Welcome to MeanMesa! The blog for those who have become suspicious of everything else...
Saturday, March 11, 2017
Trump and the Constitution - Article IV: The Guarantee Clause
The US Constitution and Foreign Invasion
When all else fails, follow the law.
After the second un-elected Republican President took possession of the Oval Office we were immersed in a flurry of furtive dreams about somehow rectifying the situation before too much unrecoverable damage had been inflicted on the country. Unhappily, almost all of these "happy dreams" turned out to be little more than desperate fantasies.
Still, we now see an effort to rectify this embarrassment based on US law so fundamental that not even a deeply penetrating government take over may be able to avoid it. MeanMesa has assembled a short reference to the Constitutional mandate held in Article IV along with an explanatory article from LearnProgress which details the foundation for possible legal action.
The Cornell article includes a discussion about the implications of the Constitutional question.
Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
GUARANTEE OF REPUBLICAN FORM OF GOVERNMENT
The first clause of this section, in somewhat different language, was contained in the Virginia Plan introduced in the Convention and was obviously attributable to Madison. Through the various permutations into its final form, the object of the clause seems clearly to have been more than an authorization for the Federal Government to protect States against foreign invasion or internal insurrection, a power seemingly already conferred in any case. No one can now resurrect the full meaning of the clause and intent which moved the Framers to adopt it, but with the exception of the reliance for a brief period during Reconstruction the authority contained within the confines of the clause has been largely unexplored.
In Luther v. Borden, the Supreme Court established the doctrine that questions arising under this section are political, not judicial, in character and that “it rests with Congress to decide what government is the established one in a State . . . as well as its republican character.” Texas v. White held that the action of the President in setting up provisional governments at the conclusion of the war was justified, if at all, only as an exercise of his powers as Commander–in–Chief and that such governments were to be regarded merely as provisional regimes to perform the functions of government pending action by Congress. On the ground that the issues were not justiciable, the Court in the early part of this century refused to pass on a number of challenges to state governmental reforms and thus made the clause in effect noncognizable by the courts in any matter, a status from which the Court’s opinion in Baker v. Carr, despite its substantial curbing of the political question doctrine, did not release it.
Similarly, in Luther v. Borden, the Court indicated that it rested with Congress to determine upon the means proper to fulfill the guarantee of protection to the States against domestic violence. Chief Justice Taney declared that Congress might have placed it in the power of a court to decide when the contingency had happened which required the Federal Government to interfere, but that instead Congress had by the act of February 28, 1795, authorized the President to call out the militia in case of insurrection against the government of any State. It followed, said Taney, that the President “must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress”, which determination was not subject to review by the courts.
In recent years, the authority of the United States to use troops and other forces in the States has not generally been derived from this clause and it has been of little importance.
Trump's Latest Headache
Is there still an American patriot among the four Republican Supremes?
SCOTUS will begin the early stages of hearing this case, known as Blumenthal vs. U.S., on March 17th. If successful, this case may remove Trump and his appointees from office.
Of course, Supreme Court cases are complicated and require many steps before there is a decision. It’s important to understand each piece of the puzzle.
The basis for the case is what’s known as the “Guarantee Clause” in the Constitution. This clause tasks the government with keeping America safe from foreign invaders.
Lawyers will argue that Russia’s interference with the 2016 election was a foreign invasion. Thus, the entire election must be nullified as it violated our country’s Constitution.
The hearing on March 17th won’t be a full-blown case. The Special Master, appointed by the court, will present evidence on both sides.
Then, the justices must decide if the case meets their standards to receive a full hearing. If four of the eight justices agree that it does, the case will move forward.
We are in uncharted waters for the United States. Because we have never had to challenge an election based off of the Guarantee Clause, the citizens who brought this case to the court must look elsewhere for legal precedent.
In order to fulfill the need for legal precedent, they cited cases from both Austria and Ukraine in which revotes were required after a decision. There’s a sweet irony to the fact that Ukraine could play a role in overturning a Russian puppet government.
Diane Blumstein, Nancy Goodman, and Donna Soodalter-Toman are the three brave citizens who decide to bring this matter to the courts once and for all.
When this case was seen in lower courts, the courts said that it was a “novel constitutional question.” However, they concluded that it was best left to other arms of government, like intelligence, to see if Russia played a role in the election.
Seemingly in a response, the Obama administration released information to the public in which 17 executive agencies agreed that Russia interfered in the election of Donald Trump.
Since the lower court’s decision, more evidence has been uncovered that points to Trump’s involvement with Russia. Michael Flynn’s resignation is just one example.
We are confident that more will become clear as this case and the women who champion it soldier on. Perhaps the American public will finally receive the transparency we need in order to have a functional democracy.
So far, the White House has made no comment on this case. Team Trump is oddly and unnervingly quiet on the subject.
Of course, we will keep you updated as the story continues to break. Although it may take some time, we must persevere and support this case.
The first step in supporting the women who brought this case to SCOTUS is to raise awareness. Do your part by sharing this article on Facebook ASAP!