Mealy-Mouth Brnovich Saved by the Bell

 

I was going to file this Monday.  AG Brnovich doesn't know it, but he was saved by the bell.

Media reports list Arizona as one of the states entering the suit on the side of Texas, but that's not accurate. Arizona, through Brnovich, moved tor leave to file an amicus brief, but made it clear its brief would essentially say nothing. I don't know how many more of the "18 other states" made or proposed similar filings.

Of the two main reasons for the US Supreme Court to refuse to touch the case, Plaintiff Texas' lack of standing and non-justiciability under the political question doctrine, I believe the latter would have been the better choice.

No. 22 O 155

In The

Supreme Court of the United States

_________________

STATE OF TEXAS,

Plaintiff,

v.

COMMONWEALTH OF PENNSYLVANIA, ET AL.,

Defendants.

_________________

On Motion for Leave to File a Bill of Complaint and Motion for Injunctive Relief, etc.

MOTION FOR LEAVE TO FILE BRIEF
of Brian K. Stanley as Amicus Curiae

 

Motion for Leave to File Brief as Amicus Curiae

Pursuant to Supreme Court Rule 37.2(b), the attorney undersigned respectfully moves for leave to file the accompanying brief as amici curiae. Because of the emergency nature of this action, the proposed amicus has been unable to secure the consent of the parties.

This proposed amicus is an Arizona citizen who is embarrassed by the state’s Motion for Leave to File an Amicus Brief.  It is difficult to understand the motivation behind this mealy-mouthed, neither-for-nor-against doc­ument, unless it is to enable Attorney General Brnovich to tell a fractious and illiterate portion of the populace that he sure has joined in on that Texas “big show” lawsuit without incurring too much professional embarrassment.

Arizona says that its proposed brief would argue that (1.) “election integrity is of paramount importance” and (2.) “if this Court exercises jurisdiction over Texas’s complaint, it is equally important that the Court act quickly.”

“Argument” 1 is merely an unhelpful platitude.  Argument 2 also states an incontrovertible proposition while providing no direct assistance to the Court.  Arizona ought to have pursued this point further:  (A.) If the Court were to take jurisdiction of Texas’ proposed action, it would be critically important to the life of the Nation that such action be resolved very quickly.  (B.) Texas’ proposed action, if entertained by the Court, could not be resolved quickly.  Therefore (C.) It is critically important to the life of the Nation that the Court decline to take jurisdiction of Texas’ proposed action.

Arizona could make this argument without com­promising its traditional position that the Court’s original jurisdiction of actions between states is non-discretionary simply by recognizing that under the established “political question” doctrine Texas’ proposed complaint is non-justiciable ab initio.  The point is well made in Part II, pp. 12 – 16 of Georgia’s opposition memorandum.  Arizona would make a helpful contribution by simply joining in this part of Georgia’s opposition.

Arizona could go further and amplify the political question argument:

A controversy is nonjusticiable – i. e., involves a political question – where there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it … .”

Baker v. Carr, 369 U. S. 186, 217 (1962).

Article II, § 1 of the Constitution and the XII^th Amendment demonstrate textually the commitment of Presidential elections to the state legislatures, the electoral college and Congress, each of which must be recognized, for Presidential election purposes, as a “coordinate political department.”  But now the second alter­native limb of the political question test is equally if not more important.  The lack of judicially discoverable and manage­able standards for resolving Texas’ proposed complaint would alone be sufficient reason for refusing to entertain it.  Even a cursory review of Texas’ lengthy and multifarious complaint will convince the reader with any experience of legal procedures that it is a roadmap for years or decades of litigation.

Some tortuous legal problems are presented, such as drawing a boundary between permissible administrative regulation and practice and impermissible executive revision of legislatively imposed requirements (as well as distinguishing between actions election administrators are required to perform and actions they are permitted to perform).  E.g., Proposed Complaint ¶¶ 62, 63.  While such questions were argued and briefed to, then decided by, a special master,[1] the master’s report considered by the Court and the Court’s opinion(s) drafted, who would have his finger on the nuclear launch button?

But the serious legal issues raised by the Proposed Complaint[2] are discernable and manageable through judicial child’s play compared with some of the potential fact issues.  Such abstruse expert questions as underlie Texas’ “quadrillion to one” statistical claim (¶ 10) would be bad enough.  But the really fact-intensive issues, such as whether exclusion of unsigned mail-in ballots would affect the outcome in Pennsylvania (¶¶ 41 – 46) or whether the “premature removal of ballots from their locked containers” in that state (¶51) affected any votes at all, are clearly unmanage­able within any realistic allocation of judicial resources or acceptable period of time.

Further, entertainment of Texas’ suit would invite countersuits by the states that president-elect Biden carried, who would naturally and rightly want recounts in other states to see if Trump would have won the states in his column if mail-in ballots were excluded.  Taking juris­diction of Texas’ complaint might not destroy the Nation, but it would certainly destroy the Court.

Arizona says it wants to argue that if the Court accepts jurisdiction it will be vitally important that it resolve the action quickly.  It ought to have looked more seriously at the Proposed Complaint and recognized that Texas’ complaint could not, within any tolerable period of time, be resolved in any judicially respectable fashion, and it should have drawn the conclusion that the established political question doctrine must be applied to rule this controversy non-justiciable.

December 14, 2020.        Respectfully submitted,

                                      /s/Brian K. Stanley
                                       Brian K. Stanley
                                      1938 E. Osborn Rd.
                                      Phoenix, Arizona 85016
                                      602-956-9201
                                      court@brianstanleylaw.com
                              

---

[1].       The alternative to the usual referral-to and report-by special master procedure, i.e., original trial proceedings before a nine-judge court, is unthinkable.  Imagine votes, majority opinions, dissenting and concurring opinions, on every procedural motion and evidentiary objection.

[2].       Most of them are decidedly non-serious, such as the argument that state authorities violated election laws by informing the public about the option to apply for a mail-in ballot.  Proposed Complaint ¶¶ 81 and 82.

The Trump Show: Next Episodes

     There is the possibility that Trump is not just deeply neurotic but either has long been or has recently become psychotic.  In that event, his egomaniacal delusion could well lead him to summon violent resistance to his removal.  While such resistance would have very little chance of being successful, however unsuccessful it might be it would have enormously detrimental effects on America’s economy, institutions and prestige.  But I think it’s more likely that Trump will be dissuaded from taking such a risk.

Trump knows that crowds of prosecutors and creditors will be at his heels the moment he relinquishes the Presidency.  He will need money urgently, and the only way he has made money in the past was as a reality-TV performer.  He will try to reproduce that success, but the fantasy biz-world format of his old show won’t work for him any longer.  He has to exploit his political following,  and he can do that only through some sort of alternative-news offering.

The Fox News network has already betrayed him unforgivably (that’s a low bar with Trump).  Newsmax might provide a viable medium, but it will find DJT a prickly partner.  They’ll both be in it for the money, and there won’t be enough to go around.  Major advertisers will not be rushing to sign up.

Creation of a subscription streaming service would require more creativity than the Trump family can command, and anyway Trump’s core constituency will not be coughing up, at least not for long.  If TrumpStream were launched,  it would be well advised to require subscribers to sign two- or three-year contracts.  Then Trump would be way ahead if he could get Deutsche Bank to take an assignment of the contracts in satisfaction of his debt – only that would leave him without a desperately needed income stream.

Come 1/20/2021, Trump’s Twitter account will lose its special head-of-government treatment.  For a time Trump might profit from his “persecution” at the hands of Twitter, but will he be foolish enough to court expulsion from the medium?  TrumpTwitter could only be created with talent and capital that are not at his disposal, but if the investment were made, what would be its burn rate, and for how long would there really be interest?

Anyway, TrumpChannel, cable or streamed, is going to be Trump’s only possible financial lifeline.  (I’m predicting any economic collaboration between Trump and Newsmax, or some even-farther-out media splinter, will be extremely short-lived.  Who – even under less Trump-trying circumstances – has been a business partner of DJT’s and lived to tell the tale, or even been a Trump lender, vendor or customer at other than considerable loss?)  And he must keep his audience stoked up to support the product launch.

Of course the “I wuz robbed” fantasy is essential to that stoking.   Hence, to the extent DJT controls what comes out of the Administration there will be no concession, no cooperation and no letup in the whining.  Right through January 19 the True Believers will keep being riveted by the remarks of Rudy Giuliani even as he moves on from blaming Hugo Chavez to unmasking the role of V.I. Lenin.  (Or will Rudy’s targets be limited to dead non-Russian Marxists? Is Putin’s blackmail that strong?)

If Trump were really a shrewd businessman or a talented media impresario, he would recognize that TrumpChannel has to launch on or before Inauguration Day.  But that would mean that a serious business/creative effort would have to have begun two weeks ago, and there’s no sign of one yet.

Idle Correspondence

Phoenix, 4/23/20

Dear Goldwater Institute Attorneys:

You need to pick your battles, of course.

I expect most of the requests with which you have been inundated are seeking a naïve “personal freedom” attack on state action which, viewed constitutionally and assuming power is exercised within an appropriate statutory framework and without violating the separation of powers, would fall squarely in the heart of the traditional police powers of the sovereign. Such an attack should fail. A better approach would be to focus on the stay-at-home order as lying beyond the scope of authority granted to DHS and the governor under Ch. 6, Art. 9 of A.R.S. Title 36, A.R.S. §§ 36-781 through 790.  Authority to “isolate and quarantine persons” is plainly distinguishable from purported authority to impose restrictions (which amount to neither isolation nor quarantine) on the populace as a whole – especially since a decree of the latter type is irreconcilable with the [due process] requirements of A.R.S. § 36-789.

The best posture would be that of defending someone against whom a governmental authority is seeking to enforce the stay-at-home order, but I think the governor and co. are fighting shy of undertaking any such effort. Fortunately, a declaratory judgment action against the governor should work, too. I’m sure you wouldn’t have any problem finding a plaintiff or two. Victory in one such action is all that would be needed, and I expect it would substantially boost the Institute’s standing with a certain segment of the public.

(The governor would have been on firmer ground trying to get the county health departments to impose “sanitary measures” under A.R.S. § 36-624.)

If you get any requests from landlords whom the governor’s decree has deprived of the enjoyment of their property – has robbed, in other words, of the pursuit of happiness – would it be possible for you to give them my contact information?

Regards,

Brian K. Stanley

Post Scriptum, 4/29/20: In my opinion, the lawsuit I have suggested would be a "slam dunk," though perhaps not 'till pushed to the level of our intermediate appellate court. To the best of my knowledge neither the Goldwater Institute nor any of the other intrepid freedom fighters with whom Arizona is so richly endowed has initiated such an effort. My guess is it's because they're not sure the boost with a certain segment of the public would outweigh the obloquy if their triumph resulted in an obvious surge of COVID-19 cases.

What They Oughta Say

Bernie’s “Plurality Must Win” spiel is eliciting some pretty lame responses from the other Democratic presidential candidates. Heard most often is, “Everybody ought to play by the rules.”  But Sanders isn’t saying that “Candidate with plurality of elected delegates get the nomination” should be an official rule, exactly. He’s saying that for other candidates to bow out in favor of the plurality-winner would be the democratic thing to do.

One not-quite-as-lame counterargument, which so far I’ve heard only from Biden,  is to point out that by this standard 2016 Bernie should have deferred to Hillary long before he did.

But a stronger approach would question the “democratic thing to do” premise itself – something like this:

“Wait a minute.  This isn’t a personal beauty contest. It’s a discussion about the ideas, policies and positions that are now the best for shaping this country’s future.  Let’s suppose as the convention approaches there are two remaining  candidates who want to eliminate all existing private health insurance and three who would strengthen and improve the ACA instead.  And let’s suppose the Medicare-for-all candidates have 30% and 10% of the delegates respectively.  And suppose the strengthen-ACA candidates are 20-20-20.  Does that mean that Medicare-for-all, despite losing 40 to 60, is the democratic choice?”

Renaissance of Free Trade?

Note: This is essentially the comment I posted elsewhere on February 5. Within a week the Trump Administration had rebuffed Britain's trade-agreement overtures, basically telling the UK it would have to go to the end of the line and await the US' conclusion of trade deals with China, the EU and others. So much for the Brexiteers' promise that a trade agreement with the US would be made quickly once the UK's formal withdrawal from the EU had taken place.

In a speech given in the "Painted Hall" of the Old Royal Naval College at Greenwich on February 3, recently appointed British P.M. Boris Johnson proclaimed himself the apostle of free trade. Present through the magic of (almost-) live streaming, I noted some passages which called for comment.

"And since [free-trade theories] were born here in this country, it has been free trade that has done more than any other single economic idea to raise billions out of poverty and incredibly fast. ...

"And yet my friends, I am here to warn you today that this beneficial magic is fading.

"Free trade is being choked and that is no fault of the people, that’s no fault of individual consumers, I am afraid it is the politicians who are failing to lead.

"The mercantilists are everywhere, the protectionists are gaining ground from Brussels to China to Washington. Tariffs are being waved around like cudgels even in debates on foreign policy, where frankly they have no place."

Careful, Boris. Donald Trump doesn't take kindly to criticism of any kind.

"We will not accept any diminution in food, hygiene or animal welfare standards [that the UK applies to all imports]." The Prime Minister apparently has not yet recognized that this is exactly what the Trump Administration will demand before it will make a trade deal with Britain. Has he never heard of "chlorinated chicken," or does he just prefer his poultry that way?

Johnson referred to climate change and the need to reduce CO₂ emissions as "the great environmental issue of our time, perhaps the greatest issue facing humanity." But the Trump Administration has banned even the use of the term "climate change" by federal employees at all levels, and Trump denounces any link between CO2 levels and climatic conditions as a "hoax", perpetrated specifically to impoverish the U.S.

This speech would get Boris tossed out of Trump's Republican Party anywhere in America (if Trump and his minions had the power to expel anyone from the party). It will be fascinating to see how Johnson and Trump get along as the months pass.

My prediction: As 2021 approaches and it becomes clear that the EU will stick by its rules and Brexit (effective, not just nominal) without any deal agreed between Britain and the EU looms, Boris' government will truckle under 100% and accept whatever deal Trump deigns to offer.  It will be far from the simple mutual adoption of free trade Johnson seems to dream about.

The Profitable Martyrdom of Qassim Soleimani

January 4, 2020, 7:45 a.m. Arabian Standard Time

Whatever else might be said about the character of the recently deceased head of the Kuds Force element of the Iranian Revolutionary Guards Corps, it cannot be doubted that he was willing to give his life in the service of what is known in his country as the Islamic Revolution.  To the extent that movement is identified with the policy of the present regime in Teheran, the consequences of his assassination could well be more than adequate reward for what his co-religionists have dubbed martyrdom.

If hard-line elements within the Shiite majority of the Iraqi parliament are able, in the wake of this provocative American act, to compel the Iraqi government to demand the withdrawal of U.S. forces from that country, there will be jubilation in the councils of Supreme Leader Khameni.  Iraq is all that lies between Iran and Saudi Arabia, and an Iraq stripped of Western occupiers and under a Shiite government which is free to express sympathy with Teheran is the Saudi regime’s worst nightmare – and would be even in the absence of powerful Iraqi Shiite paramilitaries more or less openly aligned with Teheran.

That nightmare is all the more troubling to the Saudis in light of the Trump Administration’s underwhelming reactions to various 2019 Iranian maritime provocations in the Gulf and to last September’s attack on the Abqaiq and Khurais oil processing facilities.  Even with more American forces trickling into Iraq, there have recently been signs that Saudi Arabia is seeking détente with Teheran.  Should Western forces be removed from Iraq, Iran would likely be able to secure effective safe passage for its forces through Iraq, and its army of half a million men could seize the Saudi north, where the Shiites and the oil are, within a week.  Even if there is some secret American commitment to defend the Saudi kingdom, Prince Bin Salman is probably too shrewd to place much reliance on it.

In that event, the only question would be to what extent, and at what price, Iran is willing to reach an accommodation with the Saudis.  The result would be a sea-change in power relationships all across the Middle East, a change greatly in Iran’s favor.  Governments and factions by the dozen, resigned to seeing off the Americans, would be seeking accommodation with Iran while assiduously courting Russia.  In fact Turkey’s Erdogan, never one to let grass grow under his feet, is already taking advantage of America’s distraction to move more forces into northern Syria, elbowing in closer to the small U.S. force there, which Trump said he would remove and then didn’t (possibly the most tempting target for Iranian revenge – via surrogates, of course).

It is hard to see what opposition could now plausibly be made to the demand, even before the Soleimani assassination being pressed by the more militant Shiite parties, that the Iraqi government require the U.S. to withdraw its forces.   In our surprise attack on the Baghdad airport we blew up prominent Iraqis along with Soleimani, after all.  Even disregarding the Iraqi fatalities, the government of Iraq would forfeit any claim to sovereignty or independence if it failed to express resentment of this assassination carried out on its soil by foreign armed forces.  The government of Iraq is no government if it will not defend its right to decide who in Iraq is deserving of death.

The Kurds have largely withdrawn into their northern enclave, politically as well as physically, and have recently been given a good lesson about trusting Trump’s America.  The Sunni Arab minority will rightly fear the removal of the only serious counterweight to Iranian influence, but Trump’s action, murdering Shiite Arabs along with the Persian general in flagrant disregard of Iraq’s sovereignty, has deprived it of any argument other than its own fear.  The pro-Iranians will plausibly suggest that, with ISIS gone (according to Trump, anyway), the Americans in Iraq  are the greatest stimulus to sectarian strife there, and Iran and Sistani can afford, and might even mean, the most extravagant promises of intra-Islamic toleration.  By now Sunni leaders must have given up the dream that America will restore their position of dominance, and will surely see how the wind is blowing.

As an intermediate step toward demanding withdrawal of U.S. forces, the parliament might enact an immediate renunciation of the aspects of our status-of-forces agreement that afford extraterritoriality to U.S. service members, followed by the institution of criminal prosecutions against some of them.  This would leave the U.S. no politically viable alternative but to initiate hostilities against Iraq (another occasion of joy in Teheran) or withdraw its forces even without being asked.

The story that our action was defensive because Soleimani was planning attacks on our forces will not even be repeated, except in mockery, by anybody but spokesmen for the Trump Administration.  Soleimani and many others have been laying anti-American plans for decades, of course.  The usual way to thwart hostile plans is not to kill the planners, however.  For one thing, killing a planner neither stops the planning nor erases a finished plan.  And it could facilitate the execution of such plans as are made – as undoubtedly it will do in this instance (if the new opportunities created by the American attack have not rendered all prior plans obsolete).

At present there is less semblance of a national government in Iraq that is distinguishable from the Baghdad parliament than there has been at any time since the American occupation government called that assembly into being.  The Iraqi political ramifications of the killing of Soleimani will be played out there unless they are played out on the streets of the capital, as present indications are they might well be.  Either way, the only question is whether the result will be the elimination, or merely a serious curtailment, of American military presence in that country.

Russia will see the predictable Iraqi reaction as presenting an opportunity to reduce American influence in the region, which the Putin regime sees as an end in itself.  Increasing Russia’s oil revenue will be an objective, but a fresh opportunity to fish in troubled waters will be more inviting in Russian eyes.  Even today Lavrov was in Baghdad acting the sympathetic arms dealer.

China is the power that has been most assiduously courted by Iran, and it will be watching developments in Baghdad closely.  Once the Iraqi government lodges a diplomatic protest with Washington, China will join other countries in labeling the Baghdad airport attack a violation of international law and calling for an independent U.N. investigation of the Soleimani assassination.  Whether China will go further is another question.  Unless escalating strikes and counter-strikes lead to hostilities of strategic significance, China will likely be content quietly and patiently to take advantage of declining American influence in the region.