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Wednesday, February 19, 2020

A Constitutional Power That Ought Not Be Used

I want to draw an analogy that might be helpful in assessing the current standoff between the President and the Attorney General.

Suppose there is a very close election for a Senate seat in November. A legal fight is then waged in state court as part of a recount. The State Supreme Court says that the Democrat won. But in January 2021, Senate Majority Leader McConnell says "not so fast." The Senate, exercising its Article I power to judge the election of its members, then votes along party lines and says that the Republican won. The Republican is seated, and the Democrat goes home empty-handed.

Can the Senate do this? Of course it can. It just chooses not to. More precisely, since the 1980s each House of Congress has treated a state judgment about who wins a race as binding. But that judgment is not binding. The relevant house of Congress is the ultimate judge. Still, there are good reasons for treating the state judgment as binding. It's more neutral and more legitimate, unless there is some serious crookedness going on in a state's electoral process.

I think that same can be said for the President making individual decisions about prosecutions or sentencing recommendations. He can do this, but he shouldn't. If there are problems in the DOJ, the President should get a new Attorney General or replace some U.S. Attorneys.

Posted by Gerard Magliocca on February 19, 2020 at 12:10 PM | Permalink


It's not even "clear" that the POTUS can make such decisions--except that it's certainly clear he *can't* do so for the reasons that are driving Trump's actions.


Posted by: Marty Lederman | Feb 19, 2020 2:24:25 PM

This post, mixes too many issues all together, but one thing:

The decision of the court, is binding. But, not because it is neutral body and more legitimate body. For, this is only the outcome of broader and more fundamental principles:

First, the rule of law, as the ultimate principle, and, the fact that the court, is the ultimate expert of law. Practically, it means, that its interpretation is the binding one. Since, it is the ultimate and correct one.

The constitution indeed, grants the court, the power to resolve federal controversies. Here I quote the relevant part from the constitution (Sec 2, Article III - " The judicial branch ") here:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution......

End of quotation:

So, controversies, arising under this constitution, are solved by federal court. That's it. So, if one standoff represents, federal issue, federal controversy, it is up to the court to deal with it ( if brought to it).

This is for too many reasons, but this one, is sufficient as such.


Posted by: El roam | Feb 19, 2020 12:54:11 PM

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