Articles Posted in Government

Harvard Law professor emeritus Laurence H. Tribe and former federal prosecutor Dennis Aftergut comment on an order last week by Judge Beryl Howell of the U.S. District Court for the District of Columbia ordering former Trump lawyer Evan Corcoran to answer questions he had declined to answer in January before Special Counsel Jack Smith’s grand jury. Professor Tribe and Mr. Aftergut point out that lawyers are uniquely positioned to either defend democracy against tyranny or facilitate its downfall; Judge Howell’s order reaffirmed the DC district court’s commitment to the rule of law as our shield against tyranny.

Cornell Law professor Michael C. Dorf considers whether the Biden administration’s announcement that it would end the COVID states of emergency in May affect pending Supreme Court cases involving immigration policy and student debt forgiveness. Professor Dorf explains why the news is unlikely to affect the outcome of the immigration case and, conversely, why it might affect the student debt forgiveness case.

Cornell Law professor Joseph Margulies describes the tribal blame machine, which both sides use to demonize the “other” side and drive us apart. Professor Margulies argues that a mature democracy must reject the tribal blame machine and instead embrace a fair, sober, even-handed appraisal of the facts, free from hyperbole and pot-banging.

UF Levin College of Law professor and economist Neil H. Buchanan comments on the recent announcement that under one scenario, the depletion date of the Social Security trust funds is now one year later than previously predicted—now 2035. Professor Buchanan explains the significance of this announcement—that Franklin Delano Roosevelt’s visionary program will continue (for now) to protect all generations of Americans despite efforts of Republican autocrats to destroy it.

Illinois Law dean Vikram David Amar argues that the U.S. Supreme Court should put the so-called Independent State Legislature (ISL) theory to rest sooner rather than later. Specifically, Dean Amar suggests that Justice Stephen Breyer—who is set to retire but who joined Justices John Paul Stevens, Ruth Bader Ginsburg and David Souter in expressly rejecting ISL in 2000—should be among the voices to condemn the unsupportable theory.

In this second of a two-part series of columns, UF Levin College of Law professor and economist Neil H. Buchanan explains why “The Handmaid’s Tale” is a pre-documentary—not in that it predicts what literally will happen in the United States, but in that it accurately describes America’s shift toward becoming a dystopia. Professor Buchanan points out that the mechanisms are already in place for an autocratic government to dispossess citizens of their property, and the rest can be changed at will.

Former federal prosecutor Dennis Aftergut comments on a report by the U.S. Department of Homeland Security’s Inspector General that in mid-2020, Trump administration officials in that department delayed and altered an intelligence study reporting on Russian interference in America’s 2020 presidential election. Mr. Aftergut describes three reasons the DHS inspector general’s report is important and calls on all Americans to ensure the next Congress has a majority of representatives committed to preserving our constitutional republic.

Former federal prosecutor Dennis Aftergut describes the special role that lawyers play in preserving democracy—a role even more important today than it was at the county’s founding. Mr. Aftergut calls lawyers to action particularly in light of the news of a forthcoming memoir by Geoffrey Berman, the former US Attorney for the Southern District of New York who resigned rather than carry out former President Trump’s efforts to bring weak cases against political opponents.

Former federal prosecutor Dennis Aftergut comments on Wednesday’s GOP conference meeting in which House Minority Leader Kevin McCarthy attempted to distance himself from recorded comments he made immediately after the January 6 insurrection. Mr. Aftergut argues that the only way to keep our republic from falling apart is for journalists, public officials, and citizens to keep fighting for public truth.

Cornell Law professor Michael C. Dorf comments on the recent decision by U.S. District Judge Kathryn Kimball Mizelle invalidating the federal mask mandate for travelers. Professor Dorf points out the flaws in Judge Mizelle’s reasoning and argues that her ruling reflects a right-wing ideology that is hostile to government agencies addressing even the most pressing social problems.

Cornell Law professor Michael C. Dorf comments on two cases the U.S. Supreme Court recently decided that involve the “state secrets privilege.” Professor Dorf argues that the cases demonstrate that the executive branch (regardless of whether the president is a Republican or a Democrat) will go as far as the courts allow with the public secrets privilege, so it falls to Congress to rein it in.

Former federal prosecutor Dennis Aftergut opines that former Attorney General William Barr’s forthcoming memoir glosses over Barr’s substantial role in Donald Trump’s effort to undermine democracy. Mr. Aftergut argues that Barr damaged the Justice Department’s reputation for integrity, and no memoir can make up for that.

Amherst professor Austin Sarat and former federal prosecutor Dennis Aftergut point out that in the U.S. Supreme Court’s recent decision in National Federation of Independent Businesses v. Department of Labor, the conservative majority continues the right-wing assault on knowledge and expertise. Professor Sarat and Mr. Aftergut argue that the conservative attack on regulatory agencies and the expertise they represent is a classic indicator of creeping totalitarianism—the blurring of the distinction between fact and fiction.

Amherst professor Austin Sarat explains why it is so important that the hearings by the House Select Committee on the events of January 6, 2021, be and appear to be fair. Professor Sarat argues that an atmosphere of fairness and seriousness, similar to that of the Watergate hearings in 1973, is necessary not only to persuade independents about what happened behind the scenes on January 6, but also to turn the committee’s findings into a voting issue.

In light of the approaching one-year anniversary of the January 6 Capitol Insurrection, Cornell law professor Michael C. Dorf argues that the next assault on American democracy could come from within the Capitol and other institutions of American democracy. Professor Dorf points out that the phrase “political violence” is an oxymoron in the context of a democracy; to practice democratic politics is to accept a common set of ground rules for resolving policy disputes peacefully, and when the loser of an election uses violence to try to change the result, democratic politics ceases functioning.

UF Levin College of Law professor Neil H. Buchanan explains why, if the District of Columbia was recognized as a state, that recognition cannot later be reversed. Professor Buchanan argues that to reverse statehood would signal a slippery slope wherein Republicans would be empowered to go well beyond suppressing votes in swing states to instead removing statehood from regions with Democratic voters.

Amherst College professor Austin Sarat and former federal prosecutor Dennis Aftergut comment on an interview of Capitol Police Officer Michael Byrd regarding his role defending against the January 6 riot, and on Donald Trump’s response to Byrd. Professor Sarat and Mr. Aftergut argue that Byrd’s interview reminds us that the best way to deal with a bully who is himself a coward is to call his bluff.

UF Levin College of Law professor Neil H. Buchanan describes the United States today as a “dead democracy walking”—walking with mortal wounds but not yet dead. While stating that he is open to the possibility of being proven wrong, Professor Buchanan explains why believes that Trump and Republicans have corrupted the American political system beyond repair, and he notes that his subsequent writings and analysis will proceed from the assumption that democracy will soon be dead in this country.

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—explains why ignorance of the Constitution is more consequential now than ever before, particularly coupled with increasing numbers of Americans who are indifferent or hostile toward democratic norms. Professor Sarat calls upon our leaders to take care to explain why our constitutional democracy is worth fighting for and to take up that fight every day.

In this first of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone describe a lawsuit in which Republicans are challenging Illinois’s recently adopted redistricting plan. Dean Amar and Professor Mazzone identify several obstacles the lawsuit may face, which, in their estimation, make it unlikely to succeed.