Suppose that the president ordered the storage of very heavy items on the floor of the building above your apartment, and it was known that one more shipment to that storage facility would cause the floor to collapse, destroying your apartment and killing everyone below. And let’s suppose that you were able to get an injunction against that last shipment, but SCOTUS, in its infinite wisdom, decided that this was all hypothetical, and that we really couldn’t know what the consequences would be until the shipment was delivered. After all, maybe the engineers are all wrong! No, let the shipment go forward, and then we can determine if the damage warrants lawsuits or criminal charges.
Or, maybe, since the family about to be crushed seems unconcerned that suing the president to stop the shipment can’t be done by the neighbors across the street because they lack standing.
Recognizing that my analogy is imperfect, the basic approach to the law and the actions of the president by the current SCOTUS majority pretty much fits. It is what I was complaining about the other day in the ballroom case. I recognize that the way our legal system works is oriented towards addressing completed actions rather than hypothetical ones, but it is also the case that actions are frequently blocked pending a full review of facts.
To use an analogy I alluded to in the linked post, if there is a property dispute over whether a century-old tree is on my property or your property and you want to remove it and I don’t, courts typically would block the removal pending a ruling on where the property line actually is. It is simply logical: you can’t replace a century-old tree, so waiting for the case to be adjudicated should mean that it remains pending findings of fact and law.
The current majority on this Court seems willing, when Trump is the one who wants to tear out the tree, to allow the tearing and then figure out whether it was okay to do so. Again, the ballroom construction is a perfect illustration.
The Court also used to adhere to the notion that disrupting elections was something that could not be done at the last minute *the Purcell principle), but we have already seen in the Voter Rights Act case that it was more than willing to step in even as primaries were happening.
Conversely, they are happy to take their sweet time ruling on things like the question of whether section 3 of the Fourteenth Amendment applied to Trump, not to mention the immunity case.
The majority has consistently demonstrated alacrity when it wishes and likewise has acted like molasses at a whim.
Moreover, they have a key discretion not to act at all if they so choose. As such, all of these shadow docket insertions of their opinions into the mix are totally willful and not the result of some constitutional requirement or responsibility. Indeed, they continue to show that they lack what would have once been thought of as a “conservative” temperament (i.e., one that shows constraint and that is not activist in nature).
And yes, I understand that standing is a legitimate issue. However, I would note that first, there is no reason why the lower courts can’t consider that in due course instead of having the Justices opine from on high. Second, given that the US Constitution gives states the power to regulate elections, and only Congress can intervene, then it is unclear to me how states don’t have standing when the president asserts a clearly unconstitutional power grab into their domain.
Here’s Article I, Section 4, paragraph 1:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
It is hard to be much clearer. The state legislatures have the power to conduct elections, and the US Congress can further regulate congressional elections. One need not adhere to a doctrinaire “textualism” to see this. But, since we know that four of the Justices, as a minimum, can’t comprehend English, I guess I shouldn’t be surprised.
Back to analogizing, the Third Amendment states “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” If Trump issued an EO that ICE and National Guardsmen in US cities would be allowed to sleep, rent-free, in people’s homes, would this Court allow the order to go forward and then only allow citizens to sue to get the soldiers out of their homes?
It strikes me as legitimate to have the Court block obviously unlawful orders, especially breathtakingly blatant unconstitutional ones.
And yet, it is not hyperbole to suggest that the current Court might allow such an order pending the meaning of “time of peace” and “prescribed by law” in the face of such an order.
I would note that really the only practical remedy for this situation is for the next Democratic president to expand the Court. I see no other viable alternative.
The good news on the mail-in ballot issue is that another injunction remains in effect and there is likely another one coming, perhaps today, with more judicial action in the air.
In other words, the ruling under discussion is not the final word. While I am cautiously optimistic that the obvious constitutional outcome will occur, it is nonetheless disconcerting that the Court didn’t just stay out of this. And the fact that it is possible the SCOTUS might allow the president to act in this manner is real and therefore disturbing.
See the following.
- Steve Vladek: Making Sense of the Mail-in Ballots Ruling.
- Via the AP: Nothing changes yet with the Supreme Court’s order on elections. But it could open door to ‘chaos’.
- The Democracy Docket: Explainer: The battle over Trump’s bid to restrict mail voting hits a pivotal point. Where things stand and what comes next.
- The Law Dork: What Monday’s Supreme Court election order ruling is and is not.
I will conclude with some repetition: the only practical remedy for this situation is for the next Democratic president to expand the Court. I see no other viable alternative.
