Media Mentions

...With the retirement of the Supreme Court Justice Anthony M. Kennedy, who often served as a swing vote on the court, Mr. Trump has nominated a judge to succeed him, Brett Kavanaugh, who is considered more reliably conservative. “They may well feel emboldened by the fact that Kennedy is retired, and they will likely see more conservative justices,” said Jody Freeman, a professor of environmental law at Harvard and a former adviser to President Barack Obama. However, Ms. Freeman noted that previous efforts to pre-empt such state-level authority have failed, a fact that also concerns Mr. Wheeler, according to people familiar with his thinking. “We’ve never seen a state-level waiver being revoked, and it’s not clear how that would work,” Ms. Freeman said.

There’s trouble in Trumpland, and California is caught in the middle..Revoking the waiver “would be unprecedented,” says Jody Freeman, a Harvard law professor. “There have been dozens of waivers that California has gotten over the decades since the 1970s, and [the EPA] has never revoked one.”

Contemporary liberalism holds itself aloof from the deeper sources of human flourishing in religion, family, tradition, and culture and has become a fideistic dogma of choice and autonomy for their own sakes...The brilliant Harvard law professor Adrian Vermeule tells us that liberalism is sacramental in character, and is a public ritual of overcoming superstition and bigotry in the name of reason and rationality. It needs a villain, someone to publicly condemn as a defeated enemy on its unending path to progress. Vermeule says liberalism needs enemies and voraciously — that is, rationally — searches for and destroys them. Liberalism’s gallows are always swinging.

A book review by Cass Sunstein. Liberal democracy has enjoyed much better days. Vladimir Putin has entrenched authoritarian rule and is firmly in charge of a resurgent Russia. In global influence, China may have surpassed the United States, and Chinese president Xi Jinping is now empowered to remain in office indefinitely. In light of recent turns toward authoritarianism in Turkey, Poland, Hungary, and the Philippines, there is widespread talk of a “democratic recession.” In the United States, President Donald Trump may not be sufficiently committed to constitutional principles of democratic government. In such a time, we might be tempted to try to learn something from earlier turns toward authoritarianism, particularly the triumphant rise of the Nazis in Germany in the 1930s.

The Post reports on the resolution introduced by 11 members of the House Freedom Caucus to impeach — yes, impeach — Deputy Attorney General Rod J. Rosenstein...“It’s a PR stunt that nobody who knows anything about impeachment could take seriously,” says constitutional scholar Larry Tribe. “But it will do great harm anyway by contributing to the degradation of the impeachment power, making it harder to use when it is truly needed to rein in a would be-dictator.”

If substantiated, Michael Cohen’s new assertion—that Donald Trump knew in advance about a 2016 meeting at Trump Tower with Kremlin-connected individuals—would prove that the Trump campaign sought to aid a Russian-influence operation aimed at putting Trump in office. But Cohen’s word on its own is not enough to prove anything...“I think the implications are both political and legal,” said Alex Whiting, a law professor at Harvard and a former federal prosecutor. “Trump’s public denials that he knew about the meeting are not themselves criminal, even if he knew them to be false. But they could be part of a larger obstruction-of-justice case nonetheless. Mueller could allege that Trump’s false statements were part of an effort to orchestrate a false narrative that would be fed to investigators.”

...Norman Eisen, Laurence Tribe and Caroline Frederickson wrote in February: “Endeavoring to stop an investigation, if done with corrupt intent, may constitute obstruction of justice. Plotting to assist such action may be conspiracy to obstruct justice. Normally, what is called ‘speech or debate immunity would provide a strong bulwark against any such liability for Mr. Nunes or his staff.” However, they argued, “Mr. Nunes and company may have ranged so far afield that those protections no longer apply. Under the clause, mere peripheral connection to legislative acts cannot serve as a fig leaf to shield criminal conduct.” They argued that if “a member or staff employee of the House Intelligence Committee engaged with the White House to stifle the special counsel inquiry, it would be difficult to see how such collaboration would be” protected by the speech or debate clause.

...Indeed, markets often substantially overvalue the long term, argues Harvard law professor Mark Roe, as evidenced by the intermittent bubbles in technology and other industries...Roe argues the “doomsday version of the stock-market-driven short-termism argument” – firms forgoing the research and development they need and cutting back on capital expenditures so that they can instead support their stock price via expensive share buybacks – is not supported by evidence. Yes, buybacks have risen over the last decade, but companies did not do so by draining their cash reserves: they took advantage of historically low interest rates that allowed them to borrow [and buy back] nearly for free.

An op-ed by Jack Goldsmith. The July 25 resolution by 11 House Republicans introducing articles of impeachment against deputy attorney general Rod Rosenstein is not a serious legal document. It is filled with embarrassing factual errors. Most notably, the fifth article charges Rosenstein with responsibility for the Justice Department’s supposed obfuscation of the Steele dossier’s origins as opposition research on behalf of the DNC and Hillary Clinton’s presidential campaign: “Under Mr. Rosenstein’s supervision, Christopher Steele’s political opposition research was neither vetted before it was used in October 2016 nor fully revealed to the FISC.” The problem is that Rosenstein became deputy attorney general in April 2017, long after the Steele dossier was used in the Carter Page FISA application. He was not, and could not have been, responsible for the alleged obfuscation—an allegation that the recent release of the Carter Page application revealed is baseless.

...Directly above the nation's most important tribunal is another type of court, where victors emerge not with five votes and a majority opinion but with 21 points and a margin of at least two. Yes, on the fifth and top floor of the glorious, neoclassical edifice on First Street NE is a basketball court...For some, the haven of the Highest Court was never more welcome than when the justices adjudicated capital cases. On those evenings Noah Feldman, a clerk for Justice David Souter in 1998–99, would go upstairs, often alone, to shoot as he waited for documents, decompressing and considering the gravity of the moment. "It's impossible to overstate the seriousness of how that is taken by all the personnel of the Court, including the clerks. And rightly—a human being's life is in the balance," Feldman says. "Your cortisol is pounding, you want to do everything right and make sure justice is done. And when that was going on, you really needed a break."...On the fifth floor ideological differences dissipate; strict constructionists don't square off against living constitutionalists, nor do liberals take on conservatives for the right to Kennedy's (or, now that he's retiring, Roberts's) swing vote. "It was sort of a place where everyone took off their uniforms and you couldn't tell who was who," says Nikolas Bowie, who clerked for Justice Sonia Sotomayor in 2015–16. "You were just playing basketball."

A federal judge on Wednesday rejected President Trump’s latest effort to stop a lawsuit that alleges Trump is violating the Constitution by continuing to do business with foreign governments. The ruling, from U.S. District Judge Peter J. Messitte in Greenbelt, Md., will allow the plaintiffs in the case — the attorneys general of Maryland and the District of Columbia — to proceed with their case, which says Trump has violated the Constitution’s little-used emoluments clause...Laurence Tribe, who along with Eisen has been making the emoluments argument in court and in the court of public opinion, says, “It’s an extremely significant ruling, the first federal judicial decision addressing — and endorsing — the theory we have been advancing on the Emoluments Clause ever since the start of the Trump administration.”

Trump administration officials were putting the finishing touches on a strategy to roll back car pollution standards when they received a boost from an unexpected source: the Supreme Court. The announced retirement of Justice Anthony Kennedy, a swing vote on the court, and the plan to replace him with a reliable conservative in Brett Kavanaugh, energized the regulators. They plan to go with the boldest option, including a challenge to California’s ability to set its own limits...Jody Freeman, a Harvard environmental law professor and an architect of the Obama administration’s fuel efficiency pact with California, said it’s not clear how Kavanaugh would view key legal questions around the fuel economy rollback. “I don’t think we have enough of a record on Kavanaugh’s views of state powers and federalism to be confident about how this particular challenge would come out,” she said.

U.S. companies are collecting record amounts of cash in their coffers, and many can’t think of anything better to do with it than buy back their stock. Here’s a better idea: Hand out some of those shares to rank-and-file employees...In practice, though, a sizable portion of the repurchased shares are reissued in the form of equity-based compensation, said Jesse Fried, a Harvard Law School professor who studies compensation and buybacks. Mr. Fried said shareholders may see aligning executive pay with stock performance as logical because senior leaders can do disproportionately more to affect a company’s performance. But giving out shares at the entry level where wages are set could be considered a handout. “Companies aren’t in the business of making charitable contributions with other people’s money,” he said.

An op-ed by Jesse M. Fried and Charles C.Y. Wang. There is a problem with share buybacks—but it isn’t the one many critics and legislators are obsessed with...The real problem is that buybacks, unlike dividends, can be used to systematically transfer value from shareholders to executives. Researchers have shown that executives opportunistically use repurchases to shrink the share count and thereby trigger earnings-per-share-based bonuses. Executives also use buybacks to create temporary additional demand for shares, nudging up the short-term stock price as executives unload equity. Finally, managers who know the stock is cheap use open-market repurchases to secretly buy back shares, boosting the value of their long-term equity. Although continuing public shareholders also profit from this indirect insider trading, selling public shareholders lose by a greater amount, reducing investor returns in aggregate.

Fifty years ago, James Brown, the "Godfather of Soul," released the iconic song, "Say It Loud, I'm Black and I'm Proud." It was released in August 1968, just four months after the assassination of Martin Luther King Jr. Randall Kennedy, a Harvard law professor, said he remembers when he first heard the song. The funk- and soul-inspired hit was like nothing he had heard before — especially at a time in which Kennedy said overt "colorism," or the preference for lighter skin color, was prevalent in the black community.

An op-ed by Charles Fried. The fate of our democracy may very well hang on the vote of Justice Kennedy’s replacement. If a newly constituted Supreme Court were to overrule (or limit to a vanishing point) Roe v. Wade, it would only matter if state legislatures restricted abortion rights. Undocumented men and women brought to this country as children and who have lived here their whole lives are only in danger of deportation because of the inaction of the national legislature. The President can impose a twenty-five percent tariff on aluminum and steel from Canada on grounds of national security only because Congress gave him that unilateral power. And rules protecting the environment can be reversed only because Congress has not revisited and updated the enabling legislation in decades. In a well-functioning democracy, we would not need an unelected federal judiciary to save us from these and a long list of other destructive and often unpopular outcomes. But we do not have a well-functioning democracy.

An op-ed by Jack Goldsmith...But behind the indictment, and the congratulatory reaction to it, lie some uncomfortable unanswered questions about blowback toward U.S. officials, reciprocal interference by the United States in other nations' political affairs, the lack of preparation for renewed electoral interference in this country, and U.S. journalists’ publication of stolen U.S. government information. These questions have heightened significance and more difficult answers in light of President Trump’s astounding performance Monday in Helsinki.

...Now as federal appellate Judge Brett M. Kavanaugh seeks to replace the retiring Kennedy on the Supreme Court, Kavanaugh’s 12-year record of skepticism toward such agency actions puts the landmark decision and other environmental protections at risk. Environmentalists fear that if Kavanaugh joins the court, he would vote to block anti-pollution regulations for decades, long after President Trump has departed...“That will be a major issue of litigation with a huge impact,” said Harvard law professor Richard Lazarus. “I can’t say how Judge Kavanaugh would react, but I can say Justice Kennedy would have been skeptical of taking away the state’s power in this area.” He predicted Kennedy’s retirement could have a major impact in two other areas of environmental law: clean water and endangered species.

...The National Bureau of Economic Research study found that in the decade before Donald Trump took office, there might have been a correlation between deportation fears and the drop-off in the number of Latino immigrants enrolled in the Supplemental Nutrition Assistance Program (SNAP), known as food stamps, and the Affordable Care Act insurance program, also known as Obamacare. Researchers looked at Latino enrollment in food stamps between 2006 and 2016, the most recent year for which data is available. They found that after the federal government began stepping up deportation efforts, Latino immigrant enrollment in SNAP and the ACA dropped...Declines in SNAP and ACA enrollment were largest in “mixed status” households where some people are in the country legally and some are not, the study found. For example, one family member may be a citizen, another an asylee or a permanent resident, and still another undocumented. “There’s a fear of exposing family members,” said Crystal Yang, assistant professor of law at Harvard Law School, one of the report’s authors.

An op-ed by Cass Sunstein...The United States is not at war with Russia. People who are alarmed by President Trump’s statements in Helsinki are of course entitled to use the word “treasonous” in the colloquial sense — but not in the constitutional sense.

An op-ed by Noah Feldman. How’s this for a thought experiment the day after President Donald Trump provoked bipartisan disgust over his performance with Russian President Vladimir Putin: Try to think charitably and ascribe rational, non-corrupt motives to political actors.