The Western Journal presents this memorandum, which was written essentially verbatim by two prominent Conservative legal scholars and can only be edited to be formatted for the Op-Ed section of our website. This is the second memo from Messrs. Olson and McSweeney, published exclusively in the Western Journal, and like the first, it describes a possible legal strategy for the Trump campaign to follow in the coming weeks. It was sent to President Trump before its publication here. – Ed. Note
Overcoming the abdication of the Texas court against Pennsylvania
William J. Olson and Patrick M. McSweeney
December 24, 2020
When the US Supreme Court refused to hear Texas v Pennsylvania, it waived its constitutional duty to resolve a real and substantive controversy between states that had duly been brought as the original case before that court. As a result, the Tribunal has been heavily criticized for evading the most important intergovernmental constitutional case brought forward for many decades, if not ever.
However, even in its order to dismiss the case, the Supreme Court has determined how to successfully bring another lawsuit – by another plaintiff. This paper explains this legal strategy. But first, let’s focus on the Supreme Court’s mistakes – hoping they won’t be made again.
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Texas v. Pennsylvania
The Supreme Court declined to hear the Texas state lawsuit against four states that refused to comply with Article II, § 1, para. 2 – the Presidential Electors Clause, which sets out the terms and requirements for the election of the President of the United States. In adopting this provision, the drafters have given each legislature exclusive power to determine the manner in which presidential voters are appointed. The Framer’s plan turned out to be extraordinarily wise, as we have now learned that the permission of other state and private actors to write the electoral rules resulted in massive electoral fraud in the four defendant states. Individuals can be bought, paid, and corrupted so much more easily than state legislators.
The only reason they refused to hear the case was that Texas had no “reputation”. All nine judges wronged: (i) Texas and the 17 states that supported their lawsuit; (ii) the United States; (iii) the President; and (iv) the people.
The many mistakes of the Texas court against Pennsylvania.
As Alexander Hamilton stated in Federalist No. 78, courts “have neither FORCE nor WILL, but only judgment”. In decision-making cases, the courts are therefore required to explain their decisions so that the rest of us can know whether it is an arbitrary exercise of political power or a reasoned decision of judicial power that the people can trust. In Texas v Pennsylvania the judges felt only obliged to justify their – “defective position” – which was supported by a justification with one sentence: “Texas has shown no judicially recognizable interest in the way that another state is its Business leads to choice. “Resolving a case of this magnitude in one final sentence is totally unacceptable.
The Supreme Court docket consists mainly of the cases the High Court wants to hear. However, just like when deciding to settle a case and in disputes where the original jurisdiction of the Court is invoked, it is obliged to rule on the cases duly brought to it. Two centuries ago, Chief Justice John Marshall interpreted the contract obligation clause in a ruling in which he wrote: “As onerous as the job may be, it is a duty we must not shrink from.” Dartmouth College Trustee v Woodward, 17 US 518 (1819). Courts are obliged to resolve important cases, even if they would prefer to avoid them. In Marbury v. Madison, 5, US 137 (1803), Marshall described “the Department of Justice’s duty to say what the law is” because “every right, when withheld, must have an appeal, and every violation has its reasonable redress”. Abdication in such a case is not a judicial option.
The Supreme Court’s confidence in standing as an excuse has achieved a positive result – prompting many to examine the origins of this doctrine, who may be surprised to find that the word “standing” is nowhere in the Constitution. There is compelling evidence that it was created by judges of major governments during the FDR administration to shield New Deal legislation and protect the administrative state from the challenges of the people. Those who backed the Texas ruling argue that standing is a conservative doctrine as it limits the power of the courts – but the true constitutionalist only uses tests based on its text. The true threshold constitutional test is whether there is a real and serious “controversy” between states that could be resolved by a court.
The only reason cited by the Supreme Court was, “Texas has shown no judicial interest in the way another state conducts its election.” In truth, Texas put on such a show. When Pennsylvania violated the exclusive authority given to lawmakers in the constitutional electoral clause, it opened the door to corruption and foreign intrigue to corrupt Pennsylvania’s electoral vote, and that is exactly what the Framers, like Alexander Hamilton in Federalist 68, created declared electoral college. During the 2020 election cycle, changes to the Pennsylvania electoral process were made by judges, state holders, and electoral officials that would never have been made by state lawmakers.
If the process by which presidents are elected is corrupted in some key states like Pennsylvania, Georgia, Michigan, and Wisconsin by manipulating the system in favor of a candidate, then who the people of Texas are supporting is completely irrelevant. This political reality represents a real “judicial interest” regardless of what the Supreme Court ruled. What happens in Pennsylvania doesn’t stay in Pennsylvania as voters from all states acting together elect the President of the United States.
In the Federalist Papers, both James Madison and Alexander Hamilton recognized the need to combat the “spirit of the faction” and the tendency of any state to indulge its immediate interests at the expense of national unity. They argued that the constitution provided a solution to this centrifugal pressure while retaining a degree of sovereignty for each state. If there are differences between states that could lead to disagreement, the republic, as Hamilton noted, can be held together “either by the authority of the courts or by military force.” One constitutional means of allowing states to peacefully resolve their differences is the provision that allows each state to rely on the original jurisdiction of the Supreme Court to address and resolve their differences.
Popularly, the Supreme Court screwed it up and threatened the bonds that hold the union together.
Round two: The United States must enter the Fray
Fortunately, this may only have been the first round in the nation’s preservation battle. There is a strategy in place to re-submit the Texas Challenge to the Supreme Court under the electoral clause so that even that court could not dare to reject the examination. Just because Texas didn’t convince the judges that what happened in Pennsylvania is harming Texas doesn’t mean the United States couldn’t convince the judges that if Pennsylvania breaks the US Constitution, it does so Nation harms. Article III, § 2, paragraph 2 gives the Supreme Court original jurisdiction in any case brought by the United States against any state. Thus, the United States can and should bring lawsuits against Pennsylvania, Georgia, Michigan and Wisconsin. Like the Texas lawsuit, this new lawsuit would seek an order nullifying the appointment of voters appointed by the four defendant states who refused to comply with the terms of the presidential election clause. That would leave it to the state legislatures in these four states to “appoint” voters – which is what the constitution requires.
When these four states broke the Constitution by allowing voters who had not been appointed in the manner prescribed by law, the United States suffered a violation. Indeed, there could hardly have been a greater harm to the nation than that which corrupted its presidential election.
The United States has a vital interest and responsibility to uphold the constitutional framework of the republic, which is formed by a voluntary pact between states. As with every contractual relationship between participants in an ongoing company, neither party is entitled to ignore or change the essential contractual conditions by acting unilaterally.
The president, who has vowed to uphold, protect, and defend the Constitution, has the right and duty to order the US Department of Justice to bring such a lawsuit to the Supreme Court – and should do so quickly.
Reasons for great hope this Christmas
In rejecting the State of Texas’ appeal to the original Supreme Court jurisdiction to settle the dispute between Texas and four other states that have refused to comply with the terms of the presidential election clause, a majority of judges for the time being has the use of this constitutional protection by Texas, to provide a peaceful means of resolving the controversy which has never deeply divided the states and citizens of this republic since the 1860s.
This consequence is too dangerous to be allowed to stand.
If the same case that was previously brought by Texas has now been brought by the United States of America, there is every reason to believe that the Supreme Court would be forced to understand that it must hear it and give it a positive decision.
While the results are never certain, it is believed and hoped that a majority in the Supreme Court could never take the position that the United States has nothing to do with enforcing the constitutional process through which we select the one government official who represents the entire people – The President of the United States.
This article originally appeared in the Western Journal.
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