Category Archives: Courts

The Judge Got It Wrong

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Matthew Whitaker, former Acting US Attorney General, disagrees with a Puerto Rico bankruptcy judge’s ruling regarding the Puerto Rico Electric Power Authority’s bankruptcy and the subsequent handling of the utility’s creditors. He wrote in his Fox Business op-ed that

[US District Judge Laura Taylor] Swain…concluded that special revenue bondholders do not hold a secured claim on current and future net revenues. As The Wall Street Journal explained in March, “A federal judge curbed Puerto Rico bondholders’ rights to the electric revenue generated by its public power utility.”
Furthermore, the ruling stated that the original legal obligation of the borrowers is not the face value of the debt, but rather what the borrower (in this case “PREPA”) can feasibly repay.

This is wrong. Whitaker is right. The borrower committed to repay what it borrowed, not what it might feel like repaying be able to repay in some speculative future.

This judicial error, though, has much broader implications than just the damage done PREPA’s creditors. Her ruling sets the ugly precedent that no borrower is liable for what he borrows, only for what he might be able to repay. That drastically altered risk terrain can only mean that lenders will be more reluctant to lend, particularly to lower income (and so with higher debt risk) folks and businesses, and that those lenders that do lend will do so only at markedly higher interest to account for the risk the amount they lend will not be recoverable in any guise, especially in the public—municipal—arena.

A Court Gets It Wrong

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Alabama’s legislature redrew its Federal House of Representative district lines, leaving the State with one black-majority district. The State’s courts objected and ordered the lines drawn, strongly encouraging a second black-majority district be created, since 27% of the State’s citizens are black. The State’s legislature sort of obliged, creating a second district with 40% of its voters being black.

A three-judge Federal panel (which The Wall Street Journal identified as a special three-judge district court) rejected the new districts. It’s on this point that I think the court got things badly wrong, and if the AP article is accurate, exposed the intrinsic racism in the way district lines are drawn.

The panel said that if Alabama’s legislature didn’t draw lines that suited the judges on the panel, that panel would draw the lines for them. It

ordered a special master and cartographer to draw new maps that comply with the Voting Rights Act in time for the 2024 elections, saying it would be futile to give the state Legislature a third chance to draw districts that didn’t disenfranchise Black voters.
“We do not take lightly federal intrusion into a process ordinarily reserved for the State Legislature. But we have now said twice that this Voting Rights Act case is not close,” the court said.

This is what our Constitution’s Article I, Section 4, says about that sort of thing:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof….

What the US Supreme Court ruled when Alabama’s original newly drawn districts got to it was that courts could, indeed, reject a legislature’s districting, but it did not rule that courts could draw the districts themselves—all courts may do is return the matter to the State’s legislature. This three-judge panel has no authority to draw its own districts or to designate party separate from Alabama’s legislature to draw them. All this panel can do is serially reject the legislature’s districts. Our Constitution has a solution for this, as well. The 14th Amendment, Article 2, is quite clear:

[W]hen the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

If Alabama lacks a court-approved set of districts, then all of its citizens (the 19th Amendment eliminated the restriction to “male inhabitants”) are denied their right to vote, and Alabama would lose all of its representation in Congress.

The intrinsic racism in districting “requirements”—including in the US Voting Rights Act which governs—is this AP summary of the panel’s ruling:

[T]he State should have two districts where Black voters have an opportunity to elect their preferred candidates. Because of racially polarized voting in the state, that map would need to include a second district where Black voters are the majority or “something quite close,” the judges wrote.

The only racial polarization in voting is the creation of the Voting Rights Act and the several courts’ rulings that insist certain races of US citizens should get special treatment in voting. Either all American citizens are equal under our Constitution and our laws, or we are not. To insist that some races must be treated differently in our voting laws can only be racist.

As the Supreme Court has ruled, more than once, Eliminating racial discrimination means eliminating all of it.

Full stop.

Impeaching Joe Biden

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I’ll leave aside, for this post, concerns about the degree of wisdom of impeaching President Joe Biden (D) when there is no hope of the Senate seriously considering the matter during the ensuing trial, much less getting a serious vote regarding conviction or acquittal.

The question here is whether the House can impeach Biden (or any House impeach any President) for wrongs committed before he was in office as President.

House Republicans have floated launching an impeachment inquiry against President Biden amid newly surfaced allegations that suggest his involvement in the business dealings his son, Hunter. But can congressional lawmakers initiate the use of that constitutional tool for alleged treason, bribery or high crimes and misdemeanors that transpired before holding the office of the presidency?

Alan Dershowitz says,

The answer is clear. No one knows.

I beg to differ. Here’s what Article II, Section 4, of our Constitution says:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Nowhere in that Article, nor anywhere else, does our Constitution define high Crimes and Misdemeanors. Those are whatever the House wants them to be, and more concretely, they’re whatever the Senate agrees with the House on and votes to convict.

Additionally, that lack of specificity regarding high Crimes and Misdemeanors necessarily includes lack of specificity surrounding when the behaviors occurred. Nor are there any timing constraints in Article I, Section 2 (regarding the House’s power of impeachment), or in Article I, Section 3 (regarding the Senate’s power to try impeachment cases), regarding those behaviors.

And, in any event there is no recourse for an impeachment and conviction: that outcome is unappealable.

I claim, then, that the answer is, indeed, clear. The House can impeach a President for any reason it wishes. But in the present case, such a move would be, in the words of a Senator of some years, a dumb idea.

We the People, now knowing better, shouldn’t reelect Biden. The House should move to impeach only on the basis of Biden’s current, in-office misbehaviors, and even then it should move only when there’s a serious chance that the Senate would conduct a serious trial. Impeaching absent that Senate seriousness would, at best, be a waste of time.

Conducting the impeachment inquiry that Speaker Kevin McCarthy (R, CA) is considering would be a very good idea. That would get the information regarding Biden’s current misbehaviors in front of We the People in time for us to consider it as we cast our votes in 16 months, even if it would be unlikely to convince Biden’s Progressive-Democratic Party Senate syndicate to take the matter seriously.

A Bogus Beef is Swatted

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When Congress passed and President Joe Biden (D) signed the recent debt ceiling bill, one of the items included was a requirement for construction on the Mountain Valley Pipeline to proceed to completion and for the pipeline to begin operation. In conjunction with that, the bill removed from lower courts their jurisdiction over questions  regarding the natural gas pipeline.

The Fourth Circuit, when “environmentalists” got their cases to it, blocked construction while it sorted out whether it could rule on the matter.

The Supreme Court has sorted the matter out for the Fourth Circuit, at least temporarily: the pipeline will be completed with no further delay; the Court has lifted the Circuit’s stay.

The “environmentalists'” beef was this, as paraphrased by The Wall Street Journal:

stopping legal challenges before the Fourth Circuit violated the separation of powers clause of the Constitution, in effect giving Congress the power to decide the outcome of judicial proceedings.

This would be risible, were it not so cynical. No judicial proceeding is being predetermined by Congress. What has been specified, as allowed under our Constitution, is the jurisdiction of courts below the Supreme Court; in this case, that lower courts do not have jurisdiction to hear cases involving the MVP. Nor have the courts as a whole been denied jurisdiction; such cases still can come before the Supreme Court, should that Court choose to hear them.

This Will Be Instructive

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Of course, Israel’s newly enacted judicial reform bill, limited in reform as it is, will go before Israel’s Supreme Court; an initial hearing is set for September.

Israel’s Supreme Court said Wednesday that it would hear a petition challenging the constitutionality of a judicial overhaul law enacted earlier this week, setting up a possible showdown between the court and the government.
The court, however, didn’t issue an immediate injunction, as petitioners had requested.

It will be instructive to see the Court’s ruling and how anxious those Justices are to hang onto their power—political, especially, as well as judicial.