William J. Olson & Patrick M. McSweeney
December 24, 2020
In refusing to hear Texas v. Pennsylvania, the U.S. Supreme Court
abdicated its constitutional duty to resolve a real and substantial
controversy among states that was properly brought as an original action
in that Court. As a result, the Court has come under intense criticism
for having evaded the most important inter-state constitutional case
brought to it in many decades, if not ever.
However, even in its Order dismissing the case, the Supreme Court
identified how another challenge could be brought successfully — by a
different plaintiff. This paper explains that legal strategy. But first
we focus on the errors made by the Supreme Court — in the hopes that
they will not be made again.
Texas v. Pennsylvania
The Supreme Court declined to hear the challenge brought by the State
of Texas against four states which had refused to abide by Article II, §
1, cl. 2 — the Presidential Electors Clause, which establishes the
conditions and requirements governing the election of the President of
the United States. In adopting that provision, the Framers vested in
each State legislature the exclusive authority to determine the manner
of appointing Presidential electors. The Framers’ plan was shown to be
exceedingly wise, because we have now learned that allowing other state
and private actors to write the election rules led to massive election
fraud in the four defendant states. Individuals can be bought, paid for
and corrupted so much easier than state legislatures.
In refusing to hear the case, the sole reason given was that Texas
lacked “standing.” In doing so, all nine justices committed a wrong
against: (i) Texas and the 17 states that supported its suit; (ii) the
United States; (iii) the President; and (iv) the People.
The Court’s Many Wrongs in Texas v. Pennsylvania.
As Alexander Hamilton explained in Federalist No. 78, courts have
“neither FORCE nor WILL, but merely judgment.” As such, in deciding
cases courts have a duty to explain their decisions so the rest of us
may know if they constitute arbitrary exercises of political power, or
reasoned decisions of judicial power which the People can trust. In
Texas v. Pennsylvania, all that the justices felt obligated to do was to
state its — “lack of standing” — supported by a one sentence
justification: “Texas has not demonstrated a judicially cognizable
interest in the manner in which another State conducts its election.”
Resolving a case of this magnitude with one conclusory sentence is
completely unacceptable.
The Supreme Court docket consists primarily of only those cases the
High Court chooses to hear. However, just like when it agrees to decide a
case, and in disputes where the original jurisdiction of the Court is
invoked, it has a duty to decide cases properly brought to them. Two
centuries ago, Chief Justice John Marshall construed the obligation of
contracts clause in a decision where he wrote: “however irksome the task
may be, this is a duty from which we dare not shrink.” Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819). Courts have a duty to resolve important cases even if they would prefer to avoid them. In Marbury v. Madison,
5 U.S. 137 (1803), Marshall described “the duty of the Judicial
Department to say what the law is” because “every right, when withheld,
must have a remedy, and every injury its proper redress.” Abdication in a
case of this sort is not a judicial option.
The Supreme Court’s reliance on standing as its excuse has had one
positive result — provoking many to study the origins of that doctrine
who may be surprised to learn that the word “standing” nowhere appears
in the Constitution. There is compelling evidence to demonstrate it was
birthed by big-government Justices during the FDR Administration to
shield New Deal legislation, and to insulate the Administrative State
from challenges by the People. Those who favored the Texas decision
argue that standing is a conservative doctrine as it limits the power of
the courts — but the true constitutionalist uses only tests grounded in
its text. The true threshold constitutional test is whether a genuine
and serious “controversy” exists between the States that could be
resolved by a court.
The only reason given by the Supreme Court was: “Texas has not
demonstrated a judicially cognizable interest in the manner in which
another State conducts its election.” In truth, Texas did make such a
showing. When Pennsylvania violated the exclusive authority bestowed on
state legislators in the Constitution’s Electors Clause, it opened the
door to corruption and foreign intrigue to corrupt the electoral votes
of Pennsylvania, and as Alexander Hamilton explained in Federalist 68,
that is exactly why the Framers created the Electoral College. During
the 2020 election cycle, changes to the election process in Pennsylvania
were made by judges, state office holders and election officials which
would never have been made by its state legislature.
If the process by which Presidential Electors are chosen is corrupted
in a few key states, like Pennsylvania, Georgia, Michigan and Wisconsin
by rigging the system in favor of one candidate, it becomes wholly
irrelevant who the People of Texas support. That political reality
presents a real “judicially cognizable interest” no matter what the
Supreme Court decided. What happens in Pennsylvania does not stay in
Pennsylvania, as electors from all States acting together select the
President of the United States.
In the Federalist Papers, both James Madison and Alexander Hamilton
recognized the need to combat “the spirit of faction” and the tendency
of each State to yield to its immediate interest at the expense of
national unity. They reasoned that the Constitution provided a solution
to this centrifugal pressure while reserving a measure of sovereignty to
each State. When differences arise between States that threaten to lead
to disunion, the Republic can be held together, as Hamilton observed,
either “by the agency of the Courts or by military force.” A
constitutional remedy to enable the States to resolve their differences
peacefully is the provision that permits any State to invoke the
original jurisdiction of the Supreme Court to address and settle their
differences.
In the vernacular, the Supreme Court blew it, threatening the bonds that hold the union together.
Round Two: The United States Must Enter the Fray
Fortunately, that might have been only the first round in the fight
to preserve the nation. A strategy exists to re-submit the Texas
challenge under the Electors Clause to the Supreme Court in a way that
even that Court could not dare refuse to consider. Just because Texas
did not persuade the Justices that what happens in Pennsylvania hurts
Texas does not mean that the United States of America could not persuade
the justices that when Pennsylvania violates the U.S. Constitution, it
harms the nation. Article III, § 2, cl. 2 confers original jurisdiction
on the Supreme Court in any case suit brought by the United States
against a state. Thus, the United States can and should file suit
against Pennsylvania, Georgia, Michigan and Wisconsin. Like the Texas
suit, that new suit would seek an order invalidating the appointment of
the electors appointed by those four defendant States that refused to
abide by the terms of the Presidential Electors Clause. That would leave
it to the state legislatures in those four states to “appoint” electors
— which is what the Constitution requires.
When those four States violated the Constitution by allowing electors
who had not been appointed in the manner prescribed by the state
legislature, the United States suffered an injury. Indeed, there could
hardly have been a more significant injury to the nation than that which
corrupted its Presidential election.
The United States has a vital interest and a responsibility to
preserve the constitutional framework of the Republic, which was formed
by a voluntary compact among the States. As with any contractual
relationship of participants in an ongoing enterprise, no party is
entitled to ignore or alter the essential terms of the contract by its
unilateral action.
The President who has sworn to preserve, protect and defend the
Constitution has the right and the duty to order the U.S. Department of
Justice bring such an action in the Supreme Court — and should do so
quickly.
Reasons for Great Hope at Christmas
In rejecting the invocation by the State of Texas of the original
jurisdiction of the Supreme Court to resolve the dispute between Texas
and four other States that refused to abide by the terms of the
Presidential Electors Clause, for now, a majority of the Justices
foreclosed the use of that constitutional safeguard by Texas to provide a
peaceful means of resolving the controversy that has deeply divided
States and the citizens of this Republic as at no time since the 1860s.
That consequence is too dangerous to be allowed to stand.
If the same case previously brought by Texas were now brought by the
United States of America, there is every reason to believe that the
Supreme Court would be compelled to understand it must hear it and
decide it favorably.
Although outcomes are never certain, it is believed and hoped that a
majority of the Supreme Court could never take the position that the
United States has no business enforcing the process established in the
Constitution by which we select the one government official who
represents all the People — The President of the United States.
