“This life is slow suicide, unless you read.”Herman Wouk

Thursday, December 05, 2019

Extract From My Next Article

Any number of other puzzles also remain. Our modern commentators look back to sources from 1835, 1829, 1824, and 1818—with the 1818 source referring to a prior source for Henry’s speech—American Orator,[1] which I have been unable to locate. What the original source of Henry’s speech was remains unclear. Certainly, the Commons’ Journal is not helpful. Modern commentators also look to Gaston’s 1835 speech. Gaston made the “officer” argument there, but he did not positively assert that that he or anyone else made that argument in the 1809 proceedings. So was that argument actually made in 1809?
And, of course, the chief puzzle remains. What line of reasoning (if any) led the members to reject the motion to vacate Henry’s seat? Was it Henry’s platitudinous (almost extra-legal) argument about religious toleration and freedom of conscience? Or, was it the more legalistic arguments brought by one or more of Henry’s purported supporters relating to the scope of the 1776 North Carolina Constitution’s “office”-language? One commentator affirms that it was both.[2] As he points to no sources, his explanation appears to be no more than a somewhat unsatisfying fudge. There is a third explanation—one not properly developed in the extant literature—to which I now turn.


If the reader has stubbornly persisted in going with the Author thus far, I would ask you to go with me a bit farther still. But here, admittedly, I shift from law and history, to conjecture and hypothesis. Perhaps some future sibyl, who will come after me, will fill in the intellectual gaps where I am unable to see. Is not the quality of the reported debate on the Henry motion—the sophistication, the complexity, and the sheer number of arguments marshalled on each side—all on one day’s notice—more than somewhat surprising? Is it just possible, might not we hope, that the debate was pre-planned and pre-arranged, viz., that Henry was set up? Perhaps the motion and subsequent debate were arranged to provide a public vehicle to debate Article 32 and to create a record towards its amendment, if not its abolition? If a cabal of members were quietly engineering such strategic parliamentary politics for the consumption of the wider demos, is there any reason we should be surprised? And if we were consigned by a trick of fate to similar circumstances, could we aspire to do any more than they did? 

[1] I have checked: Increase Cooke, The American Orator (New Haven: Sydney’s Press, 1811), <https://tinyurl.com/t98c24m>; ibid. 2d ed. (Hartford: Oliver D. Cooke, 1814), <https://tinyurl.com/wa67de4>; ibid. (New Haven: Sydney’s Press, 1819), <https://tinyurl.com/tuv6hhk>. I have also checked Joshua P. Slack, The American Orator (Trenton, New Jersey: Daniel Fenton, 1815), <https://tinyurl.com/untl7tb>. Henry’s speech does not appear in these sources.
[2] Samuel A’Court Ashe, History of North Carolina [from 1783 to 1925], 2 vols. (Raleigh: Edwards & Broughton Printing Company, 1925), 2:207, <https://archive.org/details/historyofnorthca02ashe/page/n7>. 

Seth Barrett Tillman, New Sources on the 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat (posted Nov. 25, 2019) <https://ssrn.com/abstract=3498217>.

Brian L. Frye, Podcast, A Religious Test in America?—The Motion to Vacate Jacob Henry’s Legislative Seat, Ipse Dixit (Dec. 4, 2019) (interviewing Tillman), <https://shows.acast.com/ipse-dixit/episodes/seth-barrett-tillman-on-the-jacob-henry-and-the-meaning-of-o>. 

Seth Barrett Tillman, Extract From My Next Article, New Reform Club (Dec. 5, 2019, 4:26 AM), <https://reformclub.blogspot.com/2019/12/extract-from-my-next-article.html>; 

Friday, November 22, 2019

What the Democrats have Learned from their Failure in Connection with the Kavanaugh Hearings

This is what the Democrats have learned from their failure in connection with the Kavanaugh hearings. Don’t allege crimes which, if true, would leave physical evidence; rather, allege crimes which only exist in men’s hearts and minds. Should we go down that road, our next destination will be a world where men deny they have hearts and minds, and our final destination may be a world where that denial reflects the actual truth—a world where men have no hearts and minds at all.

Seth Barrett Tillman, What the Democrats have Learned from their Failure in Connection with the Kavanaugh Hearings, New Reform Club (Nov. 22, 2019, 11:03 AM), <https://reformclub.blogspot.com/2019/11/what-democrats-have-learned-from-their.html>;

Tuesday, November 19, 2019

Today, I agree with Professor Akhil Amar ....

Akhil Reed Amar, On Impeaching Presidents, 28 Hofstra L. Rev. 291, 313 (1999) (emphasis added), <https://digitalcommons.law.yale.edu/fss_papers/845/>: 

The explicit role of the Chief Justice has profound implications for the proper ethical relations between Senators and the President. Suppose a sudden illness were to require the Chief Justice to resign. Although the senior associate justice might presumably fill in temporarily, at some point a new Chief Justice would need to be installed, and Article II, Section 2 tells us how this would happen. The President would appoint, with the advice and consent of the Senate, a new Chief Justice. In other words, even in the middle of a trial, the judges and the judged might need to confer and collaborate to pick the permanent presiding officer. Stranger things have happened.

For the view that it is pellucidly clear that the senior associate justice may fill in during such circumstances, see Steve Lubet, Could Justice Thomas Substitute for Justice Roberts in an Impeachment Trial of President Trump?, The Faculty Lounge (Nov. 19, 2019, 9:15 AM), <https://tinyurl.com/wmsxu8u>. And you must read the many interesting and helpful comments that follow. 

Can both of these views be correct? I dont see how. 


PS: For my views on this subject, see Josh Blackman & Seth Barrett Tillman, Could Justice Thomas Preside over President Trump’s Impeachment Trial?, Balkinization (Nov. 17, 2019, 1:10 PM), <https://balkin.blogspot.com/2019/11/could-justice-thomas-preside-over.html>. 

Seth Barrett Tillman, Today, I agree with Professor Akhil Amar ...., New Reform Club (Nov. 19, 2019, 11:29 AM), <https://reformclub.blogspot.com/2019/11/today-i-agree-with-professor-akhil-amar.html>. 

Monday, November 18, 2019

Could the President Recess Appoint Himself into the Chief Justice’s Position During his own Impeachment?

You ask: Could the President recess appoint himself into the chief justice’s position during his own impeachment? Your query raises the same subject as:
[a] May the Speaker preside when debate on the House floor involves investigating, censuring, disciplining, and/or expelling the Speaker?; and,
[b] May the Vice President preside when debate on the Senate floor involves investigating, censuring, disciplining, and/or impeaching the Vice President.

These situations are sometimes put forward as examples of defects in our Constitution, but this critique fails. In each of these situations, the relevant house would just go into the committee of the whole, and that would displace the presiding officer, which would resolve the conflict at issue. The committee will report back to the full House or Senate. If the committee had a majority supporting the imposition of some punishment, then the same majority can act when the committee reports to the full house. If two-thirds were necessary to take action, the same scenario would apply. If a two-thirds majority were available in the committee of the whole, then that same two-thirds majority can act when the committee reports back to the full house. At that stage, where the merits had been fully determined in the committee, it would not matter who was the presiding officer or if he were conflicted.

The only defect would be if the original motion to put the proceedings into the committee of the whole led to an evenly divided House or Senate. I am not going to lose any sleep in regard to that potential minuscule problem. Let’s get real here. Consider the scenario involving an impeachment of the Vice President before the Senate. It is very unlikely that a Vice President will be impeached; it is also unlikely that an impeached Vice President will attempt to preside; and it is also unlikely that an impeached Vice President, prior to trial in the Senate, but who demands to preside in the Senate, will have the benefit of an evenly divided Senate.

Seth Barrett Tillman, Could the President Recess Appoint Himself into the Chief Justice’s Position During his own Impeachment?, New Reform Club (Nov. 18, 2019, 8:01 AM), <https://reformclub.blogspot.com/2019/11/could-president-recess-appoint-himself.html>; 

Friday, November 15, 2019

The Old School

“The judge is an arbiter, not an inquisitor. He must not run a line of his own. He has no battle to fight. He must not, as the appeal court has several times said, descend into the arena. He is a referee and not a player, but not a mere referee. In relation to the facts of the case as distinct from the law, his power resembles that of a constitutional monarch of the Victorian age. He can ask any question he likes when he likes or he can keep silent until he has to sum up. Complete silence is, however, no more the mark of a good judge than is loquacity. By the discreet use of his power he softens the rigidities of the adversarial process. He can, and often does, ask the question which neither side dares to ask; or the question which one side is not allowed to ask and the other side does not want answered.”

Quoting from: Patrick Devlin, Easing the Passing: The Trial of Dr John Bodkin Adams (2nd edn., 1986) 74. 

Seth Barrett Tillman, The Old School, New Reform Club (Nov. 15, 2019, 7:38 AM), <https://reformclub.blogspot.com/2019/11/the-old-school.html>; 

Wednesday, November 06, 2019

The Moral History of the American Revolution

OK, I've gotta have this one. AND SO DO YOU. See below.

America's Revolutionary Mind is the first major reinterpretation of the American Revolution since the publication of Bernard Bailyn's The Ideological Origins of the American Revolution and Gordon S. Wood's The Creation of the American Republic. 

The purpose of this book is twofold: first, to elucidate the logic, principles, and significance of the Declaration of Independence as the embodiment of the American mind; and, second, to shed light on what John Adams once called the "real American Revolution"; that is, the moral revolution that occurred in the minds of the people in the fifteen years before 1776.
The Declaration is used here as an ideological road map by which to chart the intellectual and moral terrain traveled by American Revolutionaries as they searched for new moral principles to deal with the changed political circumstances of the 1760s and early 1770s. This volume identifies and analyzes the modes of reasoning, the patterns of thought, and the new moral and political principles that served American Revolutionaries first in their intellectual battle with Great Britain before 1776 and then in their attempt to create new Revolutionary societies after 1776.

The book reconstructs what amounts to a near-unified system of thought—what Thomas Jefferson called an “American mind” or what I call “America’s Revolutionary mind.” This American mind was, I argue, united in its fealty to a common philosophy that was expressed in the Declaration and launched with the words, “We hold these truths to be self-evident.”

HT: Instapundit.com--

And from Robert Bidinotto in his own words: I edited this book in manuscript, and let me tell you: It’s THE book our country needs right now, to counter the anti-American narratives that have been poisoning generations. THIS is the rationale for, and defense of, America that we have all been waiting for — and that we so desperately need in our time. If you are upset with how the history, principles, and Founders of America have been vilified and vandalized, then you absolutely, positively must get “AMERICA’S REVOLUTIONARY MIND” by Clemson historian C Bradley Thompson. I am thrilled to have helped edit this magnificent examination of America’s founding, revealed through Prof. Thompson’s deep and eloquent exploration of the ideas of the Declaration of Independence — as they were debated and championed by the people of that era. It is a rich work that will enrich your mind and spirit. Buy it today — and spread the word.

Order here: https://www.amazon.com/exec/obidos/ASIN/B07N8FSMYC/wwwviolentkicom

A Letter to SSRN

Today is November 6, 2019 and the monthly rankings have not been reported. There is no legal holiday or weekend interrupting the flow of regular work.

When will the November 1, 2019 rankings be reported?

Last month, the rankings were significantly delayed AND the numbers were reported as of the 6th of the month, rather than the 1st. Is this going to be the new norm? Rankings are just a counting (rather than analytic) exercise. Why is this so difficult?


Seth Barrett Tillman, A Letter to SSRN, New Reform Club (Nov. 6, 2019, 12:11 AM), <https://reformclub.blogspot.com/2019/11/a-letter-to-ssrn.html>. 

Wednesday, October 30, 2019

Why Does Google Do This?

I actively hunt for citations to my publications (broadly construed—counting citations to my blog posts, etc). I frequently search on “Seth Barrett Tillman” and a list of items will be returned. I have noticed that if I search on “Seth Barrett Tillman” AND “string”, I will get a second list. I would have thought that by using an “AND”, the second list would be a subset of the first list. But it is not. The second list will sometimes contain items not in the first list, even though “Seth Barrett Tillman” is in the search query for both lists. Why isn’t the second list a subset of the first list?

This leaves me wondering if there are other citations out there that I have not discovered because I don’t know what string to use as a second string. Is there some way to tell Google to find all “Seth Barrett Tillman” items without regard to a well-chosen second string and thereby uncover all “hidden” citations?

For example, if you search on
“seth barrett tillman” AND “McCutcheon v. Federal”
you will see that the last returned item is:

https://aichiu.repo.nii.ac.jp› ...

But if you just search on “seth barrett tillman”,
you don’t get that item. It is a bona fide citation in a Japanese law journal. Why does Google do this?


Seth Barrett Tillman, Why Does Google Do This?, New Reform Club (Oct. 30, 2019, 7:23 AM), <https://reformclub.blogspot.com/2019/10/why-does-google-do-this.html>. 

Tuesday, October 22, 2019

Sunday, October 13, 2019

Wednesday, October 09, 2019

Why the DOJ Acts for the Defendant in the Emoluments Clauses Cases

October 6, 2019

The Washington Post
Letter to the Editor

Re: David A. Fahrenthold, Ann E. Marimow & Robert Barnes, Justice Department helps Trump fight financial probes, The Washington Post, Oct. 5, 2019, Sect. A, page 5.

Dear Letters Editor,

Your October 6, 2019 article took the position that “federal [government] lawyers have defended” Trump in the three Emoluments Clauses cases. That’s not quite right.

In two of these lawsuits, plaintiffs chose to sue the President exclusively in his official capacity, not in his individual capacity. Such an official-capacity only lawsuit is, in reality, a lawsuit against the government of the United States. In other words, in both of these lawsuits, the President is only a nominal defendant. Where, as here, the government is the actual defendant, Department of Justice attorneys act for the government-defendant. In these two lawsuits, President Trump’s personal attorneys cannot defend the President—for the simple reason that Donald J. Trump, the individual, is not being sued. It is that simple.

In the third lawsuit, plaintiffs initially sued the President exclusively in his official capacity, but later they amended their complaint to also sue the President in his individual capacity. Subsequently, plaintiffs sought to unilaterally and voluntarily dismiss their individual-capacity claim against the President. The President’s personal attorney objected to any such dismissal: he wanted his day in court.

Plaintiffs would much rather litigate against the DOJ—an organization which is wholly unconcerned with the President’s personal and political reputation—a reputation which takes a pounding each and every time the DOJ loses a motion, trial, or appeal even though President is not really the defendant and has no personal day-to-day control over the DOJ and the government-defendant’s legal strategy (as he would have if he were the actual defendant).

Seth Barrett Tillman, Lecturer
Maynooth University Department of Law, Ireland

Tillman, a U.S. national, has filed multiple amicus briefs in the course of the three Emoluments Clauses cases. 

Seth Barrett Tillman, Why the DOJ Acts for the Defendant in the Emoluments Clauses Cases, New Reform Club (Oct. 9, 2019, 4:36 PM), <https://reformclub.blogspot.com/2019/10/why-doj-acts-for-defendant-in.html>. 

Tuesday, September 24, 2019

Will Boris Johnson Play Hard Ball with the UK Supreme Court?

Parliament, in a purported statute, the Benn-Burt Bill, now the European Union (Withdrawal) (No. 2) Act 2019, imposed a statutory duty on the Prime Minister to seek a withdrawal agreement or an extension of Brexit from the EU. That bill passed both houses of Parliament. It received royal assent on September 9, 2019 in consequence of the Queen’s prorogation order which was also to go into effect on September 9, 2019. Why did the bill receive the royal assent on September 9, 2019? The traditional procedure (per Erskine May) is to grant royal assent in regard to all bills which have passed both houses prior to the prorogation’s taking effect.

Now the U.K. Supreme Court has said that the Prime Minister’s advice was illegal, and the Queen’s prorogation order was void. In consequence, Parliament is not in recess, and it will meet because the prorogation order was void. Perhaps it follows that if the Queen’s prorogation order was void, and because the royal assent on the Benn-Burt Bill was only granted in consequence of that void order, then just perhaps the royal assent in regard to the Benn-Burt Bill is equally void, and the Benn-Burt Bill remains a bill, and not a bona fide act of Parliament?

Will Boris Johnson play hard ball with the Supreme Court?


Seth Barrett Tillman, Will Boris Johnson Play Hard Ball with the UK Supreme Court?, New Reform Club (Sept. 24, 2019), <https://reformclub.blogspot.com/2019/09/will-boris-johnson-play-hard-ball-with.html>. 

Friday, September 13, 2019

Trump's Voters and Brexit's Voters

I wrote this in 2016 about Trump. It works equally well in regard to Brexit.

Trump is not my ideal candidate. I did not back him in the primaries—indeed, there were others who I would have preferred. I am not telling you to vote for him or not to do so. You don’t need to hear what I think on this question because in a democracy the operating theory is that validly-registered non-felon not-institutionally-committed adult citizens can make up their own minds and vote (or not) how they like. That said: I do not see much good flowing from calling candidates or their voters (politically) ignorant, and it seems to me that promoting the contrary view can do a lot more long-term damage to our polity and to Western democracy than anything Trump has said to date. [See Trump, Academia, and Hyperbole.] 

It is a question of your willingness to actually share your political fate with the “rider on the Clapham omnibus” or, to mix metaphors, the “first four hundred people in the Boston phone book.” [See Escalation.]

Seth Barrett Tillman, Trump’s Voters and Brexit’s Voters, New Reform Club (Sept. 13, 2019, 3:55 AM), <https://reformclub.blogspot.com/2019/09/trumps-voters-and-brexits-voters.html>. 

McCabe, Trump, and Frodo Baggins

If McCabe is indicted...we are very close to saying that Trump is a man more sinned against than sinning.
10:25 pm 12 Sep 2019·

Replying to
I am not sure you really want to use that turn of phrase. How many times has he committed adultery? How many times has he cove[t]ed his neighbour[]s wife? Coveted his neighbour[]s goods? How many times has he borne false witness?

Frodo Baggins convicted of trespass and trespass to chattel and terrorist destruction to property by prosecutors in Mordor courts. Sauron sues [in separate civil action] for return of ring ....

Seth Barrett Tillman @SethBTillman
In the related civil action, Sauron’s attorney (the Mouth of Sauron) puts forward character witnesses against F Baggins alleging (absent objection) that when a young adult, Mr F Baggins stole mushrooms from a stout yeoman farmer from the midlands.

Seth Barrett Tillman @SethBTillman
Further character witnesses assert that Frodo poorly treated: [1] his servant, eg, Smeagol in a confrontation with foreign terrorists in West Mordor, ultimately leading to Smeagol[]s death, & [2] migrant workers invited to the Shire by the legitimate political authorities (Sharkey etc).

Seth Barrett Tillman @SethBTillman
Frodo has yet to open his case. It is expected that he will not deny these facts, & will instead argue that the incidents involving mushrooms & migrants have nothing to do with the political conflict in the south. Smeagol’s death was an unfortunate suicide or casualty of war.

Seth Barrett Tillman @SethBTillman
No doubt the broadsheets will characterise theses defences as overbroad or heartless or un-Shire-like.

Seth Barrett Tillman, McCabe, Trump, and Frodo Baggins, New Reform Club (Sept. 13, 2019, 2:38 AM), <https://reformclub.blogspot.com/2019/09/mccabe-trump-and-frodo-baggins.html>. 

PS: Spelling words using British-English, as would have JRRT

Wednesday, September 11, 2019

A Hypothetical for Prime Minister Boris Johnson

You lost in the Scottish appellate court. But you have an appeal at hand—to the United Kingdom Supreme Court (“UKSC”). Let’s say you prevail before the UKSC, and not only prevail, but you win bigly! Imagine: the UKSC holds that the content of the PM’s advice to the Queen related to the prerogative of prorogation is a non-justiciable, political question. There are no legal standards for the courts to apply. Prorogation is entirely discretionary. Everything you did was legal, and everything you might do in the future in regard to prorogation would (by implication) be legal too.

If the UKSC reaches such a decision, then the question becomes: What (if anything) will you do to take advantage of it? Will you prorogue Parliament from October 14, 2019 when Parliament returns, until November 1, 2019—post-Brexit? If you do not do so, you risk the Brexit Party saying that you pre-emptively disarmed, that you voluntarily surrendered a lawful tool to implement the referendum, and, in fact, you are just another Tory wet in the mould of Theresa May.

If you are sincerely trying to implement the referendum result, then its voters will expect you to make use of every legal tool within your power. Anything less would demonstrate that you are less than fully committed to: the result they voted for in the 2016 referendum, and the result you claim to support.


Seth Barrett Tillman, A Hypothetical for Prime Minister Boris Johnson, New Reform Club (Sept. 11, 2019, 7:29 AM), <https://reformclub.blogspot.com/2019/09/a-hypothetical-for-prime-minister-boris.html>. 

See also: Seth Barrett Tillman, Prime Minister Johnson’s Last & Most Dangerous AceNew Reform Club (Sept. 9, 2019, 9:19 AM), <https://reformclub.blogspot.com/2019/09/prime-minister-johnsons-last-most.html>.

See also: Seth Barrett Tillman, The Prime Minister’s Next AceNew Reform Club (Sept. 7, 2019, 5:12 PM), <https://reformclub.blogspot.com/2019/09/the-prime-ministers-next-ace.html>.

See also: Seth Barrett Tillman, Boris Johnson Still Has An Ace Or Two To PlayNew Reform Club (Sept. 4, 2019, 8:37 AM), <https://reformclub.blogspot.com/2019/09/boris-johnson-still-has-ace-or-two-to.html>.

Monday, September 09, 2019

Prime Minister Johnson’s Last & Most Dangerous Ace

5 PM British Summer Time / noon Eastern Daylight Time
Setting: A transatlantic telephone call between 10 Downing Street and the Oval Office. Let’s listen in …

Boris: Mr President, Donald, I am having a bit of a rough patch—this Brexit business—the crazies want my scalp. I need to ask a favour.

Trump: Boris, I want to help you. You are my friend. But I cannot do anything for you for friendship’s sake. That said—I am all for Brexit on October 31, 2019, if not before….

Boris: I know that Donald. You don’t have to explain.

Trump: Just a moment. I do have to explain. You have to expect that Clapper’s, Comey’s, and Brennan’s friends in the United States’ national security apparatus are recording everything you and I are saying. It will eventually come out—maybe tomorrow. So I might as well get my point of view across in the future record. We—the United States—pay for NATO. We subsidize the defense of every nation in NATO and in effect, every nation in the EU. Still, the EU raises tariff walls against our goods. This relationship is unfair to me, to my voters, and to the United States. In the past, we put up with it. We did so because Europe was getting on its feet after WWII, because Europe was under threat from domestic terrorism, and, above all, from Soviet communism—but those days are now long gone. The EU is just an anti-American cabal, and, for that reason and others, I want to facilitate the UK exiting. That’s why I am inclined to help you, and if our two countries’ interests are aligned, as I see our interests, I will help you. So tell me—what is it that you’d like me to do.

Boris: I am going to be forced by Parliament to ask the EU for an extension, and then to accept any extension that the EU might offer. But here a unanimity rule applies—every EU member state (other than the UK) must support giving the UK the extension. If one EU member holds out against granting an extension, then there is no properly authorized extension for the UK to accept. In those circumstances, I will be off the hook and free to negotiate a real deal with the EU, or, at least, free to exit the EU absent any deal.

For that reason, I would like the United States to explain to our NATO allies (e.g., Latvia, Estonia, Lithuania—who are also EU members) that if they vote in support of giving the UK any extension, then all U.S. troops will be pulled out of their countries. And in that situation, the U.S. will re-evaluate its continuing participation in Article V collective defense under NATO auspices.

If we go down this path, I do not think we should do it in secret. It will come out anyway.

Trump: That’s … That’s … Why the hell didn’t my advisors come up with that idea. What the hell do I pay those guys for anyway? Was this Dominic Cummings’ idea? I want that man in DC. Yuge!Yuuge!, simply Yuuuge! Latvia, Lithuania, and Estonia—Im gonna make them an offer, they cant refuse. 


Seth Barrett Tillman, Prime Minister Johnson’s Last & Most Dangerous Ace, New Reform Club (Sept. 9, 2019, 9:19 AM), <https://reformclub.blogspot.com/2019/09/prime-minister-johnsons-last-most.html>.

See also: Seth Barrett Tillman, The Prime Minister’s Next Ace, New Reform Club (Sept. 7, 2019, 5:12 PM), <https://reformclub.blogspot.com/2019/09/the-prime-ministers-next-ace.html>.

See also: Seth Barrett Tillman, Boris Johnson Still Has An Ace Or Two To Play, New Reform Club (Sept. 4, 2019, 8:37 AM), <https://reformclub.blogspot.com/2019/09/boris-johnson-still-has-ace-or-two-to.html>.

Saturday, September 07, 2019

The Prime Minister’s Next Ace

The Benn-Burt Bill goes back to the Commons on Monday morning, where it is expected to be finalized and then receive royal assent—and so become a statute.

Can the Prime Minister (“PM”) stop that process? Yes, as a formal, legal matter nothing stops the PM from asking the Queen to prorogue Parliament on Monday morning. It could be a short prorogation—one day. That would kill the bill, even if it was on its way to receive royal assent. And if the Commons restarts the process by passing Benn-Burt-Bill-#2 the next day it sits—absent amendments making the bill palatable to the government—the PM can prorogue again, and again, and again.

Do I expect the PM to take this path? That depends how serious he is about winning the next election. The people opposed to Brexit will vote against him. He has lost them. As for the people who are for Brexit … he must convince them that he is fully behind Brexit on October 31, 2019. If the PM voluntarily passes up lawful means to stop the Benn-Burt Bill … then those pro-Brexit voters have no reason to vote for him and his party. They will flee to others: the Brexit Party. So, yes, I expect the PM is contemplating a Monday morning prorogation.

That’s a prediction—not advice.


Seth Barrett Tillman, The Prime Minister’s Next Ace, New Reform Club (Sept. 7, 2019, 5:12 PM), <https://reformclub.blogspot.com/2019/09/the-prime-ministers-next-ace.html>. 

See also: Seth Barrett Tillman, Boris Johnson Still Has An Ace Or Two To PlayNew Reform Club (Sept. 4, 2019, 8:37 AM), <https://reformclub.blogspot.com/2019/09/boris-johnson-still-has-ace-or-two-to.html>.

See also: Seth Barrett Tillman, Prime Minister Johnson’s Last & Most Dangerous AceNew Reform Club (Sept. 9, 2019, 9:19 AM), <https://reformclub.blogspot.com/2019/09/prime-minister-johnsons-last-most.html>.

Friday, September 06, 2019

Seth Barrett Tillman, Trump Trolls the Entire World, New Reform Club (Sept. 6, 2019, 5:51 AM), <https://reformclub.blogspot.com/2019/09/seth-barrett-tillman-trump-trolls.html>. 

Thursday, September 05, 2019

Trump’s Good & Bad Luck

Blumenthal v. Trump started in the U.S. District Court for the District of Columbia (D.D.C.). It was heard by Judge Sullivan. Judge Sullivan has a good reputation as a straight shooter. He was appointed to the local or territorial courts of the District of Columbia by Republican (R) presidents (i.e., Reagan, and Bush I). Afterwards, he was appointed to the D.D.C. by a Democratic (D) president (i.e., Clinton). For the sake of argument, let’s simplify the situation and call him a D appointee. In Blumenthal v. Trump, at the motion to dismiss stage, Judge Sullivan ruled for the plaintiffs. But the Department of Justice (DOJ) sought an interlocutory appeal with the United States Court of Appeals for the D.C. Circuit.

The D.C. Circuit has 17 judges: 8 Ds and 9 Rs.* The panel that heard the DOJ’s motion for interlocutory review was composed of 3 Ds! What is the probability of that? 8/17 * 7/16 * 6/15 = 8%. That was, perhaps, Trump’s bad luck. But he prevailed anyway. And the case is now out of the hands of Judge Sullivan, and the D.C. Circuit will decide the case on the merits.

Here is what is interesting.

It appears that the original panel of 3 Ds, having determined that the court of appeals should hear the case as an interlocutory appeal, has also decided not to hear the appeal on the merits. So a new panel of 3 judges will be composed (at random) by the D.C. Circuit’s clerk’s office. I am not sure why the panel has decided not to retain the case on the merits going forward. But assuming a new panel will be composed: What is the probability that there will be either 2 Rs and 1 D, or 3 Rs on the panel? 54%. From Trump’s point of view, a majority of Rs on the panel is an improvement. And if the new panel were composed of D.C. Circuit judges exclusive of the members of the original panel, then the odds go up considerably above 54% for a panel composed either of 2 Rs and 1 D, or 3 Rs.**

What happens after the panel decides the merits? Then the non-prevailing party may apply for en banc review from the entire D.C. Circuit. Here the odds favor the plaintiffs. Why? The full court is composed of 9 Rs and 8 Ds, but that includes 6 judges with senior status. Senior judges do not participate in en banc review. The en banc court has 7 Ds and 4 Rs: a strong D majority. So anything Trump might gain from the next 3-judge panel, he might lose during en banc review … and then, perhaps, he might get it back again at the U.S. Supreme Court, which (as all know) is divided between 5 Rs and 4 Ds. But don’t tell Chief Justice Roberts—he won’t believe you!


* I am counting Judge Judith W. Rogers as a D appointee. She was appointed to the D.C. Circuit by President Clinton. That said, Judge Rogers was appointed to the local or territorial courts of the District of Columbia by President Reagan.

** The probability of a panel with 2 Ds and 1 R, or 3Ds is 45%. 

Seth Barrett Tillman, Trump’s Good & Bad Luck, New Reform Club (Sept. 5, 2019, 12:42 PM), <https://reformclub.blogspot.com/2019/09/trumps-good-bad-luck.html>. 

Wednesday, September 04, 2019

Boris Johnson Still Has An Ace Or Two To Play

There is some good reason to believe the Benn-Burt Bill will not be enactedat least not in its current form. One cannot be sureas the final decision will largely rest with Speaker Bercow. The Benn-Burt Bill, in certain situations, mandates that the PM seek a further extension of the Article 50 process for negotiating a withdrawal from the EU. Furthermore, in certain situations, the bill mandates that the PM agree to the extension offered by the EU. The bill ties the hands of the PM in regard to negotiations and, if there is no timely Brexit on October 31, 2019, the bill will also tie the PMs hands thereafter.

The issue is this. Generally, for Parliament to enact a statute, all that must happen is that the bill be passed by both houses and, then, obtain the royal assent. If the Benn-Burt Bill passes both houses, in theory, the PM could advise the Queen not to accede to the bill. The Queen acts on the advice of her ministersbut usually the ministers have put forward the bill or, at least, they have acquiesced to a private members bill. Here, where the House of Commons has seized the agenda paper and taken it out of the hands of the government, the government and House are not in alignment and the conventionthat the Queen acts on the advice of ministersis in tension with the historical norm that Queen accedes to all bills laid before her from Parliament. Thats one problem for the Benn-Burt Bill.

The bill has a second, and more significant problem.

As I stated: generally, for Parliament to enact a statute, all that must happen is that the bill be passed by both houses and, then, obtain the royal assent. There is an exception. Where a bill significantly weighs on the exercise of the reserved powers of the crownthe royal prerogativethe bill must have the Queens consent (which is distinguishable from the royal assent already discussed above). In other words, where a bill significantly burdens the exercise of what Hamilton called the residium of executive power, the bill must additionally have the support of a ministerand such support is usually signified in the third reading in the Commons. If the responsible minister does not support the bill, where the Queens consent is required, the bill (in normal times) diesjust as if Parliament had been dissolved or prorogued.

The Benn-Burt Bill limits executive discretion by the crowns ministers in mandating, in certain circumstances, that the Prime Minister agree to extensions of the Article 50 process, if such an extension is offered by the EU. Using Queens consent, as opposed to relying on the royal assent, keeps the actual Queen out of politicsand puts real responsibility for the Brexit end-game back where it belongs: with ministers on the floor of the Commons and accountable to the Commons.

Boris still has an ace or two to play.


See generally: [A] Robert Craig, Proponents of the new Bill to stop No Deal face a significant dilemma over Queen’s Consent, LSE/Brexit (Sept 2, 2019), <https://blogs.lse.ac.uk/brexit/2019/09/02/proponents-of-the-new-bill-to-stop-no-deal-face-a-significant-dilemma-over-queens-consent/>;
[C] The Benn-Burt Bill: Another Article 50 extension?, The Commons Library (Sept. 4, 2019), <https://commonslibrary.parliament.uk/brexit/negotiations/the-benn-burt-bill-another-article-50-extension/>.

Seth Barrett Tillman, Boris Johnson Still Has An Ace Or Two To Play, New Reform Club (Sept. 4, 2019, 8:37 AM), <https://reformclub.blogspot.com/2019/09/boris-johnson-still-has-ace-or-two-to.html>.

See also: Seth Barrett Tillman, The Prime Minister’s Next AceNew Reform Club (Sept. 7, 2019, 5:12 PM), <https://reformclub.blogspot.com/2019/09/the-prime-ministers-next-ace.html>.

See also: Seth Barrett Tillman, Prime Minister Johnson’s Last & Most Dangerous Ace, New Reform Club (Sept. 9, 2019, 9:19 AM), <https://reformclub.blogspot.com/2019/09/prime-minister-johnsons-last-most.html>.