Briefly Noted: DoD v. CIA, Constitutional Considerations re Texas' Lawsuit

We'll start with a story from yesterday, in its ABC version:

Pentagon weighs cutting most of its support to CIA's counterterrorism missions

CIA counterterrorism missions rely on military for logistical support, personnel

The basics are short and sweet:

In a surprising move, the Pentagon has told the Central Intelligence Agency that it is weighing an end to the majority of the military support it provides to the agency's counterterrorism missions, according to a former senior administration intelligence official.

It is unclear how the decision would impact the spy agency's worldwide counterterrorism missions that often rely on the U.S. military for logistical support and personnel.

Later in the article we learn that the withdrawal of 700 Special Forces personnel from Somalia is directly related to this proposed move:

Last week, a CIA paramilitary officer was killed in Somalia, according to Gen. Mark Milley, the chairman of the Joint Chiefs of Staff, who disclosed in remarks to a think tank that the deceased CIA officer had previously served in the military as a Navy SEAL.

The Pentagon announced last week that President Donald Trump had ordered the withdrawal of most of the 700 U.S. military personnel in Somalia, though it said it would continue to carry out counterterrorism missions against al-Shabab, the al-Qaida affiliate.

Read it all. My guess is that this may have to do with CIA essentially making foreign policy and then wagging the DoD dog. No doubt there are pro-CIA factions within DoD, too, and that may also play into the recent personnel moves at the top of DoD. Trump is seeking control over policy making--let's hope he'll be around to follow this up. Lots to unpack there.

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Two items outline interesting aspects of Texas's election case that is now before the SCOTUS.. James DeLong at AmThinker has a brief blog that discusses a matter that has shown up repeatedly in comments here--the Guarantee Clause of the US Constitution:

A little known clause of the Constitution has a huge bearing on the Texas election lawsuit

For reference, here's the actual text of Article IV, Section 4:

The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

What, you ask, is a "republican form of government"? DeLong quotes a passage from the amicus brief filed by ID, AK, and AZ--which cites a 1947 case from TX:

It is a fundamental idea in all republican forms of government that no one can be declared elected * * *, unless he * * * receives a majority or a plurality of the legal votes cast in the election.

Oh! That seems very relevant. The amicus brief goes on to state:

An elite group of sitting Democrat officers in each of the Defendant States coordinated with the Democrat party to illegally and unconstitutionally change the rules established by the Legislatures in the Defendant States, thereby depriving the people of their states a free and fair election — the very basis of a republican form of government.

The Guarantee Clause places an obligation upon the United States to ensure that such an unlawful election not be carried to fruition.  This Court is the sole forum available for the enforcement of that obligation under the circumstances faced by the nation today[.]

Now ask yourself: Who is "the United States"? Well, of course that would be the Federal government, which consists of three branches. Currently this election controversy is before the highest court of the Judicial Branch. In a very powerful way this brief is presenting an fundamental issue to the SCOTUS: Does the Constitution still hold good? Do you justices uphold the Constitution or not? If the basis of our union is a union of federated states that share the common basis of a republican form of government, can the the SCOTUS fail to act when a party cabal overthrows the "fundamental idea in all republican forms of government"? The SCOTUS, can't dodge that one. They can try, but they'll fool no one.

The other implied issue--implied in the notion that "the United States shall guarantee to every state in this union a republican form of government"--is this. The executive power of "the United States" is vested in the President. Not a committee, not in the Legislative or Judicial branches. Congress passes laws, the Judiciary interprets laws, but in the real world a nation must also act--not just make statements. That is the executive power, and Donald Trump is the constitutional officer who exercises the executive power to act--which is what is meant by a Unitary Executive: the executive power is vested in the person of the president, who is Donald J. Trump. And so the Constitution specifies that:

The President shall be commander in chief of the Army and Navy of the United States ... he shall take care that the laws be faithfully executed.

I take it that the Constitution is the fundamental law of the land and that the President must take care that it shall be faithfully executed. This means that the very nature of our Union is at stake in this case, and that President Trump has joined the case before the SCOTUS, not as a political actor, but as the Constitutional officer in whom the executive power to uphold the Constitution is vested.

Will the SCOTUS dare to suggest that the federal government, charged with guaranteeing republican forms of government to each and every state, has no interest in the fair conduct of federal elections? Systematic and intentional disenfranchisement cannot be ignored if we are to take the Constitution seriously. That's the question before the SCOTUS.

Moving on ...

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Shipwreckedcrew weighs in on the issue of original juridsiction--disputes between states. The way his article relates to the foregoing is this: There are at least two justices currently on the SCOTUS who are on record as considering that the SCOTUS has no business attempting to evade its responsibility to decide disputes between or among the states by claiming that the Court's jurisdiction is "discretionary". Those two are Clarence Thomas and Samuel Alito. Those two were on the short end of a 7-2 decision just four short years ago.

When that decision came down the overwhelming majority of seven included: Roberts, Scalia, Kennedy, Breyer, Ginsburg, Kagan, and Sotomayor.

The SCOTUS is a very different place now--at least that's my hopeful way of viewing things. In place of Scalia, Kennedy, and Ginsburg we now have Gorsuch, Kavanaugh, and Barrett. You can read all about Thomas' (and Alito's) views on the proper exercise of original jurisdiction in the article:

Two Supreme Court Justices Are of the View the Court MUST Hear Cases Involving Disputes Between States -- Are There Three Others?

SWC concludes by suggesting that these considerations of jurisdiction are what lie behind Alito's decision to drop the PA motion (but not the case) and then, the same day, take up the TX case:

In my opinion, there is simply no question that the Texas lawsuit is the result of discussion among this segment of the legal and judicial community who were well aware of the views of the Justices on this question. It would be my suspicion that there is also some “insider” knowledge about where Justices Gorsuch, Kavanaugh, and Barrett might stand as well.

Rather than being a “review” of lower court proceedings with poor records, or less than ideally developed evidentiary presentations, the advantage of this proceeding is that it is not burdened by the deficiencies in lower courts, nor is it bound by traditional limitations on the “scope of review” — the types of questions the Court can examine and the bases upon which it might overturn lower courts’ decisions. It hears evidence in the first instance, and decides questions on legal and factual issues for itself.

The Texas Complaint is not slapped together.  It is the result of extensive research and drafting. It was likely a work-in-progress for weeks, and I do not believe that work would have been undertaken on a lark as a political stunt.

Those on both sides of this partisan issue who are dismissing the Complaint as an unserious effort are failing to consider what I believe to be a crucial consideration in whether or not to allow Texas — and the other 18 states who have now joined — to “have their day in court.”

There is only one forum where Texas can present what it believes is evidence supporting the allegations it makes in the Complaint against the four defendant States. Only one tribunal has the authority to hear and consider witnesses and documentary evidence of this dispute.

To put it the way that Texas itself frames the matter, this case is one of pure Constitutional issues. The SCOTUS, therefore, is not limited in any way by what has happened in the lower courts--the case comes directly to the SCOTUS and the SCOTUS can review all matters that the Complaint raises.