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The Anti-Democracy Project Of John Roberts

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Trump v. CASA Inc., decided June 27, continues the personal project of John Roberts to enhance the power of the executive at the expense of the other two branches of government. It continues the work of Trump v. United States,  where Roberts gave Trump almost unlimited power to ignore Congress as he sees fit. It follows his weakening of statutes he doesn’t like, his refusal to allow Biden to exercise the authority given him by Congress, as in the student loan case, Biden v. Nebraska, and many other cases.

This post will show how these cases weaken the legislature and the judiciary while strengthening the President. That is profoundly anti-democratic.

Trump v. United States

Here’s a reasonably fair summary of Trump v. United States, which I offer because I refuse to pretend to be neutral about it and don’t seem to be able to make myself read it again anyway.  Read the real thing if you can; it’s a breath-taking demonstration of judicial hubris, based on the ridiculous idea that these six rogues can create a rule for the ages, and the even dumber idea that what this nation really needs is a “vigorous” president, unafraid to push against the boundaries of the law as set by the legislature and judicial precedent.

Trump v. CASA Inc.

This case is a government request for relief from nationwide injunctions barring enforcement of the obviously unconstitutional Trump executive order denying birthright citizenship to a large number of babies born here, causing untold damage to them and their families and inflicting untold costs on the states.

The Dissent filed by Ketanji Brown Jackson gives a clear picture of the case.

It is important to recognize that the Executive’s bid to vanquish so-called “universal injunctions” is, at bottom, a request for this Court’s permission to engage in unlawful behavior. When the Government says “do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct,” what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution— please allow this.

Snip

To hear the majority tell it, this suit raises a mind-numbingly technical query: Are universal injunctions “sufficiently ‘analogous’ to the relief issued ‘by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act’” to fall within the equitable authority Congress granted federal courts in the Judiciary Act of 1789? Ante, at 6. But that legalese is a smokescreen. It obscures a far more basic question of enormous legal and practical significance: May a federal court in the United States of America order the Executive to follow the law?

Speaking for the anti-democratic majority, Amy Coney Barrett says no. The courts cannot order the Executive to follow the law unless that is necessary to provide complete relief to the parties to the litigation. Her “reasoning” is that the Judiciary Act doesn’t allow a court to give relief to a non-party. Why? Because such relief would not have been allowed under the English Common Law.

Art. III, §1 of the Constitution provides in part as follows:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Barrett says that the judicial power of the United States is limited to the powers of the English High Court of Chancery in 1789. That’s absurd. In Marbury v. Madison, the Supreme Court held that it had the final say on Constitutional questions. That is not true under English law, and certainly not for Courts of Chancery.

Barrett cites Marbury once;

See, e.g., Marbury v. Madison, 1 Cranch 137 (1803) (concluding that James Madison had violated the law but holding that the Court lacked jurisdiction to issue a writ of mandamus ordering him to follow it).

The Wikipedia entry explains that the Court in Marbury first held that the Judiciary Act gave the Supreme Court original jurisdiction in cases of mandamus. That was greater than the original jurisdiction of the Supreme Court granted in Article III. Therefore that section of the Judiciary Act was unconstitutional, and was struck down. Marbury specifically holds that mandamus would be appropriate, but that it would have to proceed through a trial court. Does that sound like Barrett’s citation? No it does not.

Under Barrett’s holding, it is not clear exactly how the judicial branch is to act as a check on the executive branch. There is some discussion about class actions and other techniques. But there is no certainty. Perhaps the decisive factor is this:

Finally, the Government must show a likelihood that it will suffer irreparable harm absent a stay. When a federal court enters a universal injunction against the Government, it “improper[ly] intru[des]” on “a coordinate branch of the Government” and prevents the Government from enforcing its policies against nonparties. That is enough to justify interim relief. Cite omitted.

In other words, the only harm that matters on injunctive relief is the government’s. The damage to everyone else, to every person in the same position as the named parties, is irrelevant. The damage done to the rule of law by allowing a patently unconstitutional and immoral harm is irrelevant.

Comparing Trump v. CASA Inc. and Trump v. United States

1. In both cases, SCOTUS ignores the facts of the case. The indictment in Trump v. United States said that Trump conspired to overturn an election, and laid out substantial factual allegations to support the claim. Roberts natters on about core powers and such, ignoring the fact that there are no circumstances in which overturning an election is a core executive anything.

In CASA, Barrett ignores the damage Trump and his henchmen do by imposing a blatantly unconstitutional policy on non-parties.

2 In both cases SCOTUS imposes an outcome that favors one political party. In Trump v. United States the decision favors Trump. There is no reasonable observer who thinks this would have been the outcome if that indictment had been charged against a Democrat.

In CASA, Barrett says that Gorsuch, Alito, Thomas, and Kavanaugh had previously raised questions about nationwide injunctions, including those levied against the Biden administration. Either she or Roberts or both could have joined with those four to deal with the problem in any of the cases raised by Biden. But no. Then, suddenly, a few weeks after Trump’s second term begins, they both decide this is an important Constitutional issue that must be totally resolved in favor of Trump and the Republicans.

3. In both cases, the power of the coordinate branches of government is weakened. In Trump v. United States, Roberts strangled the power of Congress to control the actions of the President. The holding makes it clear that Trump is entitled to do whatever he wants with the powers given him by law, and can only be held accountable under highly limited circumstance, to be determined later by him and his crew.

The decision also weakened the power of the judiciary to check the executive branch. It gave no guidance to lower courts or prosecutors. It sets itself up as the arbiter, a role it can easily duck. It insures vast delays in any effort to enforce the law against a criminal president.

The opinion in In CASA weakens the power of the judiciary to check the actions of a lawless executive branch, this time directly. It also weakened the power of Congress. Existing laws can only be enforced piecemeal against a lawless president.

In both cases, the power of the President is exalted above all other considerations.

The attack on democracy

Both cases should be seen as part of a decades-long attack on democracy. The legislature is the most democratic branch. It is closest to the citizenry, even given the undemocratic makeup of the Senate. Reducing the power of Congress reduces the influence of voters. By weakening the judiciary, the anti-democratic forces insure that the actions of a lawless executive cannot be controlled.

These aren’t the only attacks by SCOTUS though. The Voting Rights Act was expressly intended to improve our democracy. Roberts struck it down, finding that there is an implicit statute of limitations in the Reconstruction Amendments.

The recent invention of the so-called major questions doctrine weakens the power of the legislature to deal with emergencies. The attacks by SCOTUS on the administrative state are designed to increase the power of the president despite the explicit intent of Congress. Does anyone think Congress would have empowered Trump to decide on the toxicity of lead or the value of specific vaccines? Does anyone think letting Trump direct prosecutions and criminal investigations is a reasonable thing to do?

It’s not just that Roberts and his gang refuse to protect our rights. They actively help Trump destroy our rights.

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The Major Questions Metadoctrine and The Slaughterhouse Cases

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In my last post I show how US v. Cruikshank (1876) and The Slaughterhouse Cases (1873) affect our gun control crisis. In this post I look at the connection between The Slaughterhouse Cases and Biden v. Nebraska, the recent case striking down Biden’s student loan reduction plan.

The Slaughterhouse Cases

I discuss The Slaughterhouse Cases here. The Supreme Court could have decided them strictly on the basis of the police power. The appellant butchers argued that the untrammeled right to earn a living was a right protected by the Privileges or Immunities Clause of the 14th Amendment. That’s obviously not true. The Court later takes up the purposes of the Reconstruction Amendments, and there’s nothing to support the Appellants’ argument.

But Samuel Miller, who wrote the majority opinion, explains that he and the other members of the Court have thought it over, and “ we now propose to announce the judgments which we have formed in the construction of those articles, so far as we have found them necessary to the decision of the cases before us, and beyond that, we have neither the inclination nor the right to go.”

One of the advisory opinions that follow is that the Reconstruction Amendments were not intended to change the balance of powers between the federal and state governments. Miller justifies this by saying that if Congress wants to make an significant change the balance of powers between the states and the US, it has to do so in language acceptable to the Supreme Court.

Earlier in the opinion, MIller said that the Reconstruction Amendments were intended to insure that Black people had a full range of rights, just like White people. Section 5 gives Congress the power to enact laws to secure that right. So at the very least, the Reconstruction Amendments change the relations between state and US governments enough to permit the US to protect the rights of Black people. It’s hard to imagine clearer language, and Miller doesn’t even hint at one.

Furthermore, by the time of The Slaughterhouse Cases Congress had enacted two civil rights laws and three enforcement acts. This effectively is a declaration of Congress’ understanding of its power, and that of the President. Miller ignores the views of the other two branches. Only the opinion of five members of the Supreme Court counts. The Supreme Court is the unelected final authority in our democracy.

So, we have three points from The Slaughterhouse Cases:

1. If the Supreme Court majority wants to issue a ruling in a case, it will do so, regardless of precedents it might have established.

2. If Congress wants to accomplish a major change in our government it must figure out some language that even the Supreme Court is afraid to reject, but likely that’s impossible.

3. SCOTUS is supreme; it ignores the other two branches if it chooses.

Biden v. Nebraska

Majority Opinion. John Roberts’ majority opinion addresses the standing of the Appellants. Most of them don’t have standing, but no matter, because Roberts asserts that Missouri does and one is plenty. The basis for Missouri’s standing is that it had created MOHELA, an independent nonprofit governmental corporation, which owns and services student loans. MOHELA refused to participate in the lawsuit (I wonder why) but the Missouri AG claims that Missouri can sue in its place. He says MOHELA would lose an estimated $44 million in fees for loan servicing. None of that would ever go to Missouri, ever, but so what?

Roberts and the Fox News Six say MOHELA is an “instrumentality” of Missouri, the instrumentality might lose money which is an injury sufficient for standing, and that’s good enough. What he means is that standing is available because he wants to rule on the merits. Just like in The Slaughterhouse Cases.

In her dissent Elena Kagan explains that standing rules arise from the Constitutional requirement that SCOTUS only has jurisdiction of actual controversies. If a plaintiff isn’t injured, there is no standing.

It still contravenes a bedrock principle of standing law—that a plaintiff cannot ride on someone else’s injury. Missouri is doing just that in relying on injuries to the Missouri Higher Education Loan Authority (MOHELA), a legally and financially independent public corporation. And that means the Court, by deciding this case, exercises authority it does not have.

On the merits, Roberts addresses the statutory power granted to the executive branch to waive or modify any provision of the student loan program in the event of a national emergency. He explains that “waive” doesn’t mean waive, and that “modify” doesn’t mean modify, if the change is big. A lot of money is a big change. He doesn’t even hint at the words Congress should have used to get its way.

He says his opinion is supported by what he grandiosely calls the Major Questions Doctrine, because there’s a lot of money at stake. I call it the Major Questions Metadoctrine, or MQM, for reasons that will appear.

Barrett’s Concurrence. Amy Coney Barret, who clerked for the odious Antonin Scalia, styles herself a textualist. She wants us to know that the MQM is very good, so she writes a concurring opinion. Most of is is technical legal stuff about canons of interpretation. Two points are worth mentioning.

1. Barrett cites a 2010 law journal article by John f. Manning, a Harvard Law professor: Clear Statement Rules and the Constitution. You don’t have to read past the abstract to find out what Manning thinks:

This Essay argues that such clear statement rules rest on the mistaken premise that the Constitution contains freestanding values that can be meaningfully identified and enforced apart from the specific terms of the clauses from which the Court derives them.

Barrett ignores this point entirely. The MQM is supposed to be a clear statement rule. There are a number of these, mostly directed to structural constitutional issues like federalism. The Slaughterhouse Cases could be seen as an application of a clear statement rule, if it weren’t so obviously unnecessary and wrong.

In Biden v. Nebraska the MQM is applied to enforce Congressional control over the purse. But as Barrett herself shows, that isn’t in the Constitution. In her view, this purpose is an emanation from the Appropriations Clause. The power of the purse is a judicial trope, already once removed from the text of the Constitution. The MQM is a further step from the Constitution. Thus, a metadoctrine.

2. Barrett offers a hypothetical to explain her view.

Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction?

This is a laughable hypothetical. The Biden Administration didn’t just decide for funsies to reduce student debt. There was an economic catastrophe caused by a pandemic that killed a million Americans and sickened tens of millions.

The correct hypothetical is not a trip to a theme park, but a trip to the emergency room paid with the credit card.

This is shoddy work, but it’s all we an expect from rigid ideologues. It’s also an ugly parallel with the Reconstruction Era Supreme Court.

Conclusion

The parallels to The Slaughterhouse Cases are, I hope, obvious.

1. SCOTUS will ignore every restriction on its use of power if five members want to.

2. There is no statutory language clear enough if five (or more) members of SCOTUS don’t like the policy.

3. SCOTUS is very supreme.

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SCOTUS Takeover Continues

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SCOTUS released opinions in three big cases, the affirmative action case, the student loan forgiveness case, and the anti-LGBT case. I haven’t had time to read them carefully, but it’s clear that they suck. The only bright spot is the emergence of Justice Ketanji Brown Jackson. I can offer some intitial impressions.

1. We now know that the 14th Amendment has an expiration date, at least as far as Black people are concerned. I wish the majority would tell us the date they ended racism so we could have a new holiday.

2. The major questions “doctrine” has a corollary: if enough money is involved, you can make up your own standing requirement. None of the plaintiffs in the student loan case could show injury. The majority says that Missouri has standing because Mohela is an instrumentality of the state. Mohela has the power to sue and be sued, but it refused to sue. I’m just sure the majority offers a not-gibberish explanation.

3. If a plaintiff is trying to inflict damage on the LGBT community they don’t need to show standing.

4. None of the plaintiffs in the affirmative action case could show injury, nor could they show a remedy that would help them. But they all have standing.

5. Standing is a meaningless concept.

Most important, John Roberts has a message for you in Bien v. Nebraska at 25-6:

It has become a disturbing feature of some recent opinions to criticize the decisions whith which they disagree as going beyond the proper role of the judiciary. Today we have concluded that an instrumentality created by Missouri, governed by Missouri, and answerable to Missouri is indeed part of Missouri; that the words “waive or modify” do not mean “completely rewrite”; and that our precedent — old and new — requires that Congress speak clearly before a Department Secretary can unilaterally alter large sections of the American economy. We have employed the traditional tools of judicial decisionmaking in doing so. Reasonable minds may disagree with our analysis — in fact, at least three do. See post, p. ___ *KAGAN, J. , dissenting). We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.

So once again, I remind you: you mustn’t criticize SCOTUS by pointing out it’s a corrupt power-grabbing rabble intent on imposing their minority views. Also, you mustn’t point out that they make stuff up to do so, or that theyrecognize no constraints on their power. At all times we must remember that theirs is a holy calling without which our great nation would collapse in disorder and chaos.

This is an open thread.

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