Category Archives: legislation and legislatures

“Roberts Calls Court’s Relationship With Congress ‘Strained.’ Who’s to Blame?”

Jimmy Hoover for the NLJ.

I offered some thoughts in this one:

Many commentators say that a similar dynamic is responsible for today’s partisan rancor in light of the Supreme Court’s now solidly 6-3 supermajority of Republican appointees.

“The Supreme Court for the first time in modern history has all the conservatives appointed by one party and all the liberals appointed by the other,” said Rick Hasen of UCLA Law, a prominent Supreme Court scholar.

In the past, Hasen noted, several Republican appointees such as Justices John Paul Stevens and David Souter frequently voted with Democratic-appointed liberal justices in politically or socially fraught cases. No longer.

“It’s much easier to see and to describe the court as acting in partisan ways: ‘the Republican majority on the Supreme Court, the Democratic dissenters on the Supreme Court,’” Hasen said. “Language like that is accurate in a way that it wasn’t before.”

What’s more, this expanded conservative majority has not shied from wielding its power, often at the expense of the legislative and executive branches, and often without any of the court’s liberal members signing on, Hasen said. This past term’s blockbuster 6-3 decision establishing broad criminal immunity for former President Donald Trump and effectively delaying his trial over the 2020 election is a prime example.

“That was huge and I was wrong,” said Hasen.

“I was expecting the chief justice to be looking for some common ground and to be looking for a way for the court to speak, if not with one voice, at least with some bipartisan agreement, and that didn’t happen at all,” Hasen added. “Something has changed with John Roberts.”

Although Hasen faults the court for its failure to bridge partisan divide, he lays part of the blame at politicians such as Schumer who have only fanned the flames of division with their rhetoric.

“I do think that because of this partisan split, you often get hyperbole or worse coming from political actors,” Hasen said.

“It’s not as though every criticism of the court is well considered,” he added. “I thought that language was intemperate and not helpful.”

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“Democrats rage as Johnson restricts their ability to oust him”

Axios:

House Democrats are pushing back furiously against a proposed change to House rules that would allow only Republicans to force a vote on removing the speaker of the House.

Why it matters: Top Democrats are arguing the move would inhibit bipartisanship and effectively make House Speaker Mike Johnson (R-La.) answerable only to his members — not the entire House…

Driving the news: The 36-page rules package for the 119th Congress, unveiled on Wednesday, raises the threshold to introduce what is called a motion to vacate in multiple ways.

  • Whereas in the last Congress, any single House member could introduce such a motion, now eight others have to co-sponsor the measure.
  • But all nine of those lawmakers have to be members of the majority party — which will be the Republicans in this Congress.
  • The rule change is part of a deal struck by House Republicans’ internal factions in November as the party renominated Johnson for speaker.
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“State Law and Federal Elections After Moore v. Harper”

Carolyn Shapiro has written this article for the NYU Law Review. Here is the abstract:

In Moore v. Harper, the Supreme Court rejected the extreme proposition that state legislatures operate free from state constitutional constraints and judicial review when they regulate federal elections. The Court, however, left open the possibility that a state court might run afoul of the federal Constitution if, in striking down or construing state election law, it exceeds “the ordinary bounds of judicial review.” This Article explores the potential scope of that exception, and it proposes arguments and strategies to guard against undue and disruptive federal court intrusion on state election law. In particular, the Article relies on longstanding principles of federalism to develop substantive and procedural arguments that insist on federal court deference to state courts’ interpretation and application of their own law.

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“The 118th Congress passed the fewest laws in decades”

Axios:

If measured by the number of bills signed into law, the 118th Congress was by far the most unproductive since at least the 1980s, according to data from public affairs firm Quorum.

Why it matters: That is not the only metric of success, but the stunning stat is a marker of how difficult the chaos of the last two years made actual legislating.

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“A Razor-Thin House Majority Creates Headaches for Republicans”

WSJ:

They won, but barely. 

Republicans held on to control of the House of Representatives in November by one of the thinnest margins in the country’s history—even smaller than in the current Congress—a result that will have them walking a tightrope again for the next two years. The drama starts next week when the party tries to elect a new speaker on the first day of the new session, with fresh grumblings about leadership setting the stage for an unpredictable vote.

Republicans won 220 seats to Democrats’ 215. One planned vacancy—that of former Rep. Matt Gaetz, who was elected to another term but said he won’t take office—will reduce Republicans to 219 when lawmakers reconvene on Jan. 3. Two resignations of lawmakers set to join the Trump administration—Reps. Elise Stefanik and Mike Waltz—will temporarily reduce GOP numbers to 217 later in January before special elections are held. President-elect Donald Trump starts his second term on Jan. 20.

While Republicans will have full control of Congress and the White House, the wafer-thin cushion in the House means any small handful of Republican defectors could trip up the GOP agenda by holding out for their leaders or their own terms. As the past two years have shown, it also means that a run of bad luck for Republicans—such as health setbacks or a string of resignations—could eat into the margin. 

“We know how to work with a small majority; that’s our custom now,” House Speaker Mike Johnson (R., La.) told reporters earlier this month. “This is a team effort and we’ve got to all row in the same direction.”

At the extreme, Republicans could surrender the majority by attrition before the next election, something that actually happened in 1931, when Republicans lost a two-seat majority midway through then-President Herbert Hoover’s term….

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“Republicans in North Carolina pass sweeping changes to consolidate power”

Washington Post. North Carolina Republicans are back at it! The North Carolina legislature (controlled by Republicans) is seeking “last-minute inclusions” in a hurricane relief bill that “will strip the incoming Democratic governor and attorney general of significant authority before the GOP loses its legislative supermajority.”

Among the powers being stripped:

  • Control over election boards: “The lame-duck bill will shift the ability to appoint members of the state and county elections boards from the governor to the state auditor. That will mean Republicans instead of Democrats will control those boards, which oversee ballot tallies, set voting rules and decide how many early-voting locations to open.”
  • Control over judicial vacancies: “the governor must fill any vacancies on the state’s top courts with appointees recommended by the political party of the departing judge.”

The bill also makes it harder for voters to cast provisional ballots: Voters who do not bring a photo ID to the polls will only have three days (previously nine) to show up.

It is unclear if the NC GOP has the votes to pass the measure.

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“Republicans Ran a Dysfunctional House. Voters Shrugged and Re-elected Them.”

NYT:

A historically long and divisive fight to choose one speaker. A near default on the federal debt, followed by a mutiny on the House floor and multiple government shutdown scares. The ouster of the speaker, followed by weeks of paralysis and another vicious fight over who should lead next.

For almost two years, House Republicans have barely been able to overcome their own intraparty feuding to keep the government functioning. But despite it all, they emerged on Wednesday night, when The Associated Press declared that Republicans had effectively won control of the House, with a wafer-thin majority almost identical to the one they have now.

The apparent success of their battle to keep control of the House of Representatives suggests that they paid little political price for the chaos and dysfunction they presided over, a period when Congress struggled to carry out even the basics of governing.

And it suggests that members of both parties overestimated how much voters would judge them by their job performance….

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“Dems say they will certify a Trump victory — even though some see him as ineligible for office”

Politico:

Democrats in Congress for years have labeled Donald Trump an “insurrectionist,” impeached him for stoking violence on Jan. 6, 2021, and suggested he is constitutionally prohibited from returning to the White House.

But even as those lawmakers continue to doubt Trump’s eligibility for the presidency, they also say that if he wins at the polls, they don’t expect efforts to deny him his presidential electors on Jan. 6, 2025, when Congress meets to finalize the results.

Democratic leaders are saying publicly and privately they want a drama-free transfer of power — even if it means setting aside some members’ views that Trump is ineligible to return to the presidency because of the Constitution’s bar on insurrectionist officeholders.

The 14th Amendment prohibits any federal officeholders who have “engaged in” insurrection from holding office again, and Democrats have long suggested Trump ran afoul of it when he inflamed the violent mob that attacked the Capitol four years ago. At the time, House Democrats overwhelmingly voted to impeach Trump for “incitement of insurrection.” Their leader, Hakeem Jeffries, has routinely called Trump the “insurrectionist-in-chief.” But there appears to be little appetite among Democrats to challenge results during the Jan. 6 joint session.

“The integrity of our democratic process depends on the peaceful transfer of power. Donald Trump has decided that the only valid elections are elections he wins,” Minority Whip Katherine Clark (D-Mass.) said in a statement to POLITICO. “He is the only President who has supported an insurrection rather than accept the will of the American people. Democrats will always ensure every vote counts and that we uphold our democracy.”…

In its March opinion, the Supreme Court implied — though didn’t explicitly state — that Congress must pass legislation to lay out a procedure to determine whether a current or former officeholder has violated the insurrection clause. It’s a gap that leaves some uncertainty about what Congress’ obligations and options are in January.

But most constitutional scholars say it would be improper for lawmakers to make a subjective judgment about Trump’s eligibility without a forum to fully air and debate the facts.

“Congress does not have the capacity in the [Jan. 6] joint session to do so,” said Derek Muller, a University of Notre Dame constitutional law expert. “Because Congress is not in a position to decide the matter, Congress should count the votes.”

Edward Foley, an Ohio State University constitutional scholar who has written about the insurrection clause, said the Supreme Court left a gap on this issue but doesn’t think members of Congress will step into the breach.

“Everything I’ve seen indicates that Democrats in Congress won’t attempt this,” Foley said.

In a hypothetical scenario in which Trump’s opponents controlled the House and Senate, with enough votes to disqualify his electors — “which they won’t have,” Foley noted — he said it’s unclear whether courts would step in to block the decision.

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Republicans Plan to Go to U.S. Supreme Court Raising Independent State Legislature Theory to Seek to Block Pennsylvania Supreme Court Ruling Requiring Counting of Certain Provisional Ballots

Are we about to see the Supreme Court weigh back into the application of the independent state legislature theory?

Back on Wednesday, I wrote about a divided ruling of the Pennsylvania Supreme Court that required the counting of provisional ballots submitted by voters after the voters were notified that the mail-in ballots they submitted were defective for missing a secrecy sleeve. Republicans have now signalled they will go to the Supreme Court to get that ruling overturned on independent state legislature theory grounds, or at least get an order for now for those ballots to be segregated while the matter plays out.

I did not expect that this case would lead to an emergency filing in the Supreme Court, because it involved the treatment of such ballots in the 2024 primary elections now long since past. The RNC’s stay application to the PA Supreme Court, does not even mention that this took place in the primary. Instead the claim is one of irreparable injury for how the matter will be handled in the upcoming general election (“absent a stay, the Republican Committees will suffer ‘irreparable injury’ because they will lose the right to seek review in the U.S. Supreme Court and, once the 2024 General Election has come and gone, cannot receive a remedy for election results tainted by ballots illegally counted in violation of the General Assembly’s plain directives and the Elections and Electors Clauses.”). Not sure that will work. If not, there might have to be some kind of new lawsuit raising the issue in time for these ballots.

How many ballots may be at issue? This new research suggests it could be thousands of ballots, so this could matter if Pennsylvania is crucial to the outcome of the election.

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“Wisconsin Supreme Court grapples with governor’s 400-year veto, calling it ‘crazy'”

AP:

Justices on the Wisconsin Supreme Court said Wednesday that Gov. Tony Evers’ creative use of his expansive veto power in an attempt to lock in a school funding increase for 400 years appeared to be “extreme” and “crazy” but questioned whether and how it should be reined in.

“It does feel like the sky is the limit, the stratosphere is the limit,” Justice Jill Karofsky said during oral arguments, referring to the governor’s veto powers. “Perhaps today we are at the fork in the road … I think we’re trying to think should we, today in 2024, start to look at this differently.”

The case, supported by the Republican-controlled Legislature, is the latest flashpoint in a decades-long fight over just how broad Wisconsin’s governor’s partial veto powers should be. The issue has crossed party lines, with Republicans and Democrats pushing for more limitations on the governor’s veto over the years.

In this case, Evers made the veto in question in 2023. His partial veto increased how much revenue K-12 public schools can raise per student by $325 a year until 2425. Evers took language that originally applied the $325 increase for the 2023-24 and 2024-25 school years and instead vetoed the “20” and the hyphen to make the end date 2425, more than four centuries from now.

“The veto here approaches the absurd and exceeds any reasonable understanding of legislative or voter intent in adopting the partial veto or subsequent limits,” attorneys for legal scholar Richard Briffault, of Columbia Law School, said in a filing with the court ahead of arguments…..

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“‘One pistol clip can change the balance of power’: Congress is wholly unprepared for a mass casualty event”

Politico:

Over the past 15 years, members of Congress have survived two near-deadly shootings, a train crash with dozens of them on board, and a Capitol riot that had hundreds of lawmakers fearing for their lives.

Despite those incidents, the institution is wholly unprepared for a catastrophic event that kills or incapacitates multiple members — even if that hypothetical tragedy results in a major power shift: changing which party holds the majority in the House or Senate.

Members of Congress themselves have proposed a host of solutions to the havoc a mass casualty could wreak. Those propositions range from a constitutional amendment allowing members to designate their own successors to simple rule changes to prevent violence from shifting party power. But a POLITICO review shows that both Republican and Democratic leaders, including chairs of key committees, have failed to significantly advance any of the ideas proposed since a mass shooting at a GOP baseball practice in 2017. That’s largely based on a reluctance to acknowledge the issue and a general resistance in Congress to changing rules.

That strikes many members as foolhardy.

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“Will the Supreme Court Revive the Dangerous Fringe Election Theory It Just Rejected?”

Anna Jessurun in Slate:

As several scholars predicted, ISLT proponents have now seized on the language in Moore to argue that state supreme court decisions that invalidate state election laws on state constitutional grounds violate the elections clause. This spring, the Montana Supreme Court held that various election laws, such as the elimination of same-day voter registration and the restriction of third-party absentee ballot collection activities, violated the right to vote in the state constitution. Now Montana has asked the U.S. Supreme Court to review and reverse that decision, arguing that by striking down these laws, the state Supreme Court unconstitutionally interfered with the authority of the Legislature.

Far from raising substantial questions under the elections clause, the Montana case underscores why the vast majority of post-Moore ISLT claims should not succeed. As I and others argue in an article forthcoming in Boston College Law Review, it will be exceptionally rare for a state court to exceed the ordinary bounds of judicial review, and accordingly, it will almost never be appropriate for the Supreme Court to second-guess state court decisions on state constitutional law under the elections clause.

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