Jurisdiction Stripping in Revolutionary France According to Edmund Burke’s Reflections (1790)

 

Jurisdiction Stripping in Revolutionary France According to Edmund Burke’s Reflections on the Revolution in France (1790):

It is curious to observe that the administrative bodies are carefully exempted from the jurisdiction of these new [revolutionary] tribunals. That is, those persons are exempted from the power of the laws who ought to be the most entirely submitted to them. Those who execute public pecuniary trusts ought of all men to be the most strictly held to their duty. One would have thought that it must have been among your earliest cares, if you did not mean that those administrative bodies should be real, sovereign, independent states, to form an awful tribunal, like your late parliaments, or like our king’s bench, where all corporate officers might obtain protection in the legal exercise of their functions, and would find coercion if they trespassed against their legal duty. But the cause of the exemption is plain. These administrative bodies are the great instruments of the present leaders in their progress through democracy to oligarchy. They must, therefore, be put above the law. It will be said that the legal [revolutionary] tribunals which you have made are unfit to coerce them [that is, the administrative bodies]. They are, undoubtedly. They are unfit for any rational purpose. It will be said, too, that the administrative bodies will be accountable to the General Assembly. This I fear is talking without much consideration of the nature of that Assembly, or of these corporations. However, to be subject to the pleasure of that Assembly is not to be subject to law either for protection or for constraint.

Id. (emphasis added).

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Seth Barrett Tillman, ‘Jurisdiction Stripping in Revolutionary France According to Edmund Burke’s Reflections (1790),’ New Reform Club (Mar. 27, 2024, 2:57 PM), <https://reformclub.blogspot.com/2024/03/jurisdiction-stripping-in-revolutionary.html>;

[N/B: Outside the United States, jurisdiction-stripping provisions in statutes are known as ouster clauses or privative clauses.]

Was an Appeal Possible in Ex parte Merryman?

 

 

Professor Vladeck wrote: “But perhaps reflecting some doubt as to the legal arguments, Lincoln did not appeal Taney’s decision to the full Court.” See Steve Vladeck, 65. Lincoln, Taney, and Ex parte Merryman, One First (Feb. 5, 2024), <https://stevevladeck.substack.com/p/65-lincoln-taney-and-ex-parte-merryman>.

 

There are any number of reasons explaining why Lincoln, the Executive Branch, the Army, and General Cadwalader (the actual named defendant) took no appeal. The primary reason is that no appeal, by them, was possible. Cadwalader was the prevailing party in Merryman, and under the aggrieved party rule, only the non-prevailing party (that is, John Merryman) may seek an appeal. See Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Mil. L. Rev. 481 (2016) (peer review), <http://ssrn.com/abstract=2646888>; see also Seth Barrett Tillman, Merryman Redux: A Response to Professor John Yoo, 22 Chap. L. Rev. 1 (2019), <https://ssrn.com/abstract=3213353>. See generally Seth Barrett Tillman, What Court (if any) Decided Ex parte Merryman?—A Correction for Justice Sotomayor (and others), 13 Br. J. Am. Leg. Studies 43 (2024) (peer review), <http://ssrn.com/abstract=4157572>. 

In 2016, I wrote:

“The third Merryman myth is that Lincoln could have (and should have) upheld rule of law values by seeking clarity from the courts by appealing Taney’s Merryman decision to the (full) United States Supreme Court. However, this was not feasible. In the context of a habeas action, if the decision had been in chambers, the prevailing view is that there was no route to appeal to the full Court. Moreover, even if the court which heard Merryman was the Circuit Court for the District of Maryland, or even if an appeal could be taken to the full Court from an otherwise jurisdictionally sound in-chambers habeas decision, Cadwalader, the government, and Lincoln could have taken no such appeal in Merryman. Why? Merryman had brought a habeas corpus proceeding seeking a judicial order compelling Cadwalader to release him. Taney never issued any such order against Cadwalader (or against anyone else). As such, Merryman was the nonprevailing party, and only he was entitled to take an appeal (assuming any such appeal was authorized by statute or otherwise permitted). Cadwalader—as odd as it sounds—was the prevailing party in Merryman, and in the American system of justice, absent special circumstances, only a nonprevailing party, i.e., only a party aggrieved by a judicial order (not by an opinion) may take an appeal.”

Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Mil. L. Rev. 481, 506–08 (2016) (peer review) (footnotes omitted) (emphases in the original).

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Seth Barrett Tillman, ‘Was an Appeal Possible in Ex parte Merryman?,’ New Reform Club (Mar. 27, 2024,  8:41 AM), <https://reformclub.blogspot.com/2024/03/was-appeal-possible-in-ex-parte-merryman.html>;

Briefs, Other Filings, and Related Media in United States v. Donald J. Trump (S.D. Fla.) and (11th Cir.) and, perhaps, later (U.S.)

S.D. Fla. Electronic Docket and Filings: <https://tinyurl.com/3kju33w4>; 

11th Circuit Electronic Docket and Filings: <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>;

Order, United States v. Trump, Case No. 9:23-cr-80101(s)-AMC-BER (S.D. Fla. June 4, 2024) (Cannon, J.), ECF No. 604 (granting Tillman/Landmark Legal Foundation's motion, and giving Professor Blackman 30 minutes of argument time), <https://tinyurl.com/3kju33w4>;  

Motion for Leave of Professor Seth Barrett Tillman and Landmark Legal Foundation to Participate in Oral Argument as Amici Curiae Oral Argument in Support of Defendant Trump’s Motion to Dismiss the Indictment [ECF No. 326], United States v. Trump, Case No. 9:23-cr-80101(s)-AMC-BER (S.D. Fla. May 31, 2024) (filed by Professor Josh Blackman & Michael Adam Sasso, Esq.), ECF No. 590, 2024 WL 2024 WL 2833495, <https://ssrn.com/abstract=4837841>, <https://tinyurl.com/3kju33w4>; 

Brief of Professor Seth Barrett Tillman and Landmark Legal Foundation as Amici Curiae in Support of Defendant Trump’s Motion to Dismiss the Indictment, United States v. Trump, Case No. 9:23-cr-80101-AMC-BER (S.D. Fla. Mar. 2024) (filed by Professor Josh Blackman & Michael Adam Sasso, Esq.), ECF No. 410, 2024 WL 1214430, <https://ssrn.com/abstract=4755563>, <https://tinyurl.com/3kju33w4>; 

ECF No. 411 (issuing an order granting Tillman/Landmark’s motion to file an amicus brief, and also granting parties an opportunity to respond by Thursday, April 4, 2024), <https://tinyurl.com/3kju33w4>; 

Brief by Constitutional Lawyers, Former Government Officials, and State Democracy Defenders Action as Amici Curiae in Opposition to Defendant Donald J. Trump’s Motion to Dismiss the Indictment Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith [ECF NO. 326] at 2, 12, and 15, United States of America v. Donald J. Trump, Case No. 23-80101-CR-CANNON-REINHART (S.D. Fla. Apr. 3, 2024) (filed by Christina Alonso and Matthew Seligman) (citing Blackman/Tillman amicus brief), ECF No. 429, 2024 WL 1469802, <https://tinyurl.com/3bv3tszm>; 

Government’s Response to Professor Seth Barrett Tillman, et al., Amici Curiae Brief in Support of Donald J. Trump’s Motion to Dismiss Based on the Appointment of the Special Counsel at 1, 3, 5–7, United States of America v. Donald J. Trump, Case No. 23-80101-CR-CANNON(s) (S.D. Fla. Apr. 4, 2024) (filed by Special Counsel Jack Smith) (citing Blackman/Tillman amicus brief), ECF No. 432, 2024 WL 1490604, <https://tinyurl.com/3kju33w4>; 

Order Setting Second Set of Pre-Trial Deadlines/Hearings at 2 n.3, United States of America v. Donald J. Trump, Case No. 9:23-cr-80101-AMC (S.D. Fla. May 7, 2024) (“Any amici wishing to present oral argument during this hearing must seek leave of Court to do so no later than June 3, 2024”), ECF No. 530, <https://tinyurl.com/2z7eaaet>; 

OPINION: United States v. Trump, Case No. 9:23-cr-80101-AMC, 2024 WL 3404555, 2024 U.S. Dist. LEXIS 123552, --- F. Supp. 3d ----, slip op. at 81 n.60, 84 n.63 (S.D. Fla. July 15, 2024) (Cannon, J.), ECF No. 672 (citing Blackman/Tillman amicus brief), <https://tinyurl.com/hk4z7e76>.

ELEVENTH CIRCUIT FILINGS:

Brief for the United States, United States of America v. Donald J. Trump, Case No. 24-12311-J (11th Cir. Aug. 26, 2024), ECF No. 18, 2024 WL 4010284, <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>.

Brief of Amici Curiae Citizens for Responsibility and Ethics in Washington Supporting Appellant United States of America and Reversal of Judgment, United States of America v. Donald J. Trump, Case No. 24-12311-J (11th Cir. Sept. 3, 2024), ECF No. 25-2, 2024 WL 4042248, <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>.

Brief of Amici Constitutional Lawyers, Former Government Officials, and State Democracy Defenders Action Supporting Appellant United States of America and Reversal of Judgment, United States of America v. Donald J. Trump, Case No. 24-12311-J (11th Cir. Sept. 3, 2024), ECF No. 27-3, 2024 WL 4069363, <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>.

Motion for Leave to File Brief of Amici Curiae Robert W. Ray, Professor Seth Barrett Tillman, and Landmark Legal Foundation, Supporting Defendants-Appellees Donald J. Trump, Waltine Nauta, and Carlos De Oliveira, United States v. Trump, Case No. 24-12311-J (11th Cir. Oct. 1, 2024) (filed by Professor Josh Blackman and Michael Adam Sasso, Esq.), ECF. No. 37-1, 2024 WL 4375328, <https://ssrn.com/abstract=4973968>, <https://reason.com/wp-content/uploads/2024/10/2024-10-01-37-1-Ray-Brief.pdf>, <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>.

Brief of Amici Curiae Robert W. Ray, Professor Seth Barrett Tillman, and Landmark Legal Foundation, Supporting Defendants-Appellees Donald J. Trump, Waltine Nauta, and Carlos De Oliveira, United States v. Trump, Case No. 24-12311-J (11th Cir. Oct. 1, 2024) (filed by Professor Josh Blackman and Michael Adam Sasso, Esq.), ECF. No. 37-2, 2024 WL 4375368, <https://reason.com/wp-content/uploads/2024/10/2024-10-01-37-1-Ray-Brief.pdf>, <https://ssrn.com/abstract=4971359>, <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>. 

Brief of Appellee President Donald J. Trump, United States v. Donald J. Trump, Case No. 24-12311-J (11th Cir. Oct. 25, 2024), ECF No. 42, 2024 WL 4635020, <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>. 

AMICUS CURIAE BRIEF OF THE AMERICAN CENTER FOR LAW AND JUSTICE, SUPPORTING APPELLEES, United States v. Trump, Case No. 24-12311-J (11th Cir. Nov. 1, 2024), ECF. No. 50, 2024 WL 4649104, <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>; 

BRIEF OF THE STATES OF FLORIDA, IOWA, ALABAMA, ALASKA, ARKANSAS, IDAHO, INDIANA, KANSAS, KENTUCKY, LOUISIANA, MISSISSIPPI, MISSOURI, MONTANA, NEBRASKA, OKLAHOMA, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH, AND WEST VIRGINIA AS AMICI CURIAE IN SUPPORT OF APPELLEES AND AFFIRMANCE, United States v. Trump, Case No. 24-12311-J (11th Cir. Nov. 1, 2024), ECF. No. 52, 2024 WL 4666684, <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>; 

BRIEF OF THE STATE OF TEXAS AS AMICUS CURIAE IN SUPPORT OF DEFENDANTS-APPELLEES, United States v. Trump, Case No. 24-12311-J (11th Cir. Nov. 1, 2024), ECF. No. 56, 2024 WL 4666679, <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>; 

Brief of Former Attorneys General Edwin Meese III and Michael B. Mukasey, Professors Steven Calabresi and Gary Lawson, Citizens United, and Citizens United Foundation as Amici Curiae Supporting Affirmance, United States v. Trump, Case No. 24-12311-J (11th Cir. Nov. 1, 2024), ECF. No. 58-2, 2024 WL 4666680, <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>; 

Brief Amicus Curiae of America’s Future, America First Policy Institute, Gun Owners of America, Gun Owners Foundation, Gun Owners of California, U.S. Constitutional Rights Legal Defense Fund, Public Advocate of the United States, One Nation Under God Foundation, and Conservative Legal Defense and Education Fund in Support of Defendants-Appellees and Affirmance at 5 n.2, United States v. Trump, Case No. 24-12311-J (11th Cir. Nov. 1, 2024) (citing Blackman/Tillman amicus brief in S.D. Fla.), ECF. No. 54, 2024 WL 4666688, <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>; 

Brief of Amicus Curiae Alex Kozinski at 3, 8, 12 n.2, 19 n.3, 29, United States v. Trump, Case No. 24-12311-J (11th Cir. Nov. 1, 2024) (filed by Eric Heigis, Esq. et al. and the Texas Public Policy Foundation) (citing Blackman/Tillman 11th Circuit amicus brief), ECF. No. 65-2, 2024 WL 4666681, <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>;

Special Counsel’s Motion for Abeyance of Briefing Schedule until Monday, Dec. 2, 2024 (Nov. 13, 2024);

Motion granted (Nov. 14, 2024);

Reply Brief for the United States, United States of America v. Donald J. Trump, Case No. 24-12311-J (11th Cir. forth. circa Dec. 2, 2024), ECF No. --, 2024 WL -------, <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>.

FILINGS also available: <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>;

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MEDIA: 

A.R. Hoffman, ‘A “Most Extraordinary” Hearing Is Set by Judge Cannon Over Whether Jack Smith Can Try Trump,’ The New York Sun (June 5, 2024, 4:39:47 AM), <https://www.nysun.com/article/a-most-extraordinary-hearing-is-set-by-judge-cannon-over-whether-jack-smith-can-try-trump> (linking to Blackman/Tillman amicus brief); 

A.R. Hoffman, Jack Smith Is, in Constitutional Terms, “Too Big for His Britches,” Author of New Brief in Trump Case Says, New York Sun (Mar. 29, 2024, 15:06:46 PM), <https://www.nysun.com/article/jack-smith-is-too-big-for-his-britches-and-not-entitled-to-prosecute-trump-a-new-brief-argues-to-judge-cannon> (citing Blackman/Tillman’s S.D. Fla. Amicus brief); 

Terrance Kible, Law Prof Challenges Validity of Special Counsel’s Appointment in Trump Classified Documents Case, Legal Insurrection (Apr. 7, 2024, 4:00 PM), <https://legalinsurrection.com/2024/04/law-prof-challenges-validity-of-special-counsels-appointment-in-trump-classified-documents-case/> (citing Blackman/Tillman amicus brief in S.D. Fla.);

Armin Rosen (interviewing Seth Barrett Tillman), The Outsider Legal Genius Who May Rescue Trump, Tablet Magazine (Mar. 22, 2024), <https://www.tabletmag.com/sections/news/articles/outsider-legal-genius-seth-tillman-trump>; 

Ursula Faw, Judge Luttig Slaps Back At Crackpot Attempt To Derail Docs Case, PolitiZoom (Mar. 21, 2024), <https://politizoom.com/judge-luttig-slaps-back-at-crackpot-attempt-to-derail-docs-case/>; 

Kathleen Culliton, “Crackpot”: Pro-Trump lawyer wants to rehash Mueller argument in classified document case, Raw Story (Mar. 21, 2024 1:48 PM ET), <https://www.rawstory.com/josh-blackman-trump/>; 

Mark Joseph Stern (@mjs_DC) on Twitter, Josh Blackman is seeking permission to file an amicus brief (Mar. 21, 2024, 3:22 PM), <https://twitter.com/mjs_DC/status/1770833252971925833>;

Charlie Savage, A Legal Outsider, an Offbeat Theory and the Fate of the 2024 Election, New York Times (Feb. 7, 2024, 13:50 PM ET), <https://www.nytimes.com/2024/02/07/us/politics/tillman-constitution-trump-colorado-ballot.html?unlocked_article_code=1.Tk0.8VLD.lkfvuRDHWfs0>; 

Adam Liptak, ‘Lonely Scholar With Unusual Ideas’ Defends Trump, Igniting Legal Storm, New York Times, Sept. 25, 2017, <https://www.nytimes.com/2017/09/25/us/politics/trump-emoluments-clause-alexander-hamilton.html?mtrref=Undefined>; 

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Seth Barrett Tillman, ‘Briefs, Other Filings, and Related Media in United States v. Donald J. Trump (S.D. Fla.) and (11th Cir.) and, perhaps, later (U.S.),’ New Reform Club (Mar. 18, 2024, 12:12 PM), <https://reformclub.blogspot.com/2024/03/briefs-and-other-filings-in-united.html>; 

A Chinese Report of the Colorado Section 3 Case

 

Sun Chenghao, ‘The Supreme Court and Trump’s candidacy: controversy, trends and impact,’ American Observer #89 (Jan. 19, 2024), <https://ciss-tsinghua-edu-cn.translate.goog/info/wzjx_mggc/6870?_x_tr_sl=zh-CN&_x_tr_tl=en&_x_tr_hl=en&_x_tr_pto=sc>, <https://ciss.tsinghua.edu.cn/info/wzjx_mggc/6870>; 

Dr Sun Chenghao is a Fellow at the Center for International Security and Strategy, Tsinghua University. He wrote: “[S]everal scholars argue that the President of the United States does not meet the definition of ‘public office’ in the context of the establishment of the Constitution, and therefore Trump cannot be the subject of the disqualification clause. This view is also held by a few hardline conservatives.” In support of this view, Dr Sun cited Blackman & Tillman’s ‘Response to Baude & Paulsen’ in Tex. Rev. L. & Pol. (forthcoming). 

I have only read a translation of Dr Sun’s post on American Observer <美国观察>. It strikes me the author (writing in Chinese) was well informed and made a good faith attempt at balance. Certainly, he was better informed and more even-handed than many in the English-speaking world who had reported on Colorado’s Section 3 case.

Seth Barrett Tillman, ‘A Chinese Report of the Colorado Section 3 Case,’ New Reform Club (Mar. 18, 2024, 4:00 AM), <https://reformclub.blogspot.com/2024/03/a-chinese-report-of-colorado-section-3.html>; 

The Law of the Case: Trump v. Anderson

 

 

Anderson v. Griswold, Colo. Sec. of State and Intervenors Republican State Central Cmt., Case No. 2023CV32577, 2023 WL 8006216 (Dist. Ct., City and County of Denver, Colo., Nov. 17, 2023) (Wallace, J.), slip. op. at 95–102 (holding that a president is not an “officer of the United States” for the purposes of Section 3 of the Fourteenth Amendment), rev’d Anderson v. Griswold, Sec. of State and Intervenor-Appellee/Cross-Appellant Donald J. Trump, Case No. 23SA300, 2023 CO 63, 2023 Colo. LEXIS 1177, 2023 WL 8770111, 543 P.3d 283 (Colo. Dec. 19, 2023) (per curiam), rev’d Trump v. Anderson, U.S. Sup. Ct. No. 23-719, 2024 WL 899207, 2024 U.S. LEXIS 1190, 144 S. Ct. 662, 601 U.S. ---- (U.S. Mar. 4, 2024) (per curiam), <https://supremecourt.gov/opinions/slipopinion/23>, <https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-719.html>; 

 

Because the Supreme Court of the United States reversed the decision of the Colorado Supreme Court, the opinion and order of the state trial court judge remain good, persuasive law. The Colorado state trial court held that the President of the United States is NOT an “officer of the United States.” The trial court’s decision has not been overturned, overruled, or vacated. Although the trial court’s decision was reversed (by the Colorado Supreme Court), that reversal was itself reversed (by the U.S. Supreme Court). So the first-in-time reversal is a nullity. 

 

That’s the law of the case.

 

Seth Barrett Tillman, ‘The Law of the Case: Trump v. Anderson,’ New Reform Club (Mar. 5, 2024, 2:37 AM), <https://reformclub.blogspot.com/2024/03/the-law-of-case-trump-v-anderson.html>;

 

Political Evangelism in Today’s Ireland

 

Under proportional representation, voters pick the members of the legislature, not the government or cabinet or executive. Under proportional representation, the members of the governing coalition having executive power or forming the cabinet is not under the control of the voters. Rather, it depends on the bargaining positions and skills of the elected parties after the election. Proportional representation has advantages if your nation has no external enemies or has farmed out its defense to third parties. If the greatest threat your nation fears is a portion of its own citizens, then proportional representation may be the best way to organize your elections. 

On the other hand, where a nation faces actual external threats, proportional representation inhibits decisive action by the executive during war time and other emergencies. Proportional representation makes decisive action during war time and other emergencies difficult because different parties within the governing coalition or cabinet have different interests, will shift blame, and will look to their position in the next poll and in the next election. A multi-headed executive invites a lack of transparency, a lack of accountability, and a lack of responsibility. The reality is that proportional representation undermines collective cabinet responsibility. So sure, proportional representation might very well work here, in Ireland, but whether it is a good model for other countries ... I have doubts. See Federalist No. 70 (1788) (Hamilton); see also Federalist Nos. 77 & 85 (1788) (Hamilton). 

 

Seth Barrett Tillman, ‘Political Evangelism in Today’s Ireland,’ New Reform Club (Mar. 4, 2024, 2:42 AM), <https://reformclub.blogspot.com/2024/03/political-evangelism-in-todays-ireland.html>;

Jason O’Mahony (@jasonomahony) on Twitter (Mar. 4, 2024, 6:20 AM), <https://twitter.com/jasonomahony/status/1764536411087122802>;