Hi, and welcome back to Trump Watch! Remember when March was the longest month? I think May has taken that title. At least we've got a rocket launch to watch this weekend, thanks to Florida weather. Tell me what bizarre thing you think Elon Musk will tweet during the launch at [email protected], and follow me on Twitter at @jacq_thomsen.

 

 

Some of the House v. the House

When the U.S. Supreme Court ruled in 1997 on Raines v. Byrd over lawmakers' challenge to a federal law they alleged diluted the power of their vote, two attorneys were on the briefs on opposing sides: Doug Letter and Chuck Cooper.

Letter, now House general counsel, was on the team of government attorneys led by acting solicitor general Walter Dellinger, who argued the individual members of Congress could not go to court to challenge a federal law. Cooper helped represent the lawmakers who voted against the Line Item Veto Act and then sued after the bill was signed into law, alleging it diluted their voting powers granted under Article I of the Constitution. Alan Morrison argued the case for lawmakers before the justices.

A similar issue is now being raised in a new suit by Cooper and other lawyers on behalf of twenty Republican members of the House, arguing the proxy voting system set up during the coronavirus pandemic gives lawmakers who are tapped by others to vote on their behalf too much influence, and gives less weight to the votes of members who are physically present.

While the House's legal fights so far have centered on battles with President Donald Trump and his administration, the new GOP complaint signals the president's litigious habits are spreading to other parts of the federal government. House Republicans have few mechanisms to block the Democratic majority, making a lawsuit—even an unsuccessful one—a way to publicly show their opposition.

In the Raines majority opinion—a 7-2 ruling—then-Chief Justice William Rehnquist wrote the court "must put aside the natural urge to proceed directly to the merits of this important dispute and to 'settle' it for the sake of convenience and efficiency. Instead, we must carefully inquire as to whether appellees have met their burden of establishing that their claimed injury is personal, particularized, concrete, and otherwise judicially cognizable."

"In sum, appellees have alleged no injury to themselves as individuals, the institutional injury they allege is wholly abstract and widely dispersed, and their attempt to litigate this dispute at this time and in this form is contrary to historical experience," Rehnquist wrote.

The main difference between the case in Raines and this week's lawsuit is what's being challenged. The proxy voting system was established in a House resolution, not a federal law, which means it's a fight within one branch of government and not between two. Whether that will be enough to change standing will be up to the judge: Rehnquist in Raines put quite a bit of emphasis on the House's official stance against the lawsuit.

Morrison, a law professor at George Washington University who represented the members of Congress in Raines, noted the statute the lawmakers challenged had a provision that allowed them to go to court over the law. But he said there are "lots of reasons the court may not get to the merits here."

Morrison pointed to the U.S. Supreme Court's ruling on the impeachment of Judge Walter Nixon, where the justices found the Senate had the right to set its own rules. That precedent could easily apply to the House's right to set the proxy voting rule.

Neal Devins, a professor at William & Mary Law School who specializes in constitutional law, said he didn't know how the Republicans could overcome the holding in Raines, particularly on members having to show a particularized injury due to the temporary House rule.

He acknowledged a distinction could be made between the new lawsuit and Raines because it challenges a House rule and not a federal law. "But I think the concern is having courts getting in the business of figuring out these kinds of harms, and I don't think the court wants to figure it out," Devins added, describing the fight as an "intramural dispute about House rules."

Morrison said there are other alternatives beyond the lawsuit: Senate Majority Leader Mitch McConnell could refuse to take up any legislation the House passes by proxy vote, or Trump could veto it.

U.S. District Judge Rudy Contreras, who joined the bench in 2012 after being tapped by President Obama, will get the first shot at the legal fight in federal court.

Letter has not yet filed a notice of appearance in the case, but it's assumed that his office will represent Speaker Nancy Pelosi as well as clerk Cheryl Johnson and sergeant-at-arms Paul Irving, as they are sued in their official capacity.

"You can have a pandemic for the first time, you can have Trump for the first time, but you still have the same lawyers arguing," Devins quipped of Letter and Cooper's ties to both cases.

 

SPONSORED BY ALM PARTNERS

Zoom – Quick Reference Guide

This Zoom Reference provides shortcuts, tips, and tricks for the popular video conferencing software. Use this reference to brush up on the basics and to find alternative methods to your favorite commands. This printable quick reference is yours to use, distribute, and share at your organization! READ MORE

 

 

The Judicial Confirmation Machine Goes On

>> Trump tapped two nominees for judgeships on the U.S. District Court for New Mexico. The nominees—Fred Federici and Brenda Saiz—would replace a pair of judges nominated to the court by President George W. Bush. It's also a blue state, which means Democratic senators had to sign off on the nominees.

>> Senate Judiciary Committee Chairman Lindsey Graham told conservative host Hugh Hewitt that older judges should take senior status soon "if you want to make sure the judiciary is right of center." Full quote: "We've put over 200 federal judges on the bench. I think one in five federal judges are Trump appointees. If you can get four more years, I mean, it would change the judiciary for several generations. So if you're a circuit judge in your mid-60s, late 60s, you can take senior status, now would be a good time to do that if you want to make sure the judiciary is right of center. This is a good time to do it."

Graham also weighed in on judicial vacancies in blue states: "Right, now, some of these are emergency vacancies, too. We need, actually, the judges filled. But we're looking at maybe six that we can do with California in negotiating with the two senators and the White House. We've had, in Pennsylvania, they have a three to one ratio as the party in power gets three picks, and the party out of power gets one. There are different deals in different states. We've gotten some blue slips from blue states, and we'll continue to do that. So time will tell."

>> Speaking of the Senate Judiciary Committee, next week will be busy. Rod Rosenstein is showing up Wednesday to testify in the first oversight hearing on the "Crossfire Hurricane" investigation, which eventually led to the Mueller probe. The committee also has an executive business meeting scheduled for Thursday, where they're set to vote on subpoenas for Obama administration officials as part of the committee's FISA probe. Judge Justin Walker, nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit, is also listed on the agenda.

 

 

What We're Reading

>> Revealed: conservative group fighting to restrict voting tied to powerful dark money network: "A powerful new conservative organization fighting to restrict voting in the 2020 presidential election is really just a rebranded group that is part of a dark money network already helping Donald Trump's unprecedented effort to remake the US federal judiciary….Despite appearing to be a free-standing new operation, the Honest Elections Project is just a legal alias for the Judicial Education Project, a well-financed nonprofit connected to a powerful network of dark money conservative groups, according to business records reviewed by the Guardian and OpenSecrets." [The Guardian, OpenSecrets]

>> Trump signs order that could punish social media companies for how they police content, drawing criticism and doubts of legality: "President Trump on Thursday signed an executive order that could open the door for federal regulators to punish Facebook, Google and Twitter for the way they police content online, issuing a major broadside against Silicon Valley that quickly triggered wide-ranging political opposition and threats of a legal challenge." [Washington Post] 'Unlawful and Unenforceable': Legal Experts Deride Trump's Attempt to Target Social Media Companies: "'The order was born unconstitutional because it was issued in retaliation for Twitter's fact-checking of President Trump's tweets. Some of its provisions raise additional constitutional concerns, since they seem to contemplate that the government will investigate and punish internet service providers for decisions that are protected by the First Amendment.'" [National Law Journal]

>> 'Politicians in Robes': Democrats Launch Push to Counter Conservatives' Judicial Strategy: "[Senate Democrats] on a call with reporters Tuesday cast their findings as the first step toward exposing and changing conservatives' influence on the courts. However, with Trump tapping nearly 200 Article III judges since taking office, it's unclear exactly how this effort will counter that immediate impact." [National Law Journal]

>> 'Acrimony Between the Branches': How the Trump Lawsuits Could Shape Future House Legal Fights: In interviews, former House counsel said litigation has always been a regular part of the work. But all acknowledge that none of their work was anywhere near the sheer volume faced by the House now. With partisan gridlock gripping Washington, D.C., it's possible the typically low-profile office could become a more regularly used weapon in the House's arsenal if future administrations embrace Trump's stonewalling approach. And if Trump is reelected in 2020, the legal fights won't end anytime soon." [National Law Journal]

---

That's all folks! Thanks for reading Trump Watch, I'll be back next week.