Emergency Application Filed With Circuit Justice Jackson Seeks Relief By May 6; Still No Call For Response

The Court moves heaven and earth to block removal of alleged gang members who are almost certainly removable, but stays silent when citizens of Maine lose their elected representative.

Laurel Libby is an elected representative in Maine. The Speaker of the Maine House stripped Libby of the right to vote in the legislature due to her comments about transgender athletes in sport. The District Court and First Circuit denied relief. Ed Whelan has more about the controversy here.

On Monday, April 28, Consovoy McCarthy filed an emergency application with Circuit Justice Jackson. Libby has asked for a ruling by May 6 when the legislative session begins.

In this application, Petitioners seek an injunction pending appeal requiring the Clerk to count Libby's votes. That interim relief simply restores the status quo of equal representation, bringing the Maine House back into conformity with every other State and Congress. Petitioners respectfully request that relief before May 6, 2025, when the House convenes yet another floor session where every legislator but Libby may vote.

As of the evening of Wednesday, April 30, Justice Jackson still has not called for a response. Getting a ruling by May 6 would have been difficult, even with a prompt turnaround time. But this petition has now been sitting on the docket for two days without any motion. And forget about an administrative stay!

It seems the Court's preferences are fairly clear, as we saw in the denial of the application in the Ohio ballot case. The Court moves heaven and earth to block removal of alleged gang members who are almost certainly removable, but stays silent when citizens of Maine lose their elected representative. I'm glad everyone's priorities are straight.

Comments

[Magnus Pilatus, MBA, MD, JD, PhDx2]

She should've claimed to be an illegal alien elected representive.

We all know they're considered Super Citizens by the DC Elites.

[mse326]

Did my calendar stop? There is still 6 days. They may not call for a response because they don't need one. It's one thing to assume everything you don't like is the Court playing politics. It is quite another to get prematurely up in arms over your imagined goings on.

[hayesmi5]

Exactly. Based on Josh's byline, he appears to believe that aliens (illegal or otherwise) are not entitled to due process. Otherwise, why even bring that up? It is nothing more than Josh displaying his partisan hackery in hopes of a judicial nomination.

[rloquitur]

This just daft. First of all, that's not the issue with Kilmar. He's had DP--the government just screwed up and sent him to the wrong country. But he has no real remedy. Everyone expects the government to play by Marquess of Queensbury rules. But the government doesn't have to. Judge Xinis should just accept defeat.

As for the AEA deportations, they were gone before they filed a lawsuit. Tough tittie. And "turn the planes around" isn't a legit order (as it wasn't in writing and it was ridiculous anyway).

[Josh R]

The emergency ruling from SCOTUS was in reference into would-be AEA deportations that had not yet occurred.

[David Nieporent]

That was not what the order said, it doesn't need to be in writing, and it was not ridiculous. So, you have a lower batting average than Mario Mendoza. Congrats!

[rloquitur]

As I've pointed out, this fight isn't just legal. And to the average observer, the "turn the planes around" is just another example of the imperious jerks in robes.

[Sarcastr0]

Blackman is getting more and more us v. them and less and less even gesturing at doing any legal analysis or commentary..

[rloquitur]

Josh raises a fair issue. Let's face it, Kilmar is a bad guy. And the courts are bending over backwards.

[Glaucomatose]

Believe it or not, "bad guys" are entitled to due process, too. In fact, if all we had were "good guys," we wouldn't really need due process in the first place.

[rloquitur]

Well, yeah. But he's had it. Government screwed up (it happens), and there's no remedy. Sorry about that hand, Streak.

[Sarcastr0]

"The Court moves heaven and earth to block removal of alleged gang members who are almost certainly removable, but stays silent when citizens of Maine lose their elected representative. I'm glad everyone's priorities are straight."

This is not legal anything; it's peevish bullshit.

If I want that, I can just read your endless whataboutism.

[David Nieporent]

Let's face it, Kilmar is a bad guy.

And you have evidence of this, right? Oh, that's right, I forgot you were sick the day they taught law at law school.

[rloquitur]

Not gonna play that game. He's an illegal and credibly accused of DV. Buh-bye.

You guys are losing this political-legal fight.

[David Nieporent]

"Credibly" accused? What does that word mean in your native language? How can you assess the credibility of a naked accusation from someone you've never met or heard testimony from?

That was the same rhetorical trick that Democrats used for Ford's accusations against Kavanaugh: short circuit the question of whether there's any evidence by simply labeling an accusation "credible."

[y81]

Wow, it's almost as if not being sure if you can vote in the Maine state legislature next month is a less evident "irreparable harm" than being sent to indefinite imprisonment in a foreign country.

[rloquitur]

They all could have self-deported.

[Michael P]

Being wrongfully excluded from a legislative vote is an irreparable injury. Being deported this week instead of next month shouldn't be a judicially cognizable injury at all, much less an irreparable one.

[rloquitur]

Amen, brother.

[Josh R]

Being deported this week for what ends up to be determined an illegal deportation next month is irreparable harm.

[y81]

As far as I can make out, the courts to date have determined that her exclusion isn't wrongful. Democracy rules, and the elected state legislature gets to set the rules. If you say something that annoys them, you're SOL. Are you bringing up some commie first amendment theory? Since when does that apply to the people's elected tribunes? Next thing commies like Perkins Coie will be claiming first amendment rights, and getting some lib-lab federal judge to back them up. We don't want that!

[rloquitur]

The problem for Perkins Coie is that they are right about 1A (other than the blanket security clearances) but that it doesn't matter. They've done enough stuff (racial preferences) that the government can get them good.

[rloquitur]

SCOTUS is about to toss all of its precious institutional prestige out the window. The reason the court is moving heaven and earth for deported gangbangers is that the federal judiciary has skin in the game and that they crave the approval of the cocktail class. At bottom, the Court is wanting the Trump Administration to come to heel and respect the authoritay. And judges have it ingrained in them that litigants have to suffer the slings and arrows of the majestic judiciary. Well, no.

Kilmar is out of the country--and he was deported to El Salvador contrary to a bullshit court order, but a court order nonetheless. Most administrations would have sheepishly brought him back--you know, appearances. But Trump is sticking to his guns. He's telling the courts to pound sand, which he has the power/right to do. He doesn't have to push Bukele, and that's that. And if the courts decide that they are going to alter their processes for Trump not following the old non-law cricket rules, then they are the lawless ones, not Trump. It's the same bullshit when it comes to capital cases. They twist and bend the law if the case's optics look bad. (Buck v. Thaler leaps to mind.) And they expect the rest of us to bow down to their majesty. See Planned Parenthood v Casey:

"So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court's concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible."

Well, the federal courts are abusing their powers. They can't complain when Trump doesn't play their silly games.

[The Margrave of Azilia]

This was a perfectly legitimate topic - the right to representation in the legislature - but Blackman threw in some red meat about deportation, trying to justify Trump's unconstitutional immigration policies, or at least denounce the judiciary for trying to uphold legal standards.

So let's pretend that I've already had my say against Trump's deportation illegalities, and change subjects to the question of enforcing the Constitutional rights of voters in Maine:

"The United States shall guarantee to every State in this Union a Republican Form of Government..." Art. IV, Sec. 4.

What do you call a government where a district of people is governed without legislative representatives? The District of Columbia denounces this on their license plate (though to be fair they're not a state).

Now, the Supreme Court used to get away from this by saying that they're not the United States and the question of republican government is supposed to be enforced by the President and Congress instead. Which is at least a somewhat plausible argument.

But then came the reapportionment cases, where the Court strained at the gnat of republican government and swallowed the camel of mandating equal representation from every legislative district.

Well, then, here's a legislative district without equal representation in the Maine legislature. What does the Court plan to do about it?

Or if it's a political question, time for Congress to step up and enforce the Guarantee Clause.

[Noscitur a sociis]

I’m not sure I would agree that not having an elected official representing you in the legislature makes your government non-Republican. In the primary republic that the founders were thinking of, there were no elected legislative representatives at all.

[The Margrave of Azilia]

Athens? But that was a democracy, not a republic.

[Noscitur a sociis]

That’s not a distinction people drew in the founding era, see e.g. Federalist 6 (“Sparta, Athens, Rome, and Carthage were all republics; two of them, Athens and Carthage, of the commercial kind.”), so that’s not a bad additional example, but I was talking about Rome.

[The Margrave of Azilia]

I asked Grok, one of our top AIs, to enlighten me about this. Here is what it said:

"Yes, the Roman Republic had elected legislative representatives. The key legislative bodies included:

"Comitia Centuriata: Elected magistrates like consuls and praetors, and passed laws. It was organized by wealth and military class, with citizens voting in groups (centuries).

"Comitia Tributa: Elected lower magistrates (e.g., quaestors, aediles) and passed legislation. Organized by tribes, it gave more voice to the plebeians.

"Concilium Plebis: Elected tribunes of the plebs and passed plebiscites (laws binding after 287 BCE). Only plebeians could vote.

"Magistrates, such as consuls, praetors, and tribunes, were elected annually by these assemblies. The Senate, while influential, was not elected; its members were appointed, typically from former magistrates. Elections were central to the Republic’s political system, though voting was weighted by class and wealth."

[The Margrave of Azilia]

But if the guys in the wigs thought Athens was a Republic, I better take a closer look, with Grok's assistance.

Bottom line: Some combination of direct participation and choice by lot may count as (small r) republican.

"In the ancient Athenian polity, particularly during the democratic period (5th–4th centuries BCE), there were no elected legislative representatives in the modern sense, as Athens practiced direct democracy rather than representative democracy. However, certain roles and bodies involved elected or selected officials with legislative functions:

"Boule (Council of 500): This council prepared legislation for the Assembly and oversaw daily governance. Members, called bouleutai, were selected annually by lot (not election) from citizens over 30, with 50 representatives from each of the 10 tribes. While not elected, they were crucial to the legislative process.

"Ekklesia (Assembly): The primary legislative body, open to all male citizens over 18, debated and voted directly on laws and policies. No representatives mediated; citizens themselves proposed and passed legislation.

"Elected Officials: Some magistrates with administrative or judicial roles, like the strategoi (generals), were elected by vote rather than chosen by lot, as expertise was valued. However, these roles were not primarily legislative.

"Nomothetai: Special legislative panels, selected by lot, reviewed and approved new laws after the 4th century BCE. They were not elected but chosen randomly from citizens.

"Athens’ system emphasized direct participation over elected representation. Most officials involved in legislative processes were chosen by lot to ensure broad citizen involvement and prevent elite dominance, with elections reserved for specific roles requiring skill."

[Noscitur a sociis]

The comitia centuriata, comitia tributa, and concilium plebis (also called the comitia plebis tributis) weren’t representative bodies: they consisted of all adult citizens in the first two cases, and all plebeian male citizens in the third. And the various magistrates elected by those bodies weren’t legislators.

[The Margrave of Azilia]

OK, if a republic doesn't *completely* use direct citizen rule, but depends instead on some use of the representative principle, then voters should have the right to choose the representatives. No single district should be stripped of that right.

In contrast, if there are no legislators in *any* district and the entire state is run on town-meeting principles, that would be constitutional, I guess.

[Ridgeway]

"Or if it's a political question, time for Congress to step up and enforce the Guarantee Clause."

If you are making a RFG clause argument, this is probably the way is would need to go. The SCT has viewed the RFG clause as non-justiciable for the better part of 2 centuries.

https://www.law.cornell.edu/constitution-conan/article-4/section-4/justiciability-of-guarantee-clause-issues

A quick perusal of the motion shows that plaintiff/appellant is relying more on 1st & 14th Amdt arguments.

[JoeFromtheBronx]

To be clear, the "comments" included "photos and the name of the athlete, a minor," which is what particularly concerned the legislators. Not just her opinion. The risk of exposing a minor.

https://www.cbsnews.com/news/laurel-libby-censure-maine-facebook-post-transgender-athlete-supreme-court/

The challenge aims to interfere with a legislature's ability to regulate its proceedings. As the article notes:

When she refused to do so, the speaker found her in violation of a Maine House rule that prohibits a member guilty of a violation of the legislature's rules and orders from voting or speaking "until the member has made satisfaction."

Putting aside the merits, there still is time, and even if she is delayed from voting, it's not akin to deporting someone or even detaining someone in the country.

[The Margrave of Azilia]

I suppose the legislature could expel the evildoer, but then the voters of the district would still be entitled to a voting representative, and might even re-elect the baddie. That wouldn't do - the voters must be punished and punished hard!

Under the Maine Constitution, "Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of 2/3, expel a member, but not a 2nd time for the same cause." Article Four, Part Third, Section 4.

The power to expel isn't adequate here, because not enough Republicans went along with the denunciation of the evildoer to make up 2/3. And if the voters of her district re-elected her, she couldn't be expelled again for the same reason. The state House would be stuck with her.

But by calling it a punishment for disorderly behavior, a majority of the House gets to disenfranchise the legislator's entire district, punishing the wrongthinking voters along with their representative.

[y81]

She could resign, or even auto-deport. So there is no irreparable harm,

[The Margrave of Azilia]

Zing! Although you forget I've been criticizing Trump's deportation illegalities.

The rights involved are the rights of the voters of the district, who have been disenfranchised. They can't make her resign.

To reduce the emotionality, assume she'd merely been censured for taking bribes and refused to apologize. To protect the rights of the district's voters, the House could use expulsion followed by a new election - held *promptly.* Or perhaps a fine. To take it out on the voters by disenfranchising them...well, I'd like to hear of a precedent for this.

[JoeFromtheBronx]

a majority of the House gets to disenfranchise the legislator's entire district, punishing the wrong-thinking voters along with their representative

Legislative bodies can regulate their members and proceedings, including punishing them when they break the rules. That is a form of legislative right of assembly.

The voters aren't being punished for being "wrong-thinking" here. They agreed to the Maine Constitution. They agreed to the legislature having the power to regulate members. That advances their interests, including here, deterring harm to their children.

George Santos "disenfranchised" his constituents by committing wrongdoing that led him to be expelled. Until an election could take place, which can take an extended period, they had no representative. And here, we can blame the rep.

She is still a member of the legislature, which provides representation.

[The Margrave of Azilia]

It's my understanding that the district formerly represented by Santos currently has a (different) representative.

In modern jargon, I'd say that there's a compelling interest in having a brief vacancy during the "interregnum" between a representative's expulsion and the election necessitated by the vacancy.

So the legislature could have expelled the woman and triggered a special election, and yes, pending the election the district would have been unrepresented, but that didn't happen because there wasn't 2/3 to expel. They imposed disenfranchisement on the district by a mere majority and without a special election scheduled to resolve the problem.

I see no compelling interest in disenfranchising a legislative district's voters because there wasn't a majority to expel.

[A Japanese Student]

The application was docketed today. April 28 is when the clerk received the electronic submission.

[tylertusta]

Is Laurel Libby threatening to file cases asking for TROs in every district court on Easter weekend?

No.

I think that SCOTUS stepped in because it didn't want to get swamped by the lawsuits it previously told the ACLU they had to file.

[The Margrave of Azilia]

After the U. S. Supreme Court's decisions in Powell v. McCormack (395 U.S. 486 (1969)) and Bond v. Floyd (385 U.S. 116 (1966)), you'd think the federal courts would have no technical objection to ordering the restoration of a member who had been excluded by a legislative body. If the relevant legislative bodies had simply denied Powell and Bond the right to vote, would the Warren Court have shrugged and said oh, well, I guess we can't do anything?

[David Nieporent]

Both of those cases were about whether a representative had to be seated if he met all the legal qualifications for office. Not whether he (or she) could be disciplined after he had been seated.

[rloquitur]

What a shill you are. How cute.

[David Nieporent]

WTF are you talking about? Margrave cited two cases, and I pointed out that neither apply to this situation. I'm sorry you don't understand how legal analysis works.

[y81]

Most of Blackman's supporters don't understand how legal analysis works. Then again, the fish rots from the head.