Dorf on Law

  by Michael C. Dorf Earlier this year, I participated in a conference sponsored by the Brennan Center focusing on gun rights in times of unrest. The short papers from the conference have now been published . Here I'll say a few words about my paper, Disaggregating Political Violence , connecting it to the ongoing destruction of American democracy. The core claim of my paper is easy enough to state: Modern U.S. constitutional doctrine governing the limits on government power to intervene when political activity--such as a march or rally--threatens to turn violent is based on a paradigm of what I call "outsider" political violence, that is to say,  acts perpetrated by anarchists, communists, and other marginal figures who have virtually no chance of succeeding in their political aims but nonetheless pose a threat to public safety. By contrast, with the emergence of political violence as a tactic favored by substantial numbers of supporters of one of the two major political...

by Matthew Tokson Privacy Twitter was abuzz on Friday with laments  about the effects of TransUnion LLC v. Ramirez . In TransUnion , a class of plaintiffs who'd been erroneously flagged as potential terrorists by a credit reporting agency sued for damages. In a 5-4 decision, the Supreme Court held that plaintiffs who could not prove that their terrorist designation had been reported to third parties could not sue, because they lacked a "concrete" injury under the Court's standing doctrine. That Congress had passed a law permitting individuals to sue credit agencies that fail to use reasonable procedures to ensure the accuracy of their credit reports did not matter. Congress could grant plaintiffs a legal right, and that right had clearly been violated by TransUnion, but the Court would not recognize standing in the absence of a concrete injury.  The TransUnion decision is likely disastrous for privacy plaintiffs in future cases because it sharply limits the ability o...

 By Eric Segall There is one constitutional law doctrine that rears its ugly head across the spectrum of controversial issues. It has played a role in civil rights cases, environmental cases, privacy cases, free speech controversies, separation of powers disputes, and in numerous other areas of constitutional law. It is also the one doctrine that virtually all commentators, left, right, and middle believe is singularly incoherent. That doctrine is standing, and it is a doctrine like no other. The week before last, the Supreme Court used standing to reject yet another challenge to the Affordable Care Act. The Justices held that neither the states nor the individual plaintiffs in California v. Texas   satisfied the all too familiar three part test that the Court has used for the last fifty years to determine standing: every plaintiff in federal court must suffer a personal injury caused by the defendant that can be redressed by a favorable court ruling. In a previous post , I do...

  by Michael C. Dorf Perhaps the most remarkable aspect of Mahanoy Area School Dist. v. B.L. --the case of the disappointed cheerleader swearing via Snapchat--is that only Justice Thomas dissented. Although his dissent is based on the history of schools' in loco parentis authority, he is overall so skeptical of any free speech rights of minors that we can discount his dissent as something other than an effort to apply the same basic principles that the majority applies. Put differently, all eight Justices who grappled with Mahanoy as a matter of free speech doctrine came to the same conclusion: schools have some authority to regulate student speech that  occurs off school grounds, especially with respect to bullying and threats, but none of the justifications that underwrite that authority applied here, rendering the school's punishment of Brandi Levy excessive. (Levy has made no effort to disguise her identity, so I'll refer to her by name rather than by the initials that ...

by Neil H. Buchanan It should come as no surprise that Senate Minority Leader Mitch McConnell is once again operating in bad faith.  Indeed, he barely tries to hide it anymore.  When he announced his opposition to Joe Manchin's watering down of the For the People Act (H.R.1, S.1), McConnell grabbed onto Stacey Abrams's willingness not to oppose the replacement bill and snidely declaimed  that "the plan endorsed by Stacey Abrams is no compromise."  Why?  "It still subverts the First Amendment to supercharge cancel culture and the left's name-and-shame campaign model.  It takes redistricting away from state legislatures and hands it over to computers."   Having regurgitated his party's culture wars nonsense ("cancel culture" showing up here apparently as McConnell's take on forcing large donors to be publicly identified) before stoking mindless technophobia, McConnell then said that the bill's "rotten core" is ...

by Neil H. Buchanan Even as he tried to pen a gracious departing column, Frank Bruni could not stop himself from offering a huge bowl of self-important, treacly, and hypocritical nonsense.  Harsh?  You bet, but consider that a column devoted in large measure to decrying pundits’ lust for click-bait was titled "Ted Cruz, I'm Sorry."  Lest we think that this was an editor's decision to make the piece look juicy, Bruni's opening line was, "I owe Ted Cruz an apology." Indeed, that title is the only reason that I read the column.  Click-bait works, of course.  It was only because of that enticement that I even discovered that I was reading Bruni's farewell piece.  I had long ago given up on reading his columns, which were bad for none of the reasons that he thinks that columns can be bad. But no matter the reason, there it was: "I’m a columnist no more." Finally!!! If only he could take Friedman, Dowd, Stephens, and a few more with him.  Oth...

  by Michael C. Dorf Last week I discussed the standing-by-severability issue in California v. Texas . Today, my latest Verdict column addresses the merits of the case, mostly to respond to points made by Justice Alito (joined by Justice Gorsuch) in dissent. I begin by explaining why, contrary to the Alito dissent, the individual mandate--if it exists and if it is unconstitutional--is severable from the rest of the Affordable Care Act (ACA). Some severability inquiries are difficult, because they require counterfactual analysis. This one isn't and doesn't. We know Congress thought the rest of the ACA could operate without a mandate because that's what Congress created--an ACA with no enforceable mandate--when it zeroed out the tax penalty in 2017. My severability analysis in the column also includes discussion of a point I have not seen widely discussed (although it's possible someone anticipated my view). I explain: To be sure, most or perhaps even all of the Republi...

 By Eric Segall The prevailing wisdom both inside and outside legal academia is that Chief Justice John Roberts is first and foremost an institutionalist who cares deeply about his personal legacy and how his Court will be viewed when he finally retires. Supreme Court commentators point to his two (as of last Thursday three) votes to uphold the Affordable Care Act,  as well as his decision to abide by the Court’s precedent when he invalidated two abortion laws in June Medical v. Russo   last year,  as the main support for the notion that the Chief sometimes subsumes his personal preferences for the greater good of Supreme Court legitimacy over time. His extremely narrow opinion for the Court in Fulton v. City of Philadelphia last week in favor of a Catholic social services agency joined in full by the Court's three liberals may well be seen in the same light. Court watchers on both the left and the right seem to share this narrative. This oft-told tale, however, is...

  by Michael C. Dorf Justice Breyer's majority opinion in  California v. Texas   rejected standing by the individual plaintiffs on relatively easy-to-understand grounds. They said the Affordable Care Act mandated them to purchase health insurance. The majority said that with the tax set to zero, there was no penalty or enforcement of any kind. The ruling that the individual plaintiffs lack standing was a no-brainer. After all, even when a law does clearly contain a penalty for violation, a plaintiff seeking injunctive or declaratory relief against its enforcement must show that there is a fair probability of enforcement in order to present a ripe case or controversy. Where there is not even a theoretical possibility of enforcement--because no enforcement mechanism--that's out of the question. The majority concluded that any injury the individual plaintiffs suffer in virtue of purchasing health insurance is thus not traceable to any action or potential action by any govern...

by Neil H. Buchanan   Contestant #1: "What is the reason that American democracy has never been universal?"   Contestant #2: "What is the device by which the wealthy divide and conquer those whom they oppress?"   Contestant #3: "What is assumed to be unchangeable and immutable, thus narrowing policy choices and lowering expectations?"   Ghost of Alex Trebek: "Judges?  I just want to check ...  Yes?  Yes!  For the first time ever, all three questions are correct, even though they are all different.  Congratulations to all of our contestants.  You entered Final Jeopardy in a three-way tie, and you all won by knowing at least one reason why racism is such a difficult problem for America and the world.  See you again on tomorrow's show.   Now that the Republican Party has decided that open race-baiting is no longer disqualifying -- indeed, that it might be all but required to satisfy much of their cult of White grievance -- this c...

  by Michael C. Dorf For much of the day yesterday, the lead story in the online version of the  NY Times  was this: "Trump Pressed Official to Wield Justice Dept. to Back Election Claims." The story details how, even before William Barr stepped down as Attorney General, Trump and his loyalists privately urged soon-to-be-Acting AG Jeffrey Rosen to support claims and file briefs making factually baseless arguments about election fraud that had either already been rejected or were about to be rejected by every court to consider them. The timing of the story makes sense; the emails detailing the campaign have only just become public. However, the breathless coverage is puzzling. Compared with the pressure Trump exerted on the Georgia Secretary of State to "find votes" and his encouragement of a violent seditious mob to overthrow the government, the emails to Rosen and his aides urging the filing of briefs are small potatoes. It's a bit like learning that a serial ...

by Neil H. Buchanan   Last Thursday, I wrote a column here on Dorf on Law discussing ProPublica's recent blockbuster report on the incredibly low taxes paid (in many years zero dollars) by the 25 wealthiest people in the world.  As a percentage of accurately measured annual income, these wealthy people pay what ProPublica calls "true" tax rates in the low single digits. What I hope was my main contribution with that piece was to emphasize that the non-news -- extremely rich people get away with paying low taxes -- is accompanied by good news in the way that the report changes the terms of the conversation.  Specifically, ProPublica's true tax rate calculation substitutes "change in wealth" in the denominator for the more standard "taxable income."  (Even the broader "gross income" leaves out most changes in wealth.)  As I stated there, and as I will say at more length here, that is a non-obvious move and can be misunderstood, but it is...

  by Michael C. Dorf Two recent prominent books respectively address two of our most pressing ongoing crises: Ibram X. Kendi’s How to be an Anti-Racist , like his grander and more sweeping earlier book,  Stamped From the Beginning , proposes a blueprint for racial justice; Michael Sandel’s The Tyranny of Merit purports to explain the global rise of right-wing populism as exemplified by Donald Trump’s election in 2016. I discuss them together in today’s essay because of a striking similarity in their diagnoses and a tension between their prescriptions. Before doing so, I offer some caveats. First, today’s essay is not a book review of either book. Each contains a great deal of material that I do not discuss. Second, although most of what I have to say is critical, I admire each work and found much with which I agreed. My interest here is chiefly in exploring surprising connections.

  by Michael C. Dorf This week, Robert Katzmann, former Chief Judge of the U.S. Court of Appeals for the Second Circuit, died. I didn't know Judge Katzmann all that well, but I was extremely fond of him. Whenever prominent judges or justices die, their former law clerks, friends, and acquaintances have a natural tendency to exaggerate their good qualities and minimize their negative ones. Indeed, that's a natural tendency with respect to anyone. The adage "don't speak ill of the dead" is rooted in compassion and good sense. That said, everything I know about Judge Katzmann leads me to conclude that lavish praise without criticism is, in his case, well deserved. I'll leave it to others who knew Judge Katzmann better than I did to eulogize him more fully, as he surely deserves. I'll just say a few words about his place in contemporary jurisprudence.

by Neil H. Buchanan   By now, many Dorf on Law readers will have heard about a report detailing the incredibly low rates of tax that the richest Americans pay.  ProPublica received leaked IRS records for some of the wealthiest people in the world, including name-brand billionaires like Jeff Bezos, Elon Musk, George Soros, Michael Bloomberg, and Warren Buffett.  Although there are ways in which this story would be only medium-sized even if American constitutional democracy was not being destroyed before our very eyes, in at least one way it is an especially big deal. The headlines and pundits are essentially all focused on the obvious fact that billionaires pay incredibly low rates of tax, which I will detail below.  I say "obvious" only because I am a tax law professor and economist, and people in my fields have known for quite some time what ProPublica 's report details, although obviously we did not have the records for specific taxpayers.  Based on the p...

by Neil H. Buchanan   Democratic Senator Joe Manchin continues to infuriate his colleagues (and a majority of the American public) by continuing to defend the indefensible.  I will get to the latest on the Manchin front shortly, but only as part of a larger discussion of a surprising trend that has emerged in U.S. politics over the last decade or so.   Specifically, it has become increasingly difficult to find a difference between the mindless assertions (I cannot honestly call them arguments) that we see from conservative politicians and the ravings of random online trolls.

by Michael C. Dorf The Mississippi Constitution provides for two means of amendment. The legislature can propose amendments or the People can do so via ballot initiative. State ballot initiatives--for good or ill--frequently change state law in ways that the ordinary legislative process does not. Drug policy is one area where we tend to see a divergence between popular opinion and legislator opinions. Thus, last November, Mississippi voters used the ballot initiative process to amend their state constitution to allow medical marijuana. Or so they thought. It turns out, the Mississippi Supreme Court recently decided , the Secretary of State acted unlawfully by placing the issue on the ballot. Why? Because the state constitution says that for a petition to successfully place a measure on the ballot "signatures of the qualified electors from any congressional district shall not exceed one-fifth (1/5) of the total number of signatures required to qualify an initiative petition for pla...

 By Eric Segall I subscribe to a  website called the "Law & Liberty Blog" to keep abreast of what folks I normally disagree with are saying and what they think is important and timely. Pretty much every morning I receive an e-mail alert with the day's essays. Some of the contributors have an uncanny ability to dress up their personal political values and preferences in neutral sounding legalese. Occasionally, I respond to those kinds of posts on this page .  That said, like a broken clock, every now and then an essay appears on the site that I find agreeable, persuasive, and important. So it was with a piece by Greg Weiner last Thursday titled "Why Would We Expect Philosopher Judges?" Weiner's essay is a response to a truly horrifying social media famous article in "The American Mind" by four folks calling for "A Better Originalism." That article was a conservative manifesto asking judges to pay much less attention to text, history,...

by Neil H. Buchanan Republican legislatures across the country are frantically rushing through legislation banning the teaching of Critical Race Theory (CRT) in schools and colleges.  Several states have already adopted such laws, and more will soon join them.  In a recent column here on Dorf on Law , I critiqued Oklahoma's new law and concluded that it was likely to have its intended chilling effect on discussions of race in that state's classrooms, even though it could counterintuitively be used by clever instructors to increase the discussion of systemic racism in universities and schools. Professor Dorf's column yesterday described this as "sidelash," a neologism that he defines as "reaction against gains made in another jurisdiction by a social/political movement that seeks change" (emphasis in original).  That is, the states in which Republicans are passing these laws are not the states in which CRT is likely to have much impact on the local pop...

  by Michael C. Dorf Quick! In what three states do you think educators are most likely to want to teach critical race theory (CRT) to impressionable young people? If you guessed Arkansas, Idaho, and Oklahoma, you win. Those were the first three states to pass laws banning or defunding CRT. Honorable mention if you guessed Tennessee, Texas, Georgia, or South Carolina, in which anti-CRT bills are pending. Each day brings news that another Republican-dominated state legislature has passed an anti-CRT bill, even though it's pretty obvious that one is more likely to see widespread teaching of CRT in blue states than in red ones. What's going on? For the most part, the answer is simple partisan politics in an era when cultural issues have been nationalized. CRT is the latest culture-war issue that Republican elected officials are using to appeal to the white grievance mentality of their base, while Democrats either actively agree with CRT or see it as not so different from a traditi...

by Neil H. Buchanan In the immediate aftermath of Donald Trump's shocking non-majority win in 2016, everyone was struggling for answers.  Why did it happen?  Why did no one see it coming?  Who is to blame?  Is everything different forevermore, or did Trump luck into something that he could not possibly long survive -- politically or legally?  What did all of this tell us about American voters? My research assistant recently came across one of my articles from the first few weeks after Trump was declared the winner of that election, " Reaching the Reachable Trump Voters ," and she offered a short, pointed response: " How things have changed since 2016!"  This suggested to me that it might be worthwhile to go back and look at what I wrote, to see whether my arguments still make sense to me in light of the evidence at the time as well as in light of the evidence of the past four-plus years. Short answer: Yes, things have changed, but not in any way that was n...

  by Michael C. Dorf A recent story in  The NY Times  describes the non-comeuppance of one Andrea Smith--a Native studies scholar who: (a) for many years claimed to be Native American (principally Cherokee in particular); (b) turns out not to be; (c) was found out in her apparent fakery years ago; but (d) nonetheless managed to hang onto her career as a Native scholar. The story is well worth reading for its many twists and turns, which I won't recount here. Instead, I want to try to understand why Smith ( currently listed as on sabbatical at the University of California-Riverside ) has thus far managed to weather a storm of adverse publicity.  I begin with a disclosure. I had a passing acquaintance with Smith in college, where she was a few years behind me and a fellow member of the parliamentary debate team. I heard from some of my friends and fellow debaters from that era; none of us recalls her ever claiming any Native ancestry back then, but that doesn't m...