It's Not Going to Be Popular to Say This Around Some Circles, But the Supreme Court Did the Right Thing in Striking Down the U.S. District Court's Attempt to Alter Wisconsin's Voting Framework

I don't think it's any secret that I don't like Donald Trump.  He's got an authoritarian streak, he can't stand criticism, and he does try to grab power he doesn't have.  But, I'm not going to join those who have a knee-jerk reaction every time some branch of the U.S. Government takes an action or makes a decision that has the effect of decreasing the opportunities to cast or count votes and claim that it's part of some vast right-wing conspiracy to suppress the vote and keep Trump in power.  There are times when lower courts, in an effort to do what the trial judge subjectively thinks is the morally right, overstep their authority.  When that happens, the Supreme Court is within its authority to remind those lower courts that they need to work within the framework of the law and the Constitution.  Among those constitutional principles that is important to uphold are the separation of powers and federalism.  This is why the Supreme Court's decision on Monday, April 6th,addressing the election in the State of Wisconsin, although poorly written, was the right thing to do.

The Supreme Court's decision did not elaborate on the facts too well.  For that, I had to go back to the decision of the U.S. District Court for the Western District of Wisconsin dated April 2, 2020.  That decision addresses three consolidated cases, in all of which the plaintiffs challenge Wisconsin's election framework, within the context of the current COVID-19 crisis.

The entire world is the middle of a pandemic, from a virus which heretofore had not been identified, and had not infected humans.  That is SARS-CoV2, which many have been identifying by using the shorthand, the coronavirus.  It is actually just one, and indeed the newest, of many different types of coronaviruses, which, unfortunately, is confusing some people.  The virus causes the disease that the World Health Organization calls COVID-19.  COIVD-19 appears to cause mild symptoms in the vast majority of people.  But in some people, it can cause serious respiratory issues, and death.  There is some dispute over the death rate, but it appears to be between 1% and 3%, which is a much higher death rate than the flu.  In addition, the virus appears to be more contagious than the flu.  Because humans have not developed natural immunity to this virus yet, and because we currently do not have a vaccine against the virus, it has swept across the globe.  With the first case in humans being identified in December of 2019, as of the time of writing, over 1.2 million people have been infected worldwide.  Over 72,000 people have died from COVID-19.

COVID-19 has the potential to overwhelm the medical resources throughout the world.  The recommendation of medical professionals has been to isolate those who have the virus, quarantine those who have come in contact with those who have the virus, and generally practice social distancing and safe personal hygiene for everyone else.  Governors across the United States have issued stay-at-home orders, to prevent people from congregating and giving the virus more opportunities to spread.  Surfaces are being cleaned more often, and people are being advised to wash their hands often, to wear masks in public and to try not to touch their faces.  Most importantly, medical professionals have advised that we avoid large public gatherings.

However, this is an election year in the United States.  In November, Americans will go to the polls to either to choose a new president, or re-elect President Trump.  This spring, we are in the midst of primary season.  That is, the separate states and territories are holding primaries or caucuses to nominate the Democratic candidate for president.  In some states, they are holding elections for local and state offices at the same time as the primaries.  The COVID-19 crisis has caused numerous states who had elections scheduled for April to postpone them, or to expand the opportunity for mail-in absentee ballots, due to the risk of spreading the virus.  Wisconsin is not one of those states.

Wisconsin scheduled its election to be held on April 7, 2020 long before the current crisis. More well over a month, the Governor has been calling on the Wisconsin Legislature to postpone the election, or make it easier for people to cast mail-in absentee ballots.  The Legislature has not responded.  Meanwhile, because so many election workers are over the age of sixty, a category who is at a high risk of developing the severe symptoms of COVID-19, the rise in absentee ballots as well as opening the polls for the regular in-person voting, threatened to overwhelm Wisconsin election officials.  Many voters requested absentee ballots in the last month leading up to Election Day.  It was almost certain that thousands of applicants would not receive their absentee ballots before Election Day.

This is the situation where the U.S. District Court found itself.  Three different lawsuit lawsuits were filed to do something about the Wisconsin election, such as extending deadlines, and waiving witness requirements for mail-in ballots.  Under Wisconsin election law, ballots had to be received by April 7th in order to be counted.  Wisconsin law also gave the municipal canvassing boards until April 13th to certify the vote count to the counties.  The District Court, in a decision entitled Democratic National Committee, et al., v. Marge Bastelmann, et. al., issued a preliminary injunction which, among other things, permitted absentee ballots received by April 13th to be counted, regardless of when the ballots were postmarked.  A party submitted a request to stay the preliminary injunction (i.e. to prevent the injunction from taking effect) to Supreme Court Justice Brett Kavanaugh (submitting such a request to a Justice on the Supreme Court is normal Court procedure), who in turn referred the matter to the full Court.  In a decision that pitted the five conservative members of the Court against the four liberal members, the majority issued a per curiam opinion, meaning the five member majority spoke as one, granting the stay of the preliminary injunction.  The sole issue for the Court was whether the District Court overstepped its authority by permitting ballots postmarked after April 7th to be counted so long as they were received by April 13th.  That is, the Supreme Court permitted Wisconsin to continue to count ballots received by April 13th, so long as they were postmarked by Election Day, April 7th.

Many liberal pundits saw the Supreme Court's action as one of intentional voter suppression, aimed specifically at helping the Republican Party, and in particular Donald Trump, stay in power once the November presidential and congressional elections come around.

I read the Supreme Court's decision much differently.

Let me be clear, I am all in favor of taking action now to prepare for the November elections, and the possibility that the current crisis may still be around.  I, too, have some fear that Trump and the Republican Party may take some action that may negatively affect the elections.  After all, not only did Russia interfere in his favor in 2016, Trump has already been impeached for seeking Ukrainian interference in the 2020 election.  The only thing that saved him from removal was the fact that the Republicans control the Senate, and Senate Majority Leader Mitch McConnell made sure that the Senate trial was a farce with no witnesses being called at all.  I would love it if state legislatures acted now to address the November elections to expand the availability of early voting and mail-in voting just in case the coronavirus still has us sheltering in our homes at that time.

But let's be clear on some things.  Trump has no authority to do anything directly to change, postpone or cancel the November elections.  There is nothing in the Constitution, or any of the numerous federal statutes addressing the president's emergency powers that grant the president such authority.  How the November elections are to be run is a matter for the people of the several states, through their legislatures, to address.  Many Trump opponents fear he will nonetheless attempt to use the declaration of a national emergency to seize a power that is otherwise not granted to the presidency.

Yet, as I read the U.S. District Court decision, I noticed that the very thing that Trump's critics fear that he will do in the abstract, grab power that he doesn't have, is exactly what the District Court did.  In its opinion, the District Court essentially states, "There is a crisis out there that nobody is doing anything about, so I'm going to create a solution, whole cloth, despite their being no statute or constitutional provision giving me the authority to do so."  It is quite amazingly.  The decision is bereft of any citation to law or constitutional provision giving it the authority to interfere and fundamentally alter Wisconsin's election framework.  The District just says, "Voting is a fundamental right, so here's what you need to do."  That is, the District Court just assumed that it had the authority to make its own deadlines and impose them upon Wisconsin's state government as a whole.  Put another way, the U.S. District Court thought that it could act as if it were a legislature.

Again, if Trump had done this, those very same liberal pundits complaining about the Supreme Court would be up in arms over Trump's action.

Our Constitution engages in a dispersion of powers among not only the three branches of government, but also between the federal government and the government of the several states.  This is known as separation of powers when it refers to the three branches of the federal government, and federalism when it refers to the division of powers between the federal government and the governments of the several states.  They are the fundamental principles upon which our system of government is created, in order to avoid any one part of the government becoming too powerful and acting tyrannically.  In this regard, a court that oversteps its authority can be just as tyrannical as an authoritative executive.  The Supreme Court was absolutely within in prerogative to slap down a decision by a U.S. District Court that overstepped its power.

The lesson is two-fold.  First, all branches of government need to respect the limits placed on their authority by the Constitution.  Second, the state legislatures, as the law-making branch of government in their respective states, need to address the November elections now, before it becomes a crisis where well-intentioned courts will feel obligated to step in, regardless of the limits on judicial power.

By:  William J. Kovatch, Jr.

References

For general facts about the virus, I referred to the World Health Organization's website.

Information can also be found on the Centers for Disease Control's website.

The U.S. Supreme Court Decision can be found here:  Republican National Committee, et al., v. Democratic National Committee, et al., Slip Op. Crt. No. 19A1016 (U.S. Supreme Court April 6, 2020).

The U.S. District Court decision can be found here:  Democratic National Committee, et al., v. Marge Bostelmann, et al., Slip Op. Crt. No. 20-cv-249-wmc (W.D. Wis. April 2, 2020).

Johnson, Jake, "'One of the Most Brazen Acts of Voter Suppression in Modern Times,' as US Supreme Court Blocks Absentee Ballot Extension in Wisconsin," Common Dreams (April 7, 2020).

Liptak, Adam, "Supreme Court Blocks Extended Voting in Wisconsin," The New York Times (April 6, 2020).

Litman, Leah, "The Supreme Court's Wisconsin Decision Is a Terrible Sign for November," The Atlantic (April 7, 2020).

Perrett, Connor, "'Voter suppression on steroids': Wisconsin's decision tohold the state's in-person primary amid the COVID-19 pandemic will suppressvoters, advocates warn," Business Insider (April 7, 2020).

Stern, Mark Joseph, "The Supreme Court's Wisconsin Election Decision is 2020's Bush v. Gore," Slate (April 7, 2020).

The President Cannot Act Inconsistently with the Asylum Law as Written and Passed by Congress

US District Court Judge Jon S. Tiger issued a nationwide injunction preventing the Trump Administration from implementing a Presidential Proclamation wherein the President attempted to bar aliens who enter the United States through Mexico at a point other than an official port of entry from applying for asylum. “Whatever the scope of the President's authority,” the Judge expressed, “he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden." Specifically, through the Proclamation, Trump directly contradicted the plain language of section 208(a)(1) of the Immigration and Nationality Act, which states, “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 235(b).” (Emphasis added).

In response, the Departments of Justice and Homeland Security issued a joint statement, arguing that the Supreme Court had ruled over the summer that the President had the authority to suspend entries of a class of aliens when the President finds that to be in the national interest. Moreover, asylum is a discretionary form of relief, and not an entitlement even if all of the legal requirements are met. 

The Departments of Justice and Homeland Security are being misleading.  It is true that the Supreme Court upheld President Trump’s travel ban finding that the President has broad discretion outside of the borders of the United States to suspend a class of aliens from entering the United States if the President finds it is in the national interest. This was done in the context of an Executive Order wherein the President found that certain countries did not provide sufficient information about their nationals to permit the United States to vet those individuals properly before allowing admission. Nationals from such countries were thus temporarily banned from entering the United States.  That is, the President took action that applied outside the United States, or at a port of entry before an individual became subject to US jurisdiction, to prevent that individual from physically and legally stepping foot on US soil. 

The situation is different with respect to those who enter the United States by crossing the border surreptitiously between official ports of entry. While theoretically, under the Supreme Court’s precedent, the President could suspend the legal entry of Hondurans or other Central Americans, that only prevents an individual from being admitted through of a port of entry after being inspected by a Customs and Border Patrol agent. For a person who is actually on US soil, whether that happened legally or illegally, the protections of the US Constitution and US law apply. At that point, the President’s power is far more restrained.  He cannot then act in direct contravention of a law passed by Congress. Put simply, outside the territory of the United States the President has broad discretion on immigration matters, but inside the United States he does not. 

With respect to the grant of asylum itself, it is true that section 208(b)(1)(A) does state that the Attorney General or Secretary of Homeland Security “may grant asylum” to an individual meeting the legal requirements. The use of the word “may” does make the grant of asylum discretionary. But what exactly does discretionary mean?  For one, the decision cannot be arbitrary and capricious. There has to be reason behind the decision. Discretion involves evaluating all of the facts and circumstances of a case, and fashioning a reasonable outcome. 

Thus, it is possible for an applicant to be denied asylum for breaking the law. But the fact that a person may have broken the law must be weighed against the level and severity of danger from which the applicant was attempting to escape. 

Discretion does not mean applying a blanket rule to all situations. Applying a rule that no one who enters the United States illegally, without weighing all of the circumstances in that person’s case, is an abuse of discretion. It leaves no choice to the decision-maker to craft a reasonable outcome. 

Moreover, the law provides a list of factors that disqualify a person from receiving asylum. These factors range from a conviction of a particularly serious offense to the individual being a danger to the security of the United States. In addition, the Attorney General may impose further restrictions by regulation. But, those limitations must be consistent with the law. Thus, an argument exists that a regulation cannot impose a limitation that is inconsistent with the statute as written, such as prohibiting a person who has entered the country illegally from applying for asylum. 

The President has been consistently attempting to broaden his authority over immigration matters. This stems from his frustration over members of his own party, who have controlled both houses of Congress since the beginning of his term, to pass immigration reform satisfactory to the President. With the Democrats ready to assume power in the House of Representatives, gridlock over immigration is likely to increase. This will only create more incentive for the President to attempt to grab more power through purely executive action. The courts will therefore remain a key institution to limit the President and uphold the doctrine of Separation of Powers. 

By: William J. Kovatch, Jr. 

The Senate Must Vote on Judge Garland's Nomination

While pursuing Facebook yesterday, I came across a post from Michelle Malkin on President Obama's nomination of Judge Merrick Garland to the Supreme Court. The post was a link to an article in the Conservative Review simply entitled, "What Conservatives Need to Know About Merrick Garland."  When I clicked the link, I was shocked to find a one word answer as the first paragraph of the article. It simply said, "Nothing."

Author Brian Darling's analysis didn't get much more informative. The crux of his argument was that because Judge Garland was nominated by President Obama, he is a liberal and will tip the balance on the Supreme Court in favor of the liberals. 

I was shocked because even though I consider myself a Republican with conservative leanings, my reaction to President Obama's pick was far different. I was surprised by how non-controversial the appointment would be. 

Judge Garland has sat on the U.S. Court of Appeals for the DC Circuit since 1997.  He is currently the Chief Judge.  Because of the location of the DC Circuit, it is the court that tends to hear cases involving Federal policy most often. The court is often considered a stepping stone to the Supreme Court. 

In addition, Judge Garland is a former prosecutor who is 63 years old. Not only has he worked in law enforcement, he is not likely to stick around the Supreme Court for a very long time. 

At this point, conservatives point to two cases in which he was involved to ring the alarm bells that he will rob us all of our gun rights. The first is the case that overturned the District of Columbia's gun control law. The case was decided by a three judge panel, and Judge Garland voted for the case to be reheard en banc, which means in front of all of the judges of the DC Circuit. 

The second was a case where Judge Garland agreed that the FBI could retain gun purchase records for six months to ensure that a computerized background check was working. 

Neither case hardly says anything about the Judge's views on the Second Amendment. Yet it is enough that Judge Garland acted in a way displeasing to the NRA for conservatives to mobilize opposition by engaging in the Second Amendment fear mongering. 

Conservatives are mourning the loss of Justice Antonin Scalia. The prospect that his seat on the Supreme Court could be filled by an Obama appointee is just devastating to them. Thus, Senate Majority Leader Mitch McConnell took the unprecedented step of announcing that there would be no hearings on any Obama nomination. Instead, the choice would be left to the new president. President Obama has countered with the nomination of a highly respected jurist, who is not likely to stay around for a very long time. The result is that Senate Republicans look far worse than just merely obstructionists. They look like whiny, petulant children. 

One of the most frightening characteristics of the Tea Party movement, and its influence on the Republican Party, has been the uncompromising willingness to shut down normal government functions in the name of promoting conservatism. Faced with very little on the record to challenge a nominee who appears to be eminently qualified, the conservatives resort to fear mongering. Senate leaders should not play this game. Rather, they should do their constitutional duty of allowing the full Senate to give advice and consent by holding hearings on Judge Garland, and sending his nomination to the floor for a vote.