Sunday, February 17, 2019

All Hail the Knowledge Revolution!

Without which we would all be ignorant!  The argument Tribe is referencing is not the argument at Slate, but it might as well be.  The basic argument there is that Trump didn't say "Mother, May I?" and Pelosi didn't say "No, you certainly may not!"

By voting on Thursday to approve a budget deal without any explicit language barring the president’s end-run maneuver, House Speaker Nancy Pelosi and members of her caucus decided not to exercise their check. Now, they can’t count on the courts to do it for them.

Yeah; that's not how it works.  Then again, this is not an argument strong on legal reasoning.  For example:

The first is the doctrine of standing. The Supreme Court held in a 2015 case that “legislators whose votes would have been sufficient to defeat … a specific legislative Act have standing to sue if that legislative action goes into effect … on the ground that their votes have been completely nullified.” The Democratic-led House would argue that the president’s decision to fund the border wall is essentially a “legislative act” beyond his authority, and thereby “completely nullified” House members’ votes. But not all of the justices are on board with this “legislative standing” doctrine. In one of his last opinions, Justice Antonin Scalia said that “[d]isputes between governmental branches … regarding the allocation of political power” are not “cases” or “controversies” that the courts can resolve. Justice Clarence Thomas agreed. Justices Neil Gorsuch and Brett Kavanaugh, who joined the court after 2015, might well adopt the same view. If so, then the House Democrats would start out with three votes at the high court against them.

The Scalia quote is from Morrison v. Olson, a case about the independent counsel statute under the Bush 1 Administration.  It has bugger all to do with the issue of standing.  On that issue, Professor Tribe is more pertinent:

 Don't worry, I won't bore you with the distinguishing details between Morrison v Olson and USHR v. Burwell.  Justice Scalia can do that:

That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish -- so that "a gradual concentration of the several powers in the same department," Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.


The present case began when the Legislative and Executive Branches became "embroiled in a dispute concerning the scope of the congressional investigatory power," United States v. House of Representatives of United States, 556 F.Supp. 150, 152 (DC 1983), which -- as is often the case with such interbranch conflicts -- became quite acrimonious. 

That's Scalia's dissent, which has no precedential value*; and obviously the facts of the case have nothing to do with usurping the Art. 1 authority of Congress to allocate governmental funds from the Treasury.  It has, as I say, nothing whatsoever to do with the question of standing.  That Slate's article doesn't understand that, just points out what poor legal reasoning the argument of that article is built on.  The suit that will make its way to the Supreme Court (several are expected to be filed, which wins the race nobody knows) will be precisely about "the allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish."  Many parties are bringing many lawsuits, and the likelihood is all of them will have standing.  As for what Scalia says in that quote from the opening of his dissent, it doesn't seem like much a leap to me to start there, and find against the President's claims of his "emergency powers."

So, should Pelosi have inserted language into the bill funding the rest of government operations saying "NO YOU MAY NOT SPEND MONEY ON A WALL!," preferably in all caps so the President couldn't miss it?  Professor Tribe has the correct legal answer to that, in the tweet at the top of this post.  Will the Court ignore precedent and standards of statutory construction and Constitutional law on the separation of powers and the plain language of Art. 1?  Maybe; but not likely.  John Roberts simply doesn't want to preside over that court, and he would likely be the 5th vote against Trump.  Or, referring again to Professor Tribe:
No, it doesn't make me feel any better that we're forced to rely on the Courts to pull our fat out of the fire.  But what I wouldn't give for a world in which opinions on the law were given only by people with knowledge of the law, and not even Tom, Dick and Harry with internet access.

*Yes, it is beloved among dissenting opinions, but mostly because it skewers a statute that died in 1999 and, following the Clinton Administration and the country's experience with it, that no one wants to resurrect.


  1. It will be beyond ironic if John Roberts desire to not go down as presiding over the most corrupt court since the mid-19th century is what reigns in Trump, though I have every confidence that soon even Roberts won't have much control over that.

    The Supreme Court is unreliable, made even more unreliable through Republican stacking of the court and the tragic refusal of liberal justices to know when they should retire. I'm praying every day for RBG and the others but I'm not optimistic.

  2. My optimism stems from the slow pace of the judiciary. Trial courts will take a few months, at least, to issue temporary injunctions (if they do). That will take time to get to appellate courts (even if the DOJ pushes them), and if there are several lawsuits, that may mean inunctions from several courts and appeal to different courts of appeal. The Supremes may, as they did in the Muslim ban cases, decline to take up any one of those in haste, which slows things down further. The Pentagon is making noises that it may move very slowly on reallocating funding against Congressional intent, and just doing so could trigger more lawsuits.

    I think the potential for lawsuits by different affected parties (from the House on down to landowners, and contractors with contracts to fulfill military contracts who find their funds suddenly taken away) could be enough to keep this from being resolved any time before Trump is re-elected or defeated.

    I don't trust the courts or the Court so much as I expect the mills of God to grind slowly, and exceeding fine. Here's hoping, anyway.