Margot Cleveland Goes Yard On The SCOTUS

This morning Margot Cleveland combines a close analysis of the SCOTUS anti-order in the Texas Election Hoax case with a bit of Big Picture perspective. The entire article is worth reading, but as usual I'll excerpt some particularly telling passages:

The Supreme Court’s Rejection Of Texas’s Election Lawsuit Failed The Constitution

It is hard to believe the justices put the constitutional question above their desire to avoid appearing to meddle in the 2020 election.

Cleveland's basic critique of the brief anti-order is that it amounted to a straw man argument--which is why I refer to it as an "anti-order." Most of the justices are intelligent people, so we are entitled to presume that they read and understood what Texas had to say in its complaint and supporting brief. That the SCOTUS' anti-order instead chose to present a caricature of what Texas was saying--what Cleveland refers to as their "framing" of the issue"--speaks to the real motivation behind the anti-order: to sidestep (my word) the tough issues presented by an Election Hoax, especially one of this magnitude.

In what I take to be the meat of Cleveland's argument, she first presents the key to the anti-order:

The Texas GOP Speaks

The speaking was done through a brief statement by the GOP state chairman, Allen West. I like his statement because it highlights the disgrace of the SCOTUS summarily refusing to give a hearing to the concerns of a substantial portion of the nation about the fundamental state of our constitutional order. By this disgraceful refusal to even listen to these concerns the SCOTUS has delegitimized itself and the Constitution itself. If the SCOTUS refuses respectful requests for remedies to clearly unconstitutional actions involving presidential actions, while opining about frivolous non-constitutional matters like "gender identity," this republic has a bleak future:

Austin, TX, Release: December 11, 2020. For Immediate Release

Below is Chairman Allen West’s statement regarding the decision by the Supreme Court to dismiss Texas’ constitutionally legitimate and critical lawsuit.

“The Supreme Court, in tossing the Texas lawsuit that was joined by seventeen states and 106 US congressman, has decreed that a state can take unconstitutional actions and violate its own election law. Resulting in damaging effects on other states that abide by the law, while the guilty state suffers no consequences. This decision establishes a precedent that says states can violate the US constitution and not be held accountable. This decision will have far-reaching ramifications for the future of our constitutional republic. Perhaps law-abiding states should bond together and form a Union of states that will abide by the constitution.”

The Texas GOP will always stand for the Constitution and for the rule of law even while others don’t.

@realDonaldTrump also spoke last night:

“We’ve not gotten any court to judge this (the vote) on its merit.” @DanPatrick of Texas. It is a legal disgrace, an embarrassment to the USA!!!

So, you’re the President of the United States, and you just went through an election where you got more votes than any sitting President in history, by far - and purportedly lost. You can’t get “standing” before the Supreme Court, so you “intervene” with wonderful states that, after careful study and consideration, think you got “screwed”, something which will hurt them also. Many others likewise join the suit but, within a flash, it is thrown out and gone, without even looking at the many reasons it was brought. A Rigged Election, fight on!

The Supreme Court really let us down. No Wisdom, No Courage!

I WON THE ELECTION IN A LANDSLIDE, but remember, I only think in terms of legal votes, not all of the fake voters and fraud that miraculously floated in from everywhere! What a disgrace!

The Meaning Of The Alito/Thomas "Statement"

Commenter Cassander has complained that Justices Alito and Thomas were "unclear" in their "statement" (their descriptive) regarding Texas' attempt to bring a case against four named States before the SCOTUS. Commenter Andy S. maintains that Alito's and Thomas' "statement" is not a "dissent".

To take the latter first, the "statement" of Alito and Thomas is simply a dissent by another name. The two justices plainly state that they disagree with the result--denial of "leave to file a bill of complaint". They would have granted leave to file the complaint. In expressing this disagreement Alito cites Thomas' dissent in a case from February, 2020, for the principle on which their disagreement stands: The SCOTUS has no discretion to decline suits of original jurisdiction, such as the Texas case.

That's a dissent--labeled as a "statement."

As to the carefully worded statement of what they would have done, Alito and Thomas simply state that they would have allowed leave to Texas to file the complaint. However, behind that seemingly simple statement there would have been clearly foreseeable legal consequences. What that concretely would have meant is that once that leave was granted there would have been a series of motions, beginning with a motion to dismiss the complaint for failure to comply with requirements of the Federal Rules of Civil Procedure, specifically, Rule 8. That would have required the SCOTUS to provide specific and expanded reasoning for dismissing Texas' complaint--something I suspect that the other justices did not want to do.

Here's what I mean. It's necessary to understand that modern complaints need only be very short statements, consisting of a bare minimum of specified elements:

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.

VERY BRIEFLY NOTED: Ted Cruz Says Yes

Senator Cruz has agreed, at the request of President Trump, to present the Texas case to the SCOTUS. Remember yesterday, when Andy McCarthy thought it was significant that the TX solicitor general didn't sign the TX complaint--the state's solicitor general being the official who would normally argue TX cases before the SCOTUS? The significance of that was never what McCarthy thought, and may well be that this scenario--with Ted Cruz presenting the case--was baked in quite some time ago.

Of course, Cruz is highly qualified to take that role on. It's not just that he's a senator from this hugely important state and has previously sought the presidency. In his previous life he has argued cases before the SCOTUS and has a 5-4 record. His will be a voice that the justices will be familiar with and, certainly from a legal perspective, will respect. He's Establishment of the Bush Tribe--and if you don't believe me, check out not only Ted's own career but that of his wife Heidi.

Add to that the fact that Cruz knows John Roberts well. It was Cruz who recruited Roberts to the Bush legal team before Roberts' elevation to the SCOTUS. Perhaps Cruz, the DC political and legal insider who sits on the Judiciary Committee, will have some insights into Roberts in Roberts' moment of crisis.

Then there's this, from Don Surber: "The Cruz 2024 campaign is off to a good start."

A Total Of 18 States Have Joined Texas' Lawsuit

Thanks to commenters Cassander, Kirk, and Michael for the material below.

I'm including Texas in the total number of 18. Texas' complaint can be found here. 

Missouri has filed an amicus curiae brief in support of Texas' complaint, and was joined by 16 other states: Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia.

The conclusion of the Texas complaint states, in part:

Although this Court’s original jurisdiction precedents would justify the Court's hearing this matter under the Court’s discretion, ..., Plaintiff State respectfully submits that the Court’s review is not discretionary. To the contrary, the plain text of § 1251(a) provides exclusive  jurisdiction, not discretionary jurisdiction.

[(a)The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States. 28 USC 1251(a)]

...

The issues presented here are neither fact-bound nor complex, and their vital importance urgently needs a resolution. Plaintiff State will move this Courtfor expedited consideration but also suggest that this case is a prime candidate for summary disposition because the material facts namely, that the COVID-19 pandemic prompted non-legislative actors to unlawfully modify Defendant States’ election laws,and carry out an election in violation of basic voter integrity statutes are not in serious dispute. ... This case presents a pure and straightforward question of law that requires neither finding additional facts nor briefing beyond the threshold issues presented here.

CONCLUSION

Leave to file the Bill of Complaint should be granted.

Here's the conclusion of the amicus brief:

The allegations in the Bill of Complaint raise important constitutional issues under the Electors Clause of Article II, § 1. They also raise serious concerns relating to election integrity and public confidence in elections. These are questions of great public importance that warrant this Court’s attention. The Court should grant the Plaintiff’s Motion for Leave to File Bill of Complaint.

 

I find these arguments compelling. I can't conceive of any reason for the SCOTUS to refuse to hear the case. Especially when the case is supported by 18 states, led by Texas.

UPDATE: I hear we're up to 22 states now.

Texas Sues: Looks Like A Game Changer

First--I'll be away from the blog for about three hours, starting in one hour. Comments will be enabled upon return.

The Texas lawsuit looks like it could be a real game changer--legally, of course, but perhaps most importantly, politically. We've always spoken of the lawlessness of the Dems in the conduct of elections, but when things reach this point the issue is political, in the big picture sense of the word: It's really about our constitutional order, and that's why Texas is alleging violations of the US Constitution--the compact and the glue that holds this country together.

First and foremost, this lawsuit brings all four of the named states--as well as Texas--before the SCOTUS. Immediately. My reading of this is that the elections in these states cannot be certified or, alternatively, any certification should be held to be without effect (a bit more below).

Breitbart has a good account of the lawsuit, which is very straightforward in its essentials. The lawsuit alleges that four states (PA, MI, GA, WI) and certain counties within those states violated the US Constitution in two respects in their conduct of the presidential election.

First, they violated the Electors Clause of Article II of the Constitution when executive or judicial officials in the states changed the rules of the election without going through the state legislatures. The Electors Clause requires that each State “shall appoint” its presidential electors “in such Manner as the Legislature thereof may direct.”

Here's the text of Article II (in relevant part):

Article II, Section 1: Elections 

The executive Power shall be vested in a President of the United States of America.

He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

...

This is exactly the provision that the feckless John Roberts--in the 4-4 pre-Justice Amy SCOTUS--tried to sidestep, by saying that what the PA Supreme Court did with regard to federal elections held in PA was no concern of the SCOTUS. Texas is telling Roberts and every other justice on the SCOTUS that what the corrupt political machines within portions of these four states have done to the Constitution IS TEXAS' CONCERN. And that means that it better become the SCOTUS' concern, too, because Texas doesn't stand alone in this.

If states are allowed to alter the rules set by the US Constitution, then the US Constitution has become a dead letter. That's the subtext to this allegation, and the SCOTUS cannot be unaware of that.