CT Blue

A few thoughts on the legality of Trump’s emergency!declaration.

If we had the same quality of courts we had even 20 years ago, there would probably be little question that the declaration would not survive judicial scrutiny. But we live in a time when the court is very possibly a more partisan and ideological institution than it has ever been. Every once in a while Roberts will want to preserve his reputation by not going too far over the line, but in the end, decisions will be made consistent with the preferences of the judges, and not the law or the constitution. In all likelihood, while a lower court judge or judges may call it for what it is (after all Trump said out loud that he didn’t have to do it), but the Supreme Court is likely to duck the issue by calling it a political question, or by ruling that for one reason or another the plaintiffs bringing the case lack standing to object to the institution of a dictatorship.

The Democrats have been making the argument that if his declaration is upheld, the next president (if the dictator allows new elections during an emergency) can declare climate change an emergency, etc. That’s a good argument, and, who knows, may actually give Roberts pause, but I doubt it. I think we’re getting into an era where the courts will begin implicitly ruling that IOKYAR, but not if you’re a Democrat. It’s easy enough to draw distinctions when you are playing with standing rules or the political question doctrine. That’s surely what they would do, so any Democratic emergency would be quickly squelched. Still, worth making the argument, as it appears to be working with some Republican lawmakers. I don’t know why, since they should know better than me that the court is now a corrupt institution.

But speaking of potential unintended consequences, I got a kick recently out of the fact that Clarence Thomas wants to overrule New York Times v. Sullivan. In that case the Warren Court (oh, blessed days) held that when the plaintiff is a “public figure”, he or she must prove actual malice in order to prevail in a libel case. In a regular peanut butter and jelly libel case, you need only prove that you’ve been libeled. You don’t even have to prove that the libel was untrue. Back in the olden days, the English courts actually held or are reputed to have held that the greater the truth the greater the libel. Nowadays truth is a defense that must be proven by the defendant, though the curious case discussed at the foregoing link calls even that into question.

Anyway, this may be a case in which the good justice (well, he’s not actually a good justice) should perhaps be careful what he wishes for. He is, probably at least in part, responding to Trump’s desire to have libel laws relaxed. Trump too, might consider being more careful in what he wishes for.

Libel actions can be brought in both state and federal courts. For the most part, a federal court does not apply federal law to such a case. It applies the law of the state with jurisdiction. Generally speaking, each state is free to develop its own tort law, including libel law. Sullivanis a limitation on states libel law to the extent that it limits the degree to which the states can punish certain speech. If Sullivanis overturned, then the State Supreme courts will, in the absence of any federal limitation, be allowed to develop libel law in any way they choose. So let us suppose that a given state, say, New York, decides to go back to the pre-Sullivan days and treat libel of a public figure no differently that any other libel case. Ask yourself, who is more likely to be at the losing end of the following lawsuits:

• Trump versus anyone who has called him a serial liar.
• Hillary Clinton vs. Trump for calling her a crook.

Remember, “anyone” would bear the burden of proving the truth of the statement that Trump is a serial liar. How hard do you think that would be? Trump would bear the burden of proving Hillary a crook. No one has done that so far, and a lot of people have tried. Since these cases would be heard in state courts, and the decisions of the highest state courts would be final (absent a federal question) then the Supreme Court would have a very difficult time imposing an IOKYAR rule.

I should think, as well, that the folks at Fox might not be happy about such a change, as it doesn’t sit well with their business plan. I actually think that some Democrats should think seriously about bringing libel cases even under the current rules. Trump’s lies about Hillary, for instance, probably meet the actual malicestandard.

I really think Judge Thomas would not be happy if he got his way on this one.