Monthly Archives: September 2022

Supreme Court — October Term 2022 Preview (Part 2)

The Supreme Court begins its annual term this upcoming Monday, October 3.  Unofficially, the term begins later today when the Supreme Court holds its opening conference (at which it will start selecting the cases that will start to fill out its January and February argument sessions).  In Part 1, we covered the cases that have been scheduled for argument in October and November.  In this post, we will cover the cases that were previously accepted for argument back in the Spring but which have yet to be assigned to an argument docket (as of yesterday).  Any day now, we should have a list of the December cases (which will actually begin on November 28 and be half in November and half in December).

Percoco vs. United States and Ciminelli vs. United States are related cases involving bidding fraud and government contracting.  One aspect of the cases is whether a lobbyist with political connections (here a former campaign manager) can be found guilty for “honest services fraud” (a means of holding elected officials liable for their part in going along with fraud).

Moore vs. Harper may be the biggest election law case of the term.  The Constitution grants initial power over federal elections to state legislatures.  The two elections clauses — one for congressional elections and one for the choosing of presidential elections — have typically been interpreted as referring to the state legislative power rather than specific bodies (recognizing that, even in the 1780s, there were differences between the states in how they structured their governments).  This traditional interpretation recognized that the people of the states had the authority to enact restrictions on election laws in their state constitutions.  In recent years, conservatives have come up with the “independent state legislature” theory.  Under this theory, the federal elections clauses granted power to the state legislatures that are beyond the control of state constitutions and state laws and rules.  In relevant part, absent an express grant in the state election laws, this theory contends that state courts may not invalidate state elections laws related to federal elections based on state constitutions and that state executive branch officials may not deviate from the express commands in those state elections laws.  This case arises in the context of congressional redistricting, but the theory of the North Carolina legislature would open up a convoluted mess of when a court or an election authority is merely interpreting the relevant state statues and when they are altering it. Continue Reading...

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Supreme Court — October Term 2022 Preview (Part 1)

It’s that time of year again.  After upending the Constitution at the end of the 2021-22 term in June, the Supreme Court begins its 2022-23 term in just over a week.

A quick refresher.  From October through late April/Early May., the Supreme Court will have seven two-week argument sessions.  With the exception of extended breaks after the “December” and January argument sessions, the typical schedule is two weeks of arguments followed by a two-week recess.  In most of the weeks, the Supreme Court will have arguments on Monday, Tuesday, and Wednesday (except when one of those days is holiday — either legal or religious).  On argument days, the Supreme Court will usually hear two cases in the morning.  (That “usual” is very flexible.  With the declining number of cases granted in recent years, we have been seeing more single argument days.  Additionally, if there is a very complex case, they might give that case extended time and limit themselves to one case.  Rarer is having enough cases that they also schedule an afternoon argument.)  They will then meet in a “conference” on Friday to discuss the cases heard that week and to consider petitions for review (officially called petitions for certiorari).  They also meet in a conference on the Friday before the argument session to consider petitions for review.  Orders on the petitions for review are released on the Monday after the conference.  In discussing the cases heard, the Supreme Court will take a tentative vote and the “senior justice in the majority” (either the Chief Justice or the longest serving Associate Justice) will assign one of the justices to write an opinion. Opinions can be released at any time after the argument.

The October argument session (and the term) officially begins on the first Monday in October (October 3, this year).  They will meet in the “long conference” to kick off the term on September 28.  (It is called the long conference because petitions for review have been piling up since the last conference of the 2021-22 back in late June.) Continue Reading...

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International Issues

Historically, domestic issues have always mattered more than foreign relations.  But the willful ignorance of the rest of the world leads to a misleading view of domestic issues.  So three topics worthy of a closer look.

First, for the last week the pomp of the United Kingdom has been on display with the ceremonies connected with the death of Queen Elizabeth II and the succession of King Charles III.  We simply do not do pomp in this country that well.  What can’t be denied is that pomp has a role to play.  The formalities of politics emphasize continuity and the orderly rules of succession.  If you have ever watched coverage of a British general election, there is a whole formal ceremony connected with the declaration of the vote in each district.  And, at least for the early results (until they expand from a trickle to a flood), many of the declarations get live coverage.  By contrast, in the U.S., the media “declare” a winner long before the count becomes official, and the official declaration of the vote is simply a vote by a canvassing board covering multiple races and some signatures on the official documents with little or no public fanfare.  This low-key approach has, as we have seen, the consequence of depriving the final result of some of the finality and officialness which would make it harder to challenge.

Second, we are now dealing with a global economy.  National (and state and local) governments can impact things around the margin.  But we lack any recognizes statistics for measuring how well or poorly a particular country is doing.  How many Americans know that the United Kingdom with a Conservative government is looking at double digit inflation while the U.S. is doing about 5% better.  The reality is that so much of what is produced and consumed in this country (even if it stays entirely in the U.S.) is part of a global market.  The oil produced by U.S. wells may be refined in U.S. facilities and then sold at U.S. gas stations, but that is all done by private companies which only do so to the extent that they can make more money in the U.S. than in Mexico or Japan or Germany.  So if prices are going up in Germany, Americans will have to pay more if we want to keep the gas in the U.S.  Likewise, it is hard to have a growing economy if the rest of the world is in a recession and nobody abroad can buy the extra goods that you are producing.  But there is no official number for global inflation (pegged to value in the same currency) or global economic growth.  Thus, it takes a lot more effort than most voters are going to do to find out if the current government is doing as best a job as can be done to weather hard times in the global economy or is doing a lousy job to maximize gains when the global economy is doing well. Continue Reading...

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The Fall Campaign

Traditionally, Labor Day Weekend was seen as the start of the Fall campaign (at least by the media).  If that was ever true, it no longer is.  With cable and websites like Facebook and Youtube, there are a lot of relatively inexpensive way to get advertisements out during July and August.  If a campaign waits unti September to begin its ad campaign, the other side has already defined the race.

But, by this point in the cycle, we are down to the last handful of primaries, and the national committees and big PACS are already looking to decide where they are going to be spending the big bucks in late September and early October.  (As the change in the mechanism for advertising has obliterated Labor Day as the start of the fall campaign, the change in voting habits (with a significant percentage casting early votes or mail-in ballots) has also altered when the big final push begins.  While, in a close race, last minute news and ads can make a difference, it is just as important to get as many votes locked in as early as possible so that the last-minute spending can be focused on a tiny number of votes.

But that is the inside baseball stuff of campaigns.  The purpose of this post is to set the stage for the next eight weeks.  For the past two years, Democrats have had the frustration of a very narrow margin in the House of Representatives and a dead-even Senate.  Because Nancy Pelosi may be one of the all-time great Speakers, Democrats have been mostly able to pass things in the House.  The Senate, however, has been very, very difficult.  The filibuster rules has limited the Democrats to passing anything significant via the reconciliation process.  Even the reconciliation process requires keeping the entire Democratic caucus together which has proven difficult as a single member can insist on changes to any proposal.  And the  lack of a majority has also prevented any changes to the filibuster rule (again due to the ability a single Democrat to veto any proposed change). Continue Reading...

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