Category: Government/Politics

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

Star-Ledger Seeks to Assure that There is no Such Thing as a Temporary Tax Increase.

It appears that the Star-Ledger Editorial Board firmly believes in the First of the Ferengi Rules of Acquisition: “Once you have their money, you never give it back.” They are very upset that New Jersey would keep its word that a “temporary” tax increase should be allowed to expire, albeit a few years late. The case in point is the surcharge in the corporate business tax which the Star-Ledger now seeks to extend and dedicate to NJ Transit.1

Apparently, NJ Transit is the budgetary equivalent of the U.S. Postal Service in that it costs more to run than it can generate in charges for its service. (Shockingly, fares only account for 42% of its revenue but, the editorial explains, higher fares will mean fewer riders; a situation with which newspapers have become familiar.)

The editorial justifies the tax increase (I’m sorry, it just extends a prior increase, so it’s not a new one2) by saying it only affects 2% of all businesses in New Jersey or, as Peter Chen remarks, they will only pay “a little” more in taxes. It’s all one big “someone else is paying” argument.

Jay Bohn

November 30, 2023

  1. A few months ago, I posted about Tom Moran’s editorial advocating the extension. It was also mentioned in an October post. ↩︎
  2. This is in effect one of the arguments. The Star-Ledger quotes Democratic candidate for governor Steve Fulop as arguing that the surcharge should be continued “because it’s been normalized within the balance sheets of these companies after having it for four years.” ↩︎

Is There Such a Thing as Election Fraud After All?

I become concerned when votable ballots leave a polling place as the ballots can then be marked or observed by someone other than the voter. An individual voter’s reason for a particular vote is a personal matter, as long as the vote is not outright sold. This is less likely when the ballots are marked only in an official polling station as the vote buyer cannot be certain that a vote seller has actually voted in accordance with the deal. (The same concerns do not necessarily apply to in-person early voting as there is no need for the ballots to leave the polling place between distribution and collection.

Sometimes the inability of the voter to get to the polls for election day (or any early voting period) makes it necessary to run the risk (which counsels for such mechanisms as inner envelopes and controls over who may “bear” the ballot from the voter to the collections site (or mailbox). I do not oppose absentee voting for those who for a serious reason cannot vote in person.

It is quite another thing to permit “no excuses” absentee voting and, even worse, to make that the default mechanism.

Opinions masquerading as news articles that cover legislative proposals governing absentee voting always repeat, as an article of faith, that there is little to no election fraud and so those seeking ballot security must simply be seeking to deny others the right to vote.

But there is election fraud. Recently a Connecticut judge invalidated the Democratic mayoral primary in Bridgeport, citing, in part “video evidence showing multiple people shoving stacks of ballots into drop boxes.”

In New Jersey the Paterson City council president has been charged with vote-by-mail fraud and the State has alleged that his associates “’stole ballots from residential mailboxes,’ tossing several ‘that did not cast a vote for their candidate’ in the trash.” The charges are just allegations at this point, but you would think those who shout the loudest about protecting the right to vote would want to make sure that it could not happen.

Jay Bohn

November 23, 2023

Colorado Court Rules That Trump “Engaged in Insurrection,” But That The President Is Not an “Officer of the United States,” So Trump Not Disqualified

On Friday Colorado district judge Sarah Wallace issued her decision in the only legal case seeking Trump’s removal from the ballot to come to trial (so far). It was certainly a win for President Trump, in that the court ruled that he is not disqualified, but only because the President is not an “officer” of the United States. Importantly, Judge Wallace found that Trump did “engage” in “insurrection.” It also appears that Judge Wallace agreed with what I have started to think of as my argument that the difference in wording of the presidential oath is significant. (See ¶313 and n. 19 at pp. 100-101.) CNN.com has a good article about the decision here.

While the organization behind the litigation has promised to file an appeal, I don’t see it going anywhere. They may be better taking the significant victory they got, a judicial declaration that the (sadly) likely Republican presidential candidate is an insurrectionist. (While I do not profess to know Colorado appellate procedure, I expect that you cannot appeal from a judgment in your favor, so unless the petitioners file an appeal, Trump may not be able to challenge that finding.)

I do want to comment on Trump’s argument that disqualifying him rather than letting the voters decide is anti-democratic. It certainly is, but no more so than the application of any other qualification for office, like being a natural born citizen at least 35 years of age. And it’s a little bit rich coming from someone who supported the racist-motivated “birther” challenges to the eligibility of Barack Obama.

Jay Bohn

November 20, 2023

Michigan Follows Minnesota In Rejecting Lawsuit to Keep Trump Off Primary Ballot

On Tuesday Judge James Robert Redford of the Michigan Court of Claims denied1 an attempt to exclude former President Donald Trump from Michigan’s Republican primary. As with the decision of the Minnesota Supreme Court about which I recently posted and which he cited (Minnesota’s order that is, not my post), Judge Redford ruled that being qualified for the office sought is not a requirement to be a candidate for a party’s nomination for the office.2

Judge Redford also rested his decision on another basis, that the plaintiff’s claim raises a nonjusticiable political question. Although the full explanation requires a lot more detail that I can provide at the present time,3 this is where I part company with Judge Redford.

Jay Bohn

November 16, 2023

  1. Thanks to Michigan Advance’s story on the decision for a link to the actual opinion. ↩︎
  2. Regardless of one’s feelings on whether that should be the law, absent a constitutional requirement otherwise, it is a position that the legislature of a state is free to take. ↩︎
  3. But see Courts Must (Ultimately) Decide Trump’s 14th Amendment Eligibility for a brief discussion of some thoughts about the question. ↩︎

Trump Wins First Round in Disqualification Fight

The first court with the merits of the argument that the Fourteenth Amendment disqualifies President Trump from serving again before it punted. This is not the Colorado case where a trial is taking place to determine if the secretary of state must exclude Trump from the primary ballot, but the Minnesota Supreme Court with essentially the same issue. Yesterday afternoon the court dismissed the case. Although the court did not issue a full opinion (one is promised) its order goes into some detail about the reasoning: that as a matter of Minnesota law a political party may nominate a candidate who is not eligible for the office being sought. The dismissal is without prejudice to the claims’ being brought with respect to the general election.

While the decision is at least a temporary win for Trump, it leaves open the possibility that there will be no Republican on the general election ballot in Minnesota.

Kudos to the CNN.com story for including a link to the order.

Jay Bohn

November 9, 2023

Tilting at (or for) Windmills

For a while now Governor Phil Murphy has been pushing for clean energy via wind farms to be built in the Atlantic Ocean. A Danish company, Ørsted, was given fast-track permits and a billion-dollar tax credit.

Opponents of the project had their own environmental arguments premised upon the effect of the development on marine life. (The pro side claimed that there was no evidence of harm, not a position that they would have taken with any other development, which would be required to prove that it was benign.)1

Last week Ørsted announced that it was going to abandon the project. The governor was furious (not least about the timing, a week before the entire Legislature is up for reelection, imperiling his Democratic majorities.)2 The Star-Ledger’s liberal and conservative columnists take different views: compare Tom Moran, “The offshore wind debacle has Republicans cheering job losses,” with Paul Mulshine, “Murphy energy plan is gone with the wind.” (both subscriber exclusives).

Governor Murphy says that Ørsted is in the hook to pay some $300 million and he has promised to “fight like hell” to keep it. Given the Garden State’s track record in negotiating with our neighbor across the Hudson, I wonder what New York’s share will be.

Jay Bohn

November 6, 2023

  1. I suspect, however, that the real reason was the impact of an industrial development within sight of shore. ↩︎
  2. “Developer cancels plans for 2 N.J. offshore wind farms. Outraged Murphy rips company.” See also “N.J.’s major offshore wind plans just imploded. Why it matters, what happens next.“(subscriber exclusives). ↩︎

Recent NJ.com Article a “Three-For”

An article I saw on NJ.com Monday is interesting for three reasons.

The article, “N.J. residents actually say yes to a tax hike if it’s spent on this, new poll says” (subscriber exclusive) states that 54% of State residents (according to one poll) support the further extension of a “temporary” corporate tax surcharge to provide funding for NJ Transit.1

First, the article’s title (headline) is phrased to entice the reader to click on it to find out what spending is entitled to support for a tax hike. I have previously complained about titles that do “not adequately convey what the article is about but instead serves as a piece of “click-bait” to excite the reader’s curiosity to go to the article (thus generating ad revenue).”

Second, I have also previously posted about this particular “temporary” tax increase and the Star-Ledger’s desire to make it permanent.

Third, many of the Star Ledger’s unlabeled opinion pieces have reflected support for a dedicated funding source for NJ Transit. As a matter of policy, I oppose dedicated funding; every government agency should have to make the case for taxpayer money on a regular basis.2

Jay Bohn

October 26, 2023

  1. No doubt that support derives from the fact that someone else (large corporations) is seen as paying the tax but the people responding to the poll will benefit. As I’ve said before, the government that robs Peter to pay Paul can always count on the support of Paul. ↩︎
  2. (Indeed, I suspect that the whole purpose of the poll (and perhaps the article as well) was to claim that there is public support for NJ Transit funding; must have been disappointed that the support was only at 54%. ↩︎

Trump Disqualification 3 Redux: Whether Trump Took an Oath to “Support” the Constitution Getting Some Attention

Last month I posted a series on the elements I saw as necessary to be established by those who seek to have Donald Trump declared to be disqualified from again serving as president under section 3 of the Fourteenth Amendment. This series was published in light of the pending petition seeking to exclude Trump from the Colorado primary ballot. (docket entries here)

My second element was whether Trump took an oath to “support” the Constitution given that the only oath of office he ever took was the presidential oath which requires one to “preserve, protect, and defend” but not “support” the Constitution. Recently I was told that I was one of the first, if not the first, to make this particular argument. That was rather surprising, but I have not been able to find it made earlier. Whether I am first or not, however, President Trump used it as part of a motion to dismiss the Colorado petition. (Other than timing, I have no evidence that Trump’s attorneys got the argument from me.)

So far, the petitioners do not seem to have responded to Trump’s invocation of that argument and it was not part of the judge’s Omnibus Ruling on Pending Dispositive Motions which was released last Friday.

Latest Existential Challenge to CFPB Appears to Fizzle

Not every bad policy is unconstitutional. The case in point is the funding mechanism for the Bureau of Consumer Financial Protection established by the Dodd–Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203), which prefers to call itself the Consumer Financial Protection Bureau (“CFPB“). When the 111th Congress created the agency, it tried to entrench its policy views against the possibility that a later (Republican) congressional majority or president would disagree with them. For example, as originally conceived, the agency is headed by a single director, removable by the President only for cause. Thus, when Donald Trump became President, he was not able to replace the Obama-appointed incumbent.1 This feature of the agency was declared unconstitutional in Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. ____ (2020).

The CFPB is not funded through the annual (and usually dysfunctional) budget process. It gets to requisition the funding it wants (up to a limit that it has never actually reached) from the Federal Reserve. Opponents of one set of its regulations, those relating to payday lending, used the funding mechanism as one of the bases for a challenge to the regulations. CFPB v. Consumer Financial Services Assn. (22-448).2

One part of Article I, section 9, of the U.S. Constitution, called the Appropriation Clause, provides: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .” The argument is that because the CFPB is not subject to the annual budget process like everyone else, its ability to call for money from the Fed is unconstitutional and this means it cannot validly promulgate the payday lending rules.

There’s really a lot wrong with this argument, starting with its disconnect from the actual text of the Appropriations Clause. There is no requirement of any annual process. Indeed, the only constitutional durational limit on an appropriation is the two-year maximum for an appropriation for the Army contained in Article I, section 8. Not every other part of the federal government goes hat in hand to Congress every year. These were two of the issues discussed at length at the Supreme Court oral argument on October 3, 2023 (audio | transcript). They didn’t even have time to get to the question of how the possible issue of the funding mechanism means that one particular set of regulations that it adopted is invalid.3

I don’t see the votes to sustain the Court of Appeals’ decision, so expect the CFPB to survive.

But not everything that is constitutional is good policy. This case generated a lot of amicus activity (non-parties who obtain permission to file briefs in the case), one of whom was former acting director Mulvaney himself. His brief, although somewhat tangential to the discrete issues to be decided, was replete with well-taken criticisms of the agency.

Jay Bohn

October 12, 2023

  1. In 2017 the first CFPB director, Richard Cordray, resigned as director in order to run for governor of Ohio. Immediately before leaving Cordray appointed CFPB chief counsel Leandra English to the vacant post of executive director with the expectation that she would continue as acting director. President Trump appointed his OMB director, Mick Mulvaney, acting director under different legislation. English was not successful in her subsequent lawsuit to claim the job. ↩︎
  2. The challengers actually won on this issue in the Court of Appeals, so the CFPB is the petitioner in the Supreme Court. ↩︎
  3. For more detail on the argument, if you don’t have time to read or listen to it yourself, read Amy Howe, Court divided over funding mechanism for consumer watchdog, SCOTUSblog (Oct. 3, 2023, 5:33 PM), https://www.scotusblog.com/2023/10/court-divided-over-funding-mechanism-for-consumer-watchdog/ ↩︎