Sunday, December 20, 2020
The Non-Delegation Doctrine Reconsidered
Let me start my posts on Robert Jackson's brief in Currin v. Wallace. I'm not sure how to post a PDF of the brief, but I'll see what I can do. In the meantime, let me set up the background and then address one of the Solicitor General's main points.
Jackson wrote the brief to defend the constitutionality of the Tobacco Inspection Act, which was a standard New Deal law that regulated the tobacco market. One of the arguments against the Act was that Congress unconstitutionally delegated authority to the Secretary of Agriculture. The United States rejected that assertion and the Supreme Court agreed that the Act did not unreasonably delegate. But the United States also urged the Court (unsuccessfully) to revisit the entire non-delegation doctrine. The opening prose of that section is in Jackson's unique style, including the unusual word choice of "uncanalized"
The contentions in this case illustrate the rather fantastic limitations upon the Congress which counsel read into the decisions of this Court on the subject of delegation of power. The confusion and uncertainty surrounding this subject not only lead earnest members of the profession into repeated attacks upon legislation as unlawfully delegating power, but also present to legislators a dilemma in framing legislation.
They are confronted on the one hand with the nebulous requirements of due process. If they pronounce a rigid set of standards, unforeseen cases to which the standards may apply present the danger of unconstitutionality because of caprice or arbitrary application. If, on the other hand, they seek to avoid the danger of capricious and arbitrary application through provision for flexibility in application, the statute is then attacked for undue delegation, an equally nebulous and undefined concept. This dilemma of avoiding the infirmity of unlawful delegation by running into the infirmity of caprice, or vice versa, faces legislators in most of their important tasks.
There is urgent need for some clarification of the doctrine of non-delegability. If it is to be applied to legislation, it is only just to legislators that standards be clearly outlined by which the adequacy of legislative standards is to be tested. The invocation of a vagrant and uncanalized judicial doctrine to prevent vagrant and uncanalized legislation leaves both legislators and litigants confused.
After gesturing in the direction of saying that what constitutes unreasonable delegation is "a subject of questionable justiciability," Jackson then offered a rationale for the Court's non-delegation decisions:
[T]he only cases in which legislation was held unconstitutional for excessive delegation were the Schechter and Ryan cases, both of which dealt with a delegation to the President himself. These cases, therefore, involve the question of separation of powers, for the office of President was not created by the Congress and the President was not responsible to the Congress. The executive was there endowed with nonexecutive functions. The legislative power was there delegated to the President, whose powers are in many respects independent of the Congress. It is generally held that the Judiciary will not assume nonjudicial functions, and that Congress cannot assume nonlegislative functions. It was, therefore, with a measure of consistency that the Executive was excluded from legislative functions beyond those considered necessary in filling in the details of legislation and in determining its applicability.
It is apparent, however, from that circumstance in those cases, that there is no precedent in American constitutional law for striking down legislation which delegates legislative power to an agency created by Congress and controlled by Congress, and where the agency exercising the delegated powers is completely subject to the control of Congress and may at any time be abolished. Whether delegated to so-called independent establishments or boards, or whether delegated to members of the Executive Department whose offices owe their existence and powers to the Congress, these delegations have always been sustained.
Let's ponder this analysis for a moment. First, I think the argument rests on an understanding of executive agencies that not everyone shares. Today many people would say that the President, not Congress, controls the executive agencies. Thus, the distinction between a direct delegation to the President and one to the Secretary of Agriculture is not significant. But maybe that is wrong. Congress does have more influence over Cabinet Departments than over the President himself. Second, Jackson's analysis makes more sense in the presence of the legislative veto; a practice invalidated by the Court in Chadha but used often in the 1930s.
Still, Jackson's rule has some advantages. First, Congress would be on notice that delegations to the President could be invalidated but delegations to executive agencies or independent bodies cannot be invalidated. This would not, of course, satisfy some critics of how the Congress delegates its authority to agencies, but as a prospective guide for Congress Jackson's standard would be useful. Second, there are many delegations of authority to the President himself that would be on shaky ground under this test. To take one example, the National Emergencies Act is a delegation of exceptionally broad power to the President himself, not to an agency. I think a substantial attack could be mounted against this statute if Jackson's non-delegation doctrine were the law. There are probably many other examples, though I'm not an administrative law expert.
Next time I'll talk about another thoughtful aspect of Jackson's brief on the difference between the delegation and the alienation of power that may connect up with his concurrence in Youngstown.
Posted by Gerard Magliocca on December 20, 2020 at 08:26 PM | Permalink | Comments (0)
Saturday, December 19, 2020
Robert Jackson on the Non-Delegation Doctrine
I've come upon an interesting artifact that may merit its own paper. In Robert Jackson's book on The Struggle for Judicial Supremacy, he criticized the Supreme Court's non-delegation cases (Panama Refining and Schechter Poultry). He then said that "the Solicitor General" invited the Court to clarify the non-delegation doctrine, citing a brief submitted in Currin v. Wallace. This Solicitor General was, of course, Robert Jackson. The Court did not take up Jackson's invitation, but the brief contains an extremely interesting analysis of the issues. As far as I can tell, though, nobody has given this brief much attention. Let me give you a few highlights:
- Jackson argues that congressional delegations to the President may be invalid on separation-of-powers grounds. Congressional delegations to executive agencies or independent boards, though, are permissible because Congress exercises some direct control over them.
- He says that Congress can delegate but may not alienate its power.
- He cites many examples of broad delegations at the Founding, with a special emphasis on proprietary colonial charters.
- He makes several telling textual points against the non-delegation doctrine.
I will take all of this up in greater detail in a separate post.
Posted by Gerard Magliocca on December 19, 2020 at 07:16 PM | Permalink | Comments (3)
Plenty of perjury and authoritarianism
Two unrelated items, united by the news of the day.
Based on the quality of lawyering we have seen the past 46 days, does anyone believe Nick Sandmann recovered anything more than nuisance value in settling his $ 250 million lawsuit against CNN?
In spring 2016, I had a conversation with two conservative academics about the ongoing Republican primary. One said GOP folks were worried about Trump winning. I responded, "why, because he's a crazy Fascist?", to which he responded with a smirk that they were worried about down-ballot drag. I said "which really means they know he's a crazy Fascist." The other asked, indignantly, why I thought Trump was a fascist and why I believed wanting to keep our country safe made him a fascist. I hope we agree that talking with people in the Oval Office about calling in the military to seize voting machines and order a redo of an election makes someone a fascist.* As someone wrote earlier today, Trump is a dictator; that the adjective "failed" goes in front of that does not change the fact that he is a dictator.
[*] Or let's say a dictator or an authoritarian or a person not committed to democracy. I admittedly used fascism as a synonym for those. I think the point stands.
Posted by Howard Wasserman on December 19, 2020 at 06:21 PM in Howard Wasserman, Law and Politics | Permalink | Comments (9)
Friday, December 18, 2020
In Jotwell: "The Two-Body Problem"
At Jotwell, I have a jot this week on Daphne Renan's recent article, The President's Two Bodies. Drawing on Kantorowicz's classic work on the king's two bodies, the article addresses the tension between two visions of the presidency, one focused on the temporary and personal “body mortal” and the other on the "enduring 'body politic': king and kingship, one person with two distinct but indivisible aspects." I think very highly of the article, both substantively and in terms of its exploratory and fairly open-ended approach, and explain why. Here's the opening:
For reasons that remain mysterious, the past four years or so have seen a distinct rise in interest among public law scholars in the concept of “office” and surrounding ideas. What is an office, precisely? Is its defining feature one of powers—or of duties? What is the relationship between the office and the person occupying it? Do the powers and duties connected to that office inhere in the office, the officer, or some mixture of both? Can an officer speak for him- or herself, or is that speech always “official?” What is the relationship between office, officer, and the oath of office? Does the idea of fiduciary duty illuminate such questions, or obscure them? Of course these questions have a long pedigree. But since roughly 2017, this broad topic has seen a distinct upturn in scholarly work. One hopes it is not temporary or expedient.
Scholarly work on the question of office can take different approaches—legal or political, practical or theoretical. It can attain a level of abstraction that may yield general insights but few prescriptions—this is my own preferred sin—or give very precise recommendations that are hard to tie firmly to the legal, historical, or philosophical materials. (This is one way, in my view, to read a recent critique of “fiduciary constitutionalism,” even if one thinks the concept is worth exploring.) If one wants to avoid one or the other extreme, one had better be willing to live with tension and ambivalence. That position makes many law professors uncomfortable, given their own normative inclinations and the political and professional incentives that drive them. But it can be achieved—and beautifully, at that. Such is the case with Professor Daphna Renan’s recent article, The President’s Two Bodies.
As usual, my discussion of the paper is interspersed with hobby-horse complaints about legal scholarship and some thoughts on office and the oath. One question I don't ask here and ought to take up in a post of its own is: Which legal theories or ideas that gained a lot of interest during the Trump presidency, generally accompanied by suggestions that they were not limited to that presidency alone, will be dropped now that he will be leaving office? I think there is a core of scholars who will keep on writing about oaths, constitutional norms, the Take Care Clause, and similar questions, and I'm glad. But I imagine there will be a certain, unspoken drop-off of interest on the part of some who wrote in this vein, and I suspect fancy-law-review editors will be less interested as well. I would be happy to be wrong on one or both fronts.
Posted by Paul Horwitz on December 18, 2020 at 02:52 PM in Paul Horwitz | Permalink | Comments (0)
Godwin's Law of Standing
An intentionally provocative framing of Friday's standing decision: A mayor (to keep the numbers small) issues a memorandum ordering department heads to identify, "to the extent practicable or feasible," all Jewish municipal employees so they may be excluded from receiving annual raises. Jewish employees must be identified by December 31, the date on which annual raises are triggered.
Could it really be that a Jewish employee does not have standing to challenge that memorandum prior to being identified and denied a raise? That each employee must wait until he is denied the raise, then sue?
And if not, how is this different than the census case? Is it numbers--there are more undocumented immigrants in the United States than Jews working in my hypothetical municipality, so it is more likely that all Jews can be identified? Is it the certainty of harm--no raise as opposed to maybe a loss of money or seats?
I should add I know there is no logic or consistency in standing analysis. But it is worth thinking about.
Posted by Howard Wasserman on December 18, 2020 at 11:56 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (6)
Malevolence + Incompetence = No Standing
That is the gist of the Per curiam decision dismissing the challenge to exclusion of undocumented persons from the census for lack standing/ripeness (at this point they are the same and we should stop treating them as distinct). Government agencies are struggling to identify undocumented persons and exclude them from the count--in other words, struggling to implement the presidential memorandum--by the December 31 deadline. This creates "contingencies" and "speculation" as to the extent of the harm (how many millions of people will be identified and affected) that "impedes judicial review."
Breyer dissented for Sotomayor and Kagan. Money quotation:
To repeat, the President’s stated goal is to reduce the number of Representatives apportioned to the States that are home to a disproportionate number of aliens without lawful status. The Government has confirmed that it can identify millions of these people through administrative records. But if the Census Bureau fails to fulfill its man-date to exclude aliens without lawful status and reduce the number of Representatives to which certain States are en-titled, it will be for reasons not in the record. Where, as here, the Government acknowledges it is working to achieve an allegedly illegal goal, this Court should not de-cline to resolve the case simply because the Government speculates that it might not fully succeed.
Otherwise, we have a new principle: Plaintiffs lack standing if government is too incompetent to get its shit together and commit the violation it intends, as a matter of announced formal policy, to commit.
Oh, and I forgot to add: I presume folks in the Trump Administration now believe standing requirements are great and necessary constitutional bulwarks and not technicalities and dodges wielded by fearful Justices.
Posted by Howard Wasserman on December 18, 2020 at 10:30 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)
Thursday, December 17, 2020
Trump v. New York--The Four Corners Offense
The Supreme Court did nothing with Trump v. New York (the census/apportionment case) before leaving for a month-long recess. This means that the case may never be decided, though that conclusion is not without complications.
Prior to January 20th, the President is supposed to receive the population tallies from the census and issue a report to Congress outlining the next reapportionment. One problem is that the pandemic is delaying the census work. Another issue is that the President's request to the Secretary of Commerce for data on illegal residents is creating a further delay. Thus, it is unclear whether the census data will be ready by January 20th.
Even if the census data is ready before then, though, can President Trump issue the report if Trump v. New York is still sub judice? If he does, does that mean that the report is not final and can be changed by President Biden? The Justices might be stalling in the hope that they do not need to decide anything and can declare the dispute moot. Does the stalling, though, itself end up creating the mootness?
UPDATE: Today the Supreme Court dismissed the case for want of jurisdiction. We'll see if this comes back next year.
Posted by Gerard Magliocca on December 17, 2020 at 11:08 AM | Permalink | Comments (0)
Departmentalism and the First Amendment
Last month I speculated that government officials might enact laws they know will not survive judicial review but that make good political and constitutional statements.
Case in point is the bill that New York Governor Andrew Cuomo signed Wednesday. The bill prohibits the state from selling or displaying "symbols of hate," defined to "include, but not be limited to, symbols of white supremacy, neo-Nazi 10 ideology or the Battle Flag of the Confederacy." And it calls for the enactment of measures to prohibit the sale of symbols of hate on the grounds of the state fair or other fairs receiving public funds. The first clause is fine, although largely symbolic (not sure how many New York office buildings are flying swastikas). The second is almost certain to be declared invalid if challenged in court; the prohibition is a viewpoint-discriminatory restriction on speech that will occur in a limited public forum.
Cuomo acknowledged that constitutional questions surround the bill and promised to work with the legislature on "technical changes" to correct potential constitutional problems, although I am not sure what small change will save the fairgrounds portion. Eugene Volokh points out that the law likely cannot be challenged at this point because it does not ban anything; it orders a state agency to enact regulations. Perhaps this is why Cuomo believes there is an opportunity for changes that avoid constitutional problems.
Cuomo explained his reason for signing despite the constitutional questions:
This country faces a pervasive, growing attitude of intolerance and hate — what I have referred to in the body politic as an American cancer,” Cuomo wrote in his approval message.
“By limiting the display and sale of the confederate flag, Nazi swastika and other symbols of hatred from being displayed or sold on state property, including the state fairgrounds, this will help safeguard New Yorkers from the fear-installing effects of these abhorrent symbols.”
So did Cuomo act in an "unconstitutional manner" or violate his constitutional oath? It depends on whether he believes the law is valid, apart from what courts might conclude. And the concerns Cuomo describes--intolerance and hate is a problem--can be part of the legislative and executive calculus. He seems to be trying to thread a needle here--signing a broad law for show, then attempting to dial it back to address constitutional concerns. But in a broad departmentalist sense, what he did is fine.
Is there a difference between what Cuomo and New York did here and what other states have done with strict abortion bans? None of these laws will survive judicial review under current jurisprudence. One difference is that the abortion bans are designed to create litigation with the hope/expectation that a different SCOTUS majority will change its constitutional interpretation and render the laws valid. I doubt Cuomo expects SCOTUS to change its views on hate speech, viewpoint discrimination, or public forums. Should that matter to how we evaluate a departmentalist executive?
Posted by Howard Wasserman on December 17, 2020 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)
Wednesday, December 16, 2020
Fake electors
If the Trump presidency began with alternative facts, it ends with alternative electors: Uncertified Trump would-be electors who got together, voted for Trump, and sent their results to the archive to be opened in Congress on January 6. None of these actions have any basis in law. Michael Dorf explains that the lack of legal basis might not matter, while Neil Buchanan explains how some stupid mischief could play out without success on January 6, which may explain why Mitch McConnell has discovered his limit on cravenness.
But let me add one more wrinkle combining the posts. Neil argues that one reading of the Electoral Count Act is that Congress cannot reject a slat of electors unless there is a competing slate purporting to be properly appointed. Neil argues that simply rejecting the Biden electors would not create a path to Trump becoming President, because the rejection would not be of their votes but of their appointment as electors. So Congress could not subtract 73 electors (MI/PA/AZ/GA/WI) from Biden's 306, drop him to 233, and call for a contingency election; the 73 would be dropped from 538, giving Biden 233/465 and a one-vote majority. In other words, it is not enough to carve 73 votes from Biden; they need to shift votes to Trump.
This is where the "alternate" Trump electors (whom Dorf analogizes to the French citizens taking the "Tennis Court Oath" in 1789) come in. Although lacking a fig leaf of legal authority or state support (despite what Sidney Powell apparently represented to SCOTUS), they actually exercise as much authority as force and other actors are willing to accord them. Now there is an alternative slate of electors that Republicans in Congress could recognize, despite the lack of meaningful authority; instead of 306-232 Biden, it is 305-233 Trump. Note, again, no House contingency election; Trump wins outright.
Finally, Jermey Mayer offers a final nightmare in which congressional Republicans drag things out by contesting and debating every vote, then declare that there is no electoral college winner, triggering contingency elections. Steve Vladeck explains why this cannot work: There cannot be a contingency election unless Congress agrees that no one received a majority, which cannot occur unless Congress rejects--and replaces--some Biden votes. Delaying certifying Biden's win also delays certifying the absence of a majority winner. And, Steve goes on, if they delay until noon on January 20, Nancy Pelosi becomes acting president.
Mayer's hypothesis shows a problem with using shorthand in lieu of text and procedure, something I try to explain to my students. Mayer says "The Constitution specifies that if there is no Electoral College winner, the Senate chooses the vice president and the House picks the president." But that is not an accurate description of the text or process. The 12th Amendment says, in relevant part, "the votes shall then be counted;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority," there will be contingency elections in the Senate and House. This requires more than Congress taking a long time to challenge votes. It requires Congress to do something--count and announce the results of that count. And a count, absent rejected votes or switched slates, will reveal a 306-232 Biden win. The text does not allow Congress to do nothing or to not count; inaction just runs the clock until no one shall have qualified as President or Vice President.
Note: None of this will happen, because Democrats control the House; this is all a parlor game. At the same time, if Democrats did not control the House, none of the legal niceties at work here would matter, because Republicans have shown themselves willing to do whatever they want. Which is the common them of both Neil's and Mike's posts.
Posted by Howard Wasserman on December 16, 2020 at 03:10 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)
Universality and the facial/as-applied distinction
An aspect of universality about which I have not written is its intertwinement with the distinction between facial and as-applied challenges to the laws.
Normatively, it should not matter. Dick Fallon has it right in arguing that facial/as-applied relates to the scope of the precedent rather than the scope of the judgment. A facial challenge produces precedent pre-determining the validity of the law as to non-parties and future cases, which future courts will apply as firmer precedent in resolving the second lawsuit. But any injunction in that first lawsuit remains limited to prohibiting enforcement only against the plaintiff. Descriptively, however, suggestions that a challenge to a law is facial bleeds into questions of who will be protected by the resulting judgment.
Case in point is Tuesday's First Circuit decision on a First Amendment challenge to Massachusett's ban on surreptitious recording, even of government officials performing public functions in public. In consolidated cases, the panel* the panel found one challenge ripe (Martin) and affirmed a declaratory judgment prohibiting enforcement as to recording of police in public spaces, while finding a second challenge (Project Veritas) not ripe as applied to recordings of all public employees and other individuals lacking expectations of privacy.
[*] The panel was David Barron, an Obama and potential Biden short-lister, who wrote the opinion; Justice Souter riding circuit; and Bruce Selya of the large vocabulary. Interesting note on seniority on the panel, which goes: Active Circuit, Retired SCOTUS, Senior Circuit
There was preliminary wrangling over whether Martin was facial or as-applied. Here is how Judge Barron resolved the back-and-forth:
Continue reading "Universality and the facial/as-applied distinction"
Posted by Howard Wasserman on December 16, 2020 at 10:07 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Excluding Members-Elect from Congress
As a comment to my prior post noted, Representative Bill Pascrell of New Jersey wrote Speaker Pelosi last week and suggested that the Republican members who signed an amicus brief in the Texas lawsuit challenging the presidential election result should be excluded. Pascrell quoted Section Three of the Fourteenth Amendment and asserted:
"[M]en and women who would act to tear the United States government apart cannot serve as Members of the Congress. These lawsuits seeking to obliterate public confidence in our democratic system by invalidating the clear results of the 2020 presidential election attack the text and spirit of the Constitution."
He goes on, but you get the point. Pascrell's request is absurd. Joining a brief is not "insurrection or rebellion" against the Constitution under any standard. If it were, the number of Representatives that could have been subject to exclusion would be quite long. We want people to use peaceful and lawful means to contest election results so that they don't use violent and unlawful means.
I would also point out that many people called President Rutherford B. Hayes "His Fraudulency" during his Administration because of the murky circumstances of the 1876 election. Were they all engaged in insurrection or rebellion against the Constitution? Hardly. They were exercising their First Amendment rights.
Posted by Gerard Magliocca on December 16, 2020 at 08:46 AM | Permalink | Comments (3)
Monday, December 14, 2020
Draft Paper on Section Three of the Fourteenth Amendment
I've posted a draft of my new paper on "Amnesty and Section Three of the Fourteenth Amendment." Comments are welcome.
Posted by Gerard Magliocca on December 14, 2020 at 01:13 PM | Permalink | Comments (3)
Sunday, December 13, 2020
Not a technicality, still a distraction (Updated)
Standing is the word of the weekend, as the lame-duck President took to Fox to decry the reliance on "little technicalities, like a thing called standing," before expressing shock and awe that "the President of the United States does not have standing."
I prohibit my students from using the word "technicality" in class or in their work. Another word for technicality, I tell them, is "the law." It is not a technicality when evidence is excluded because police executed an unlawful search, because there are laws prohibiting police from doing that and those laws are no less important than the law prohibiting some action as a crime. And it is not a technicality when a court dismisses (or refuses to hear) case because it lacks the authority to hear it (as standing is understood), because the laws limiting the court's adjudicative authority is as important as the Electors Clause.
Update: Trump later tried his hand at textualism, insisting that SCOTUS' original jurisdiction is enumerated in the Constitution. But so is standing (descriptively derived as it is from the "case or controversy" language), in the prior clause of the same section of the same article.
Trump's complaint also ignores that one court found standing before rejecting all the merits arguments. The court's standing analysis is debatable. I agree that Trump was injured and that an injunction prohibiting certification would remedy that injury (subject to whatever happens next under state law). But any standing here would have been Third Party standing--Trump asserting the rights of the Wisconsin legislature to set election rules. The court either needed to find the other elements of third-party standing (close connection between Trump and the real right-holder and some barrier to the right-holder asserting its rights) or conclude that, as in Bond v. U.S., a party with standing can assert any alleged constitutional defect in a law.
All that said, I continue to believe that standing is jurisdictionalized merits. What courts have made a jurisdictional threshold is a merits determination: "Your constitutional/statutory rights have not been violated in this case because the law does not recognize those rights, so you lose on the merits." That is what standing measures--"perhaps the Constitution or law was violated in some way, but it did not affect you so you cannot be the one to pursue the claim and obtain a judicial remedy." Would we be better off if courts spoke about it in those terms, rather than as a threshold that can be waved away by non-lawyers as a technicality?
Posted by Howard Wasserman on December 13, 2020 at 01:02 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)
Friday, December 11, 2020
JOTWELL: Carroll on Martinez on judges behaving badly
The new Courts Law essay comes from new contributor Maureen Carroll (Michigan), reviewing Veronica Root Martinez, Avoiding Judicial Discipline, 115 Nw. U. L. Rev. 223 (2020), considering how to create mechanisms for holding judges accountable for misconduct when they no longer are on that court.
Posted by Howard Wasserman on December 11, 2020 at 11:04 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (2)
Requiem for principles
Multiple items, unconnected except by the thread of the ongoing coup attempt:
• Carter Philips, Republican former Assistant to the SG and SCOTUS advocate and leader of an early amicus opposing the Texas lawsuit, tells the National Law Journal (subscription required) that it would be "counterproductive" to seek attorney sanctions: "The problem is you just want this to end and to move on. It doesn’t help it to end if you start filing [frivolous litigation] motions and trying to sanction the other side. . . . It turns up the volume and gives more reason for rancor." Phillips is correct that sanction activity--or post-litigation efforts before state bars--keep this going. But then how do you stop this from happening again and again? The purpose of Rule 11 is to deter repetition of this conduct or comparable conduct by others similarly situated. Without the threat of sanctions, because those sanctions are counter-productive, nothing deters Wood, Powell, Paxton, et al. from doing this again. Put another way, sanctions exist because most lawyers are internally motivated to do the right thing and sanctions can deal with the outlier. What happens when those not internally motivated are not the outliers?
• Jeb Bush says: "This is crazy. it will be killed on arrival. Why are smart people advancing this notion? Let it go. The election is over." Does he really not know the answer to that question? Smart people are advancing this notion because they can get not-smart (or not-informed or not-engaged) people to believe their narrative of a stolen election. That narrative might be dead on arrival before SCOTUS. But that narrative will allow them to maintain public support when they undertake a scorched-earth campaign against voting rights (which has already begun in Georgia in advance of the Senate run-offs) and against the Biden Administration. Ted Cruz said the Senate will not confirm Biden nominees "[a]s long as there's litigation ongoing, and the election result is disputed." So unethical lawyers bring bullshit cases, without fear of sanction or consequence, and unethical legislators use those cases as pretext to prevent Biden from governing, without fear of sanction or consequence.
• Speaking of: The President's new argument is that the Biden Administration will be a "scandal-plagued mess for years to come." Short term, he uses this as a basis for SCOTUS action (Principle: If SCOTUS knows the incoming administration will be bad, it can overturn the election to "Save America"?). Long-term, this is a repeat of Trump's successful 2016 move. It was obvious four years ago that Trump was a corrupt liar, but he managed to convince the press and a sufficient number of people that Hillary was more of a corrupt liar.
Now a President who was impeached, presided over the most corrupt and unethical modern administration, surrounded himself with criminals, engaged in blatant nepotism, and profited from public office is suggesting that the new administration is scandal-plagued before it begins. Which will work to make the press report on Biden's scandals--no matter how unrelated to the President or the administration--as if it was on a similar scale and degree to what we just witnessed (and continue to witness).
• And this is why I, and many Democrats, were disappointed by the results of this election, Biden/Harris aside. Republicans suffered no consequences for enabling Trump the last four years. They will suffer no consequences for enabling Trump in the current efforts to undermine a democratic process through blatant falsehoods. And they will suffer no consequences for preventing Biden from appointing cabinet officials, never mind judges. So there are no incentives to get them to stop.
Posted by Howard Wasserman on December 11, 2020 at 10:25 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)