week Virginia became the 38th state to ratify the Equal Rights Amendment (ERA), but its action came four decades after the deadline Congress set for ratification and after four of those 38 states purported to rescind their ratifications. Is the ERA now valid as the 28th Amendment? And who decides? I will address these and related questions in a new Verdict column tomorrow. (Starting at midnight, you'll be able to find the column  here .) Although the column will acknowledge substantial uncertainty, I will conclude that such uncertainty should be resolved in favor of ratification. The Article V threshold for amendment is already extremely difficult to satisfy; additional hurdles (such as a deadline that is not in the text of a proposed amendment or the opportunity for rescission despite the failure of the constitutional text to provide one) should not be added. My argument in the Verdict column will be essentially agnostic with respect to the content of ...

By Eric Segall Last week I attended an excellent conference at the University of Texas on "Constitution Making and Constitutional Change." Over 100 Law professors from over 20 countries attended, and I learned a lot about constitutionalism outside the United States. I’d like to thank Professor Richard Albert for putting together such a wonderful event. For my part, I presented an abstract of a work in progress  with the thesis that if, like in the United States, judges are going  to play an important role in keeping a Constitution up to date, they should do so by placing their values and priors up front, not by hiding behind formalist legal doctrines that rarely generate the results in hard cases.

by Michael C. Dorf During Wednesday's oral argument  in Babb v. Wilkie , Chief Justice Roberts elicited laughter from the courtroom audience when he asked Roman Martinez, the lawyer for petitioner Noris Babb, whether one recitation of the phrase "okay Boomer" directed at an older person in the course of a weeks-long employment decision process would be actionable under the Age Discrimination in Employment Act (ADEA). There ensued a back-and-forth in which the Chief Justice sounded incredulous: "So calling somebody a 'boomer' and considering them for a position would be actionable?," he asked. Martinez did not directly answer the question, instead settling eventually on a reformulation of his core position in the case: "if the fact finder were to conclude that that statement . . . was one of the factors going into" the employment decision, then yes, he said, liability would follow. At issue in Babb is whether a plaintiff alleging age discrim...

Note to readers: My new Verdict column, " The Intra-Party Fight Among the Democratic Candidates Is Necessary and Healthy ," was published this morning.  My column here addresses a related but separate set of issues regarding the Democratic presidential nominating process. Neil H. Buchanan Apparently, at least to read some of the pundits on the op-ed page of The New York Times , "the women" either won the most recent Democratic non-debate or at least had some good moments.   Times columnist Frank Bruni, who has carved out a career as that newspaper's almost deliberately uninteresting liberalish lightweight, titled his column "Warren and Klobuchar Teach the Boys a Lesson."  Gail Collins, who is decidedly more interesting than Bruni (when not making offensively lighthearted jokes about Mitt Romney's former family dog), wrote about "Some Wins for the Women." As a feminist (although I concede that not all versions of feminism cons...

by Michael C. Dorf Nearly four years ago, the government sought to compel Apple to provide assistance in breaking the encryption of an iPhone. Apple resisted on legal and policy grounds. I analyzed Apple's legal argument at the time and concluded based on a SCOTUS precedent construing the All Writs Act that Apple would probably lose. I did not at the time address Apple's policy argument. I wrote: Apple argues that orders such as this--that Apple "hack" one of its customers' phones--will, in the long run, do more harm than good. Apple and its various defenders across the tech and civil liberties world argue that a technology developed for the laudable purpose of breaking encryption on a terrorist's phone could leak into the hands of hackers and other bad actors (including other terrorists). In other words, Apple is not simply saying that privacy should prevail over security (although it is certainly saying that pretty loudly), but also that this sort of or...

by Neil H. Buchanan For the past few years, I have been relentlessly -- some might say obsessively -- sounding the alarm about Donald Trump's threat to the rule of law.  Although many people agree (and how could they not?) that he has no respect for the Constitution or any other sources of law, there has been much more resistance to my prediction that Trump will refuse to accept the results of the 2020 election when he loses.  That refusal, to be clear, will take the form of Trump simply declaring himself the winner and Republicans agreeing with him and allowing the coup to happen. Again, frequent readers of my columns know that I have returned to this theme many times.  (See, e.g., here .)  I have never denied that this is an extreme prediction, but sometimes the most awful outcome is also the most likely.  In any case, now having made that argument many times in many different ways, my resolution for 2020 is to try to describe how the future might play out...

By Eric Segall President Trump successfully made the Supreme Court an important election year issue in 2016, and he is likely to do so again in 2020. This strategy works because for a long time the Justices have improperly placed themselves in the middle of many of our most important political, social, and cultural disputes. But elections shouldn’t be about judges, and courts shouldn’t be this important.  

by Neil H. Buchanan The impeachment of Donald Trump briefly receded from public discussion, but it is unsurprisingly returning to the spotlight as Mitch McConnell dances his way toward a sham trial and Nancy Pelosi tries to use her leverage to minimize the damage from McConnell's gyrations. One argument that one would have thought was settled is the claim by Trump backers that the House's two articles of impeachment are illegitimate because they do not describe any crimes.  But, as Professor Dorf put it recently : "Republicans have argued and will continue to argue to the uninformed public that only statutory criminal acts warrant impeachment." To be clear, when I say that this issue ought to have been deemed "settled," I do not imagine that it is something that Trump's cult would concede.  Just as they and their ideological compatriots in Australia manage to ignore all evidence and reasoning to continue to deny the reality of hu...

by Neil H. Buchanan Other than a Dorf on Law "classic" column that ran last Friday , this is my first column of 2020.  I certainly hope that everyone comes into the new year with happy memories from end-of-year celebrations and with confidence that the coming year will see marked improvements in the world. On that latter point, however, I cannot muster much hope that things are even going to stay the same, much less improve.  And Donald Trump's insane and illegal warmongering and baiting of Iran to start the year -- notwithstanding the happy news that we apparently are not headed into the full-on war that seemed likely only a day or two ago -- certainly eliminated any thought that the world will seem less terrifying than it has since November 8, 2016. What to do when each day seems certain to present us with terrifying news, and when the press's largely incompetent minute-by-minute coverage of an erratic president and his sycophantic party only serves to embold...

by Michael C. Dorf The coverage of Donald Trump's decision to kill Qassim Suleimani with a drone strike at the Baghdad airport without the consent of the Iraqi government has been mostly highly critical--and with good reason. Here's my "unrolled Twitter thread"  from a few days ago, when, in the immediate wake of the killing, I questioned both the stated rationale for it and a couple of potential alternative ones. Questioning the stated rationale turns out to have been sound, because when asked yesterday what specific attacks Suleimani was planning, Secretary of State Mike Pompeo gave no answer . In President Trump's statement today, he recited Suleimani's past acts but did not refer to anything concrete in the works, much less explain how killing a general would stop an operation that was going to be carried out by others. I also stand by my other criticisms of killing Suleimani as likely to be counterproductive to any rational conception of US strategic ...

by Michael C. Dorf Yesterday, U Penn Law Professor Tess Wilkinson-Ryan published a courageous essay  in which she  describes her experience as a visiting professor at Stanford, Harvard, and NYU. She went to each school (for varying lengths of time) in the hope of landing a lateral offer, only to be rejected. The essay is courageous because it tells a personal story of failure. It is very valuable, because it exposes various dysfunctions of the visit-before-you-get-hired system, including the important ways in which it is gendered. Prof Wilkinson-Ryan explains both the obvious way--women tend to have more family obligations and partners who have more difficulty relocating for 4 to 8 months--and the less obvious way--the performance expectations for female faculty are different in a way that recalls the familiar double-bind women face in various workplaces: come on too strong and you're not sufficiently female; otherwise, be seen as not sufficiently rigorous and smart. Accor...

by Michael C. Dorf Among my resolutions for 2020--both personally and professionally--is to pay less attention to the latest news, especially horse-racy political news. As a personal matter, such a resolution is probably a good idea for just about everyone who has felt drained by the seemingly never-ending escalation of outrages since 2016. Mental health professionals have been advising that we not exactly tune out but that we try to focus on what really matters. That strikes me as very sound advice, even if I often fail to follow it. On the personal side, avoiding media (especially including social media) that fan the flames of outrage is a good idea but probably not sufficient to prevent mental exhaustion/depression/anxiety. Even relatively sedate shows like NPR's Politics Podcast  encourage an obsession with political ephemera. I've been a listener since it launched. As a New Year's resolution, I'm going to skip it most of the time it shows up in my NPR One feed...

By Michael C. Dorf Preface: Below is another in our series of winter break reruns. I'll briefly introduce it by noting that as we begin a new decade (at least so far as naming goes it's now the 20s), I tried to think back on the last one. In a recent post , Prof Segall identified Citizens United v. FEC as one of the top five most important SCOTUS cases of the last decade. I agree. It also came very early in the decade. Accordingly, I thought this a good time to revisit it. In the short essay below, I argued that the best objection to the case was not that afforded corporations free speech rights--which was already the position the law took. In other writing (such as this column first published on January 25, 2010), I would develop the idea (which was hardly mine alone) that the real sin of Citizens United was its far too narrow understanding of corruption. In retrospect, I don't think we can say that all or even most of our current political woes are the result of Cit...

Note to readers: With the holiday break still upon us, I hereby offer another "classic" column -- OK, a rerun.  This column first ran on February 5, 2019, and it captures an important turn in my thinking about the relative importance of the various existential threats facing the world.  I cannot say "Enjoy!" without a huge dollop of irony.  I do, however, hope that it will be a useful re-read for those who saw it when it first ran and a thought-provoking piece for those who missed it. by Neil H. Buchanan Public debates frequently invoke -- in deeply somber tones meant to convey the utmost seriousness of purpose -- the interests of future generations.  "Our children and grandchildren" are the ultimate political prop, favored because they seem so vulnerable and deserving of our protection. Despite my disparaging tone, I do not at all disagree that we should think about the interests of people in the future when we make public policies.  My cyni...