BREAKING Exclusive: Bombshell New Legal Memo Giving Trump Supporters Hope on Christmas Eve
Overcoming the Court’s Abdication in Texas v. Pennsylvania
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.
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.
https://www.westernjournal.com/twj-exclusive-bombshell-new-legal-memo-giving-trump-supporters-hope-christmas-eve/
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