Late Friday night, the Supreme Court of the United States slapped the state of Texas and around 17 other states across the face with a large, dead fish. The Supremes claimed that Texas did not have “standing” (a direct injury) to support its demand that the Constitution be followed in the election for U.S. president.
So, the Supreme Court dismissed the lawsuit by Texas by a 7-2 margin, stating:
“The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”
But was that the question? Or is that a dishonest caricature of the question? Did Texas ask the Supreme Court to dictate the “manner in which another State conducts its elections”? Or did the U.S. Constitution already mandate in Article II, Section 1, what all states must do?
My friend Norm Bradford often says, “You got the right answer to the wrong question.” The Supreme Court dishonestly misrepresented the Texas lawsuit. Texas asked to have all states follow the Constitution uniformly.
With their dismissal, the Supremes threw all future elections into doubt. This will go down as destructive as the Dred Scott decision that spurred us into the Civil War.
Unfortunately, yes, it was always this bad. The political world just did a better job in the past of concealing the decay and dishonesty behind the curtains. A gullible public, hoping it could trust in the United States as a shining example of good and democracy, didn’t ask too many questions.
The abuse of standing to pick and choose which lawsuits are favored has been discredited and exposed for many decades. Few things the Supreme Court has done in the last century will be as important as the Texas lawsuit just dismissed. The vast majority of cases the high court takes are obscure and relatively unimportant.
Standing is not mentioned in the Constitution nor in any legislation governing the federal courts. The Constitution authorizes federal courts to decide “all cases, in Law and Equity, arising under this U.S. Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” [Article III, Section 2, of the Constitution (emphasis added).] Article III, Section 2, refers to “controversies” but only for diversity cases that are not brought under federal or constitutional laws.
The U.S. Supreme Court conjured “standing” out of thin air, talking about a case and controversy – not case or controversy. They invented inconsistent, self-contradictory and illogical “rules.” That’s yet another way they can pick and choose policy outcomes while pretending to follow objective standards.
One of the big questions has been, can the courts provide a remedy to an obviously unconstitutional and illegal election? Could the high court issue an order that would fix some or all of the problems?
Well, that question didn’t bother the Supreme Court in Massachusetts v. EPA, 549 U.S. 497, 516–26 (2007). Massachusetts sued the EPA over global warming. Every single “rule” of standing was massively, grotesquely violated.
The EPA was not causing the oceans to rise, yet it was the defendant. Massachusetts did not sue any polluting industries. U.S. industry was not the only or primary source of carbon dioxide in the world – so how could the justices order a remedy against the EPA that would stop the oceans from rising?
In the Texas case, if the justices followed consistency and logic, they could have ordered that ballots received in violation of state law established by the state legislature are invalid, actually unconstitutional, and cannot be included in the tabulation of legitimate votes. That is, the Supreme Court could merely order that only the state legislature has the microphone and everyone else in the state must sit down and zip it.
No one has done a better job than Judge Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit, in politely criticizing the chaos that has been created. Although much more diplomatic than I am, Rogers’ dissent in Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015), roasted the unsound mishmash of the majority opinion.
I wrote Sheriff Joe Arpaio’s Petition for Writ of Certiorari appealing to the Supreme Court, and I wrote Arpaio’s Friend of the Court brief in support of Texas, with the direction, review and signature of attorney Larry Klayman. Arpaio documented how law enforcement personnel were arresting the same illegal aliens again and again for different state law crimes. That directly increased costs to his office and risks to his deputies.
Large parts of the briefs I wrote quoted from Judge Janice Rogers Brown’s dissent. How could you not, when a Court of Appeals judge has made your case for you?
In the Massachusetts case, the state stacked speculation upon speculation to “imagineer” (a Disney term) that perhaps Massachusetts might lose coast line 100 years in the future. Good enough if you’re a liberal.
“Standing” games by the Supreme Court include challenging whether the harm is speculative, based on assumptions, or certain to occur. In Massachusetts, the Supremes said, “EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both ‘actual’ and ‘imminent.’ …”
“A risk of harm.” It might happen. If this happens, then that happens, then that happens, there might be a risk. A mere “risk” is standing enough if you are a liberal.
Courts dismiss conservative lawsuits because there just might be some countervailing benefits. For example, opponents of illegal immigration lose because there might be – speculatively – economic benefits from illegal immigration.
Yet, if there were global warming, the value to Massachusetts of warmer beaches would greatly exceed the trivial loss of an inch or two of coastline. Nobody in his right mind wants to go swimming off a freezing Massachusetts beach. But inconsistent standards are applied.
Donald Trump’s presidency and his campaign have ripped the mask off. Those desperately trying to hide behind the curtain lied, of course, to say it is only about Trump. Now, the insurgency has grown so strong that the deep state had to come out of the shadows and showed themselves in full view of the American people in order to counter Trump as the figurehead.
President Trump has fundamentally changed the entire political landscape because the hidden armies had to come out of the forest and engage in open warfare on the open plains in full view of the public. They lost their invisibility as the cost of attacking Trump. We must make sure they are not able to shrink back into the shadows, but keep fighting.
Note: The legal world will deceitfully try to argue that the word “corrupt” means accusing someone of taking an envelope of cash. That is not what we are talking about. “Corrupt” also means bent and distorted from a thing’s intended purpose, as in the corruption from decay.
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