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

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>. 

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

Seth Barrett Tillman  @SethBTillman

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·

lawrence serewicz  @lldzne

Replying to

@SethBTillman

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?

Seth Barrett Tillman  @SethBTillman

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

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

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 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>.

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—I’m gonna make them an offer, they can’t refuse. 

Seth

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>.

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

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>.

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>.

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>. 

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!

Seth

* 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>. 

Boris Johnson Still Has An Ace Or Two To Play

There is some good reason to believe the Benn-Burt Bill will not be enacted—at least not in its current form. One cannot be sure—as 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 PM’s 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 ministers—but usually the ministers have put forward the bill or, at least, they have acquiesced to a private member’s 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 convention—that the Queen acts on the advice of ministers—is in tension with the historical norm that Queen accedes to all bills laid before her from Parliament. That’s 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 crown—the royal prerogative—the bill must have the Queen’s 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 minister—and such support is usually signified in the third reading in the Commons. If the responsible minister does not support the bill, where the Queen’s consent is required, the bill (in normal times) dies—just as if Parliament had been dissolved or prorogued.

The Benn-Burt Bill limits executive discretion by the crown’s 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 Queen’s consent, as opposed to relying on the royal assent, keeps the actual Queen out of politics—and 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.

Seth

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/>;

[B] Guidance: Queen’s or Prince’s Consent, Gov.uk (updated 28 Sept. 2018), <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/742221/Queen_s_and_prince_s_consent_pamphlet__September_2018___accessible_.pdf>;

and,

[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 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, 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>.