Month: December 2023

Year-End Wrap Up of Section 3 News

I’ve recently wondered what I would have written about if it weren’t for all the developments in the attempts to exclude President Trump from the ballot under section 3 of the Fourteenth Amendment. Here’s what happened (so far) since the Colorado Supreme Court affirmed the trial court ruling that Trump had engaged in insurrection but reversed the holding that the President is not an officer of the United States and thus declared Trump ineligible for reelection:

  1. Yesterday, the Michigan Supreme Court denied an application for leave to appeal the Court of Appeals ruling that as a matter of Michigan law the Secretary of State must place Trump on the primary ballot regardless of whether he would be disqualified from holding office.
  2. Also yesterday, the Colorado Republican Party filed a petition for writ of certiorari seeking U.S. Supreme Court review of the Colorado Supreme Court’s decision excluding Trump from the primary election ballot in that state.1

A significant part of the public reaction has been the view that the voters rather than the courts should be the ones to decide if Trump is President again.2 My problem with that is that either you apply the Constitution, or you don’t. You cannot pick and choose which provisions you agree with (like, for the media, freedom of press) and ignore others (the Second Amendment?). I’m not a fan of term limits precisely because they limit the ability of voters to choose their preferred candidates, but that doesn’t mean that I think that the Twenty-second Amendment should be ignored to allow two-term former Presidents Clinton, Bush, or Obama to run again.

Jay Bohn

December 28, 2023

  1. I thank CBSNews.com for the link to the petition. ↩︎
  2. See, for examples, the reaction of the other Republican candidates, as here reported by ABCNews.com and Star-Ledger’s “Friendly Fire” contributors on NJ.com. ↩︎

Redeeming the Republican Party from Trumpism: All I Want for Christmas is a Haley-Christie Ticket

Just over a year ago I called for the Republican party to nominate someone other than Donald Trump as its standard bearer in the 2024 presidential election. A year later and a few weeks before the first delegate selection contests, I propose that that someone be a team ticket of former South Carolina Governer and U.N. Ambassador Nikki Haley and former New Jersey Governor and United States Attorney Chris Christie.

The most important thing is not that the nominee be Haley over Christie or vice-versa, but that it be either of them over Trump.

I say a team because I believe that will better merge their strengths than having the vice-presidential candidate being just an also-ran. It may also make it more palatable for Christie who truly believes that he would be the better President.

As I see it, Haley should focus on foreign policy while Christie handles legal affairs, government integrity, and judicial appointments. (Nominees for all court vacancies should be always ready to go.)

As a team it would have a captain and that would be Haley, but I would like to think that as patriotic Americans with the country’s best interests in mind, they would both see the value of this arrangement.

Jay Bohn

December 25, 2023

Colorado Supreme Court’s Anderson v. Griswold Decision Tees Up U.S. Supreme Court Showdown on Whether Section 3 Will Be a Roadblock or Speed Bump in Trump’s March to Renomination

On Tuesday the Colorado Supreme Court issued its much-anticipated decision in Anderson v. Griswold, the case in which a group of Colorado voters is seeking to bar President Trump from appearing on Colorado’s primary ballot based upon the argument that his conduct on January 6, 2021, constituted “engaging” in an “insurrection” rendering him ineligible for the office of President under section 3 of the Fourteenth Amendment. The Colorado Supreme Court affirmed much of the trial court’s decision including several state-law procedural issues and the critical conclusion that the attack on the Capitol was indeed an insurrection and that Trump “engaged” in that insurrection but reversed the legal conclusion that because the President is not an “Officer” of the United States, the disqualification did not apply to him. The upshot is that, barring action by the U.S. Supreme Court, Trump’s name will not appear on Colorado’s Republican primary ballot.1

The Trump campaign has vowed an immediate appeal.2 While there probably is no alternative, there is the risk that doing so could result in an affirmance binding upon all courts in the country as to the federal issues. (At present the ruling is only binding in Colorado state court.) Of course, we really do need a national answer and sooner, rather than later.

So far, I have only had the chance to skim the opinions. (The vote was 4-3, with a majority per curiam decision and three separate dissents.) The Court disagreed with the positions that I have expressed that the President is not an “Officer” of the United States and that the presidential oath is not one to support the Constitution of the United States. My initial impression is that the reasoning on those two points is more pragmatic than legalistic. It reminded me of the Supreme Court’s reasoning in Moore v. Harper, 600 U.S. 1 (2023), in which the Court voted 6-3 to hold that “the Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”3 Thus, I would not be surprised if the Supreme Court ultimately upholds the Colorado decision along these same lines.

Jay Bohn

December 21, 2023

  1. I have written rather extensively on the case and Section 3. See Trump Disqualification 1: Initial Thoughts on CREW Lawsuit, Trump Disqualification 2: Is the President an “Officer” of the United States?, Trump Disqualification 3: Did Trump Take an Oath to “Support” the Constitution of the United States?, Trump Disqualification 4: Did the Events of January 6, 2021, Amount to an “Insurrection”?, Trump Disqualification 5: Did Donald Trump “Engage” in the Insurrection?, Trump Disqualification 6: What Are Others Saying?, Trump Disqualification 7: Final (For Now) Thoughts, Trump Disqualification 3 Redux: Whether Trump Took an Oath to “Support” the Constitution Getting Some Attention, Courts Must (Ultimately) Decide Trump’s 14th Amendment Eligibility, Trump Wins First Round in Disqualification Fight, It is Dangerous to Rely Upon Media Explanations for Legal Issues, Michigan Follows Minnesota In Rejecting Lawsuit to Keep Trump Off Primary Ballot, and Colorado Court Rules That Trump “Engaged in Insurrection,” But That The President Is Not an “Officer of the United States,” So Trump Not Disqualified. ↩︎
  2. Although theoretically the U.S. Supreme Court could refuse to hear the case, I cannot imagine its refusal to do so. It is a matter of great importance, and I am aware of no other case likely to result in a merits decision any time soon. (All other decisions, such as in Minnesota and Michigan, have been made for procedural reasons.) ↩︎
  3. See my earlier post Furor Over “Independent State Legislature” Ignores Constitutional Text for an explanation of the issue. ↩︎

Hoping for Victory Next November, Trump Tries to Run Out the Calendar on Criminal Cases Against Him

The big news last week in the criminal case against President Trump arising from the events of January 6 was the special counsel’s request that the Supreme Court take over the appeal pending in the U.S. Court of Appeals for the D.C. Circuit. It is a highly unusual move, but it’s a highly unusual case.

As with the criminal case in Georgia, Trump claims that he is absolutely immune from prosecution because, he further claims, the conduct for which he is being prosecuted was part of his core presidential duties. D.C. District Judge Tanya Chutkan ruled against the immunity claim, and Trump appealed to the D.C. Circuit.1 Besides hoping for an appellate victory, this strategy inevitably delays the criminal trial which Trump wants to occur, if at all, after the election. If Trump wins, we will see renewed arguments about immunity for a sitting President and efforts to make use of presidential power to subvert the prosecution, if not an outright self-pardon. If he loses, he will blame the criminal trials as “election interference.”

Indeed, we are seeing the election interference claims already as the special counsel sought not only the expediting of the circuit appeal but he has asked the Supreme Court to expedite the consideration of the petition for writ of certiorari before judgment. That motion was granted, and Trump’s response to the petition is due on Wednesday.

I think that the American people are entitled to the completion of at least one of the criminal trials before the election (before the Republican convention would be even better).

Jay Bohn

December 18, 2023.

  1. Normally one cannot immediately appeal interlocutory trial court decisions as everything is saved for an appeal from an adverse final judgment, but special rules apply to claims of immunity because, even with an acquittal, the damage would be done by the very fact of having to be tried. ↩︎

Lots to Talk About in Supreme Court’s Laufer Non-Decision

Last week the United States Supreme Court issued the first decision in an argued case for the 2023 Term, Acheson Hotels, LLC v. Laufer (docket listing | argument audio | argument transcript | opinions). The substantive merits of the case were never before the Court. The Court agreed to hear the case to decide a preliminary jurisdictional question (standing1), but instead vacated the decision below and ordered the case dismissed on another procedural ground, mootness.

Under regulations implementing the Americans with Disabilities Act of 1990 (ADA), P.L. 101-336, 104 Stat. 327, 42 U. S. C. §12101 et seq., hotels are required to post information on their websites regarding whether accessible accommodations are provided. The regulations have been held to create a private right of action under which a plaintiff can obtain an injunction requiring a hotel to comply with the regulation and obtain an award of attorney fees.

The plaintiff in the case, Deborah Laufer, a self-described “tester,” scours the internet to find noncompliant hotels and then sues them, over 600 to date. Laufer has no intent to stay at any of the hotels; the most charitable view of her activities is that she is a true believer seeking to enforce the mandate of the ADA.2 The defendant in this case did not settle and won at the district court level on the basis that Laufer lacked standing to bring the case as her lack of intention to stay at the hotel regardless of its disability accommodations (or lack thereof) meant that she did not suffer a concrete injury and lacked standing. The court of appeals, however, reversed. The Supreme Court granted certiorari to resolve the split between circuits.3

However, between the grant of certiorari and argument in the case, Laufer dismissed the underlying complaint with prejudice and has stated that she will file no more such cases. Her stated reason for doing so was a disciplinary action taken against an attorney who represented her in some of the cases.4 Her attorney then filed a “suggestion of mootness,” urging the Supreme Court to dismiss the appeal (and incidentally keep the First Circuit’s decision effective as precedent.)

The Supreme Court did not immediately dismiss the appeal but said it would consider the issue at oral argument. Ultimately both standing and mootness implicate whether federal courts have subject matter jurisdiction, and the Court can decide the questions in either order.

Ultimately, seven justices voted to dismiss the appeal on mootness grounds. Justice Barrett’s opinion for the Court indicated that the Court was not convinced that Laufer’s actions were taken to evade Supreme Court review but warned that the Court might exercise its discretion differently in a future case. It was not all tears for the defendant, however. The Court also vacated the judgment of the Court of appeals (called Munsingwear vacatur), removing the binding (in the First Circuit) effect of its decision.

Two of the justices did not join the opinion but concurred in the judgment. Justice Thomas would have decided the standing question first and would have found that Laufer lacked it. Justice Jackson, as she has in prior opinions, questioned the use of Munsingwear vacatur.

The Laufer decision is of course instructive on the relationship between mootness and standing, and Justice Jackson’s discussion of Munsingwear vacatur is thoughtful.

Many commentators heaved a sigh of relief when the Court dodged the standing question and I’m sure that they will tell you that the Department of Justice just does not have the resources its needs to enforce the ADA as it should (or perhaps they will complain that the DOJ is mistakenly applying its resources to other, less important, priorities). But I am concerned about private parties using a regulation to assert a private right of action for the purpose of private enforcement of the law. It is a form of vigilante justice that is particularly problematic where the plaintiff personally suffers no injury. It is just another example of the government imposing on private parties the right or obligation to do its job, just like when business owners are sued because they did not supplement the police to prevent a criminal act or a university is supposed to act like a court to determine if one student sexually harassed or assaulted another.5

The opinions are not all that long and are all well worth reading.

Jay Bohn

December 14, 2023

  1. I discussed the concept of “standing” in a bit of detail here. ↩︎
  2. Another motive could be money. Her attorneys do not give the hotels pre-litigation warning and a chance to come into compliance. The often file the lawsuit and then offer to settle, demanding a $10,000 attorney fee. Some of this money seems to have found its way to Laufer’s family. Slip op. at 2. ↩︎
  3. For the most part federal appeals courts have geographic jurisdiction over decisions made by district courts in their respective circuits. Because the Supreme Court is the only tribunal that can review court of appeals decisions, a disagreement between circuits on a principle of law results in federal law being different in different parts of the country. As the Court’s opinion states: “Laufer has singlehandedly generated a circuit split. The Second, Fifth, and Tenth Circuits have held that she lacks standing; the First, Fourth, and Eleventh Circuits have held that she has it.” ↩︎
  4. It could of course be that she was trying to leave the filed open for other testers to continue to file suits, at least in hospitable circuits. ↩︎
  5. That is a whole other topic, especially when the government mandates that the university not afford the accused party rights to which a criminal or even civil defendant would be entitled. ↩︎

Will Another “Temporary” Extension of the Corporation Business Tax Surcharge Be “Fool Me Thrice”?

You know the saying, “Fool me once, shame on you; fool me twice, shame on me.” The Star-Ledger is now seeing if the public will be gullible a third time.

In 2018 New Jersey enacted a “temporary” surcharge to the corporate business tax. During the COVID pandemic, to address the revenue shortfall that never actually occurred, the surcharge was extended. It currently expires at the end of the year, and Governor Murphy has publicly indicated that he will let it expire. In its desperate efforts to keep on taxing, the Star-Ledger has urged that the surcharge be extended and dedicated to NJ Transit. I wrote about this issue last month.

Yesterday NJ.com reported on a campaign to do just that, and that one state legislator has introduced a bill, A5878 (text not yet available), to further extend the surcharge until December 31, 2025, and require the amount collected from the surtax be dedicated to specific (but unidentified) purposes. If indeed the intended purpose is NJ Transit, are its needs going to be satisfied in two years?1

It’s good to remember this fact about a legislative dedication of revenue to a specific purpose: what one legislature gives, another can take away (usually in the budget). Ask New Jersey’s municipalities, which have been waiting for the restoration of “their” energy tax receipts for decades.

I also find it interesting that on the same day NJ.com ran an article about New Jersey’s shrinking tax collections which specifically mentioned the expiration of the surtax.2

Jay Bohn

December 11, 2023

  1. As I have previously commented, “I oppose dedicated funding; every government agency should have to make the case for taxpayer money on a regular basis.” ↩︎
  2. Far from being the fiscal disaster used to justify emergency borrowing, the COVID pandemic and the massive federal spending it brought resulted in enormous revenues that the Legislature unfortunately could spend fast enough even though anyone could, and many (including yours truly) did, tell them it was just a blip.)) For balance I guess the article also mentions the gimmick known as StayNJ. ↩︎

N.J. Appellate Division Addresses Tyler Issues in Published Opinion

Back in the spring I reported on a Supreme Court case, Tyler v. Hennepin County, Minnesota, that has the potential to disrupt substantially the way in which New Jersey’s municipalities enforce the collection of real estate taxes. A delinquent property owner who does not pay outstanding taxes and interest faces the possibility of loss of all equity. The Supreme Court ruled that the loss of the equity in the property over and above the amount actually due was an unconstitutional taking. Weeks later I posted about an unpublished appellate case that suggested that the municipality could be the entity required to compensate the property owner for the taking.

On Monday the Appellate Division issued a published opinion relying in part on Tyler to affirm the trial court’s grant of the property owner’s application for relief from the tax foreclosure judgment and deciding that Tyler had, at least, pipeline retroactivity (it applies to cases pending (“in the pipeline”) when it was decided).

In a footnote the appellate court’s opinion stated that a bill had been introduced to reform New Jersey’s law to comply with Tyler. I presume that it will be among the many bills approved in the lame duck session. I wish that the professional media would provide more coverage of this important issue.

Jay Bohn

December 7, 2023

House of Representatives Not Required to Await Criminal Conviction Before Expulsion of George Santos

The United States Constitution authorizes either house of Congress to expel one of its members by a two-thirds vote. Last week the House of Representatives invoked this authority to terminate the brief congressional service of Representative George Santos. During his one term the media portrayed (perhaps not inaccurately) Santos as a liar and a thief and he is facing federal criminal charges. The House Ethics Committee investigated, and its report apparently (I will admit that I have not sought it out, so I am relying on media reports) found serious charges against Santos to be true.

Why then is there this sudden bout of handwringing about the push to expel him before the criminal proceedings have concluded? The power to expel a member is not contingent on a prior criminal conviction or even the commission of a crime. Expulsion is an extreme act, and one would hope that the member is given due process before it is invoked, but the process that is due is not a criminal trial. There was an investigation, and Santos had the opportunity to address the charges before the House. (This is entirely different from mandating suspension of a public employee as the result of an indictment.)

I can appreciate that a criminal defendant has the right to remain silent and is not required to mount any defense, certainly not before the government has shown its cards at trial. This is the basis of the saying that a defendant is presumed innocent until proven guilty. But the fact that actions warranting expulsion from Congress or that may give rise to civil liability are also criminal offenses does not mean that the person accused of committing them is entitled to have the criminal charges resolved before the issues are considered in other fora.

Surprisingly missing from the current conversation is the consideration that a certain member of the Senate is facing serious criminal accusations (for a second time) and many in his own party have called for his resignation. The House’s decision to expel Santos before trial perhaps weakens the arguments against expulsion of this senator before his own trial. I just wonder if and how that consideration figured in each representative’s decision on how to vote last week.

Jay Bohn

December 4, 2023