Letter to the Editor at National Review Online, When Does the President “Abuse” the Pardon Power?

Seth Barrett Tillman, Lecturer

Maynooth University Department of Law

  

May 19, 2020

National Review Online: The Corner

Letter to the Editor

letters@nationalreview.com

RE:    Andrew C. McCarthy, An Answer for Ramesh, National Review: The Corner (May 19, 2020, 11:51 AM), <https://www.nationalreview.com/corner/an-answer-for-ramesh/>.

Andrew McCarthy wrote:

If Senator Romney were to say, ‘A president cannot pardon all of his cronies who are suspected of crimes,’ he’d be wrong. If [Romney] were instead to say, ‘A president who pardons all such cronies grossly abuses his powers, and that Congress should block him until he desists and impeach him if he doesn’t,’ that’s a perfectly reasonable argument—and if the president suffers politically as a result, that’s what’s supposed to happen.

Who is or who isn’t a “crony” is the sort of contestable political view which is the subject of elections, not impeachments—that’s particularly true because our Constitution protects political association. The President abuses his pardon power when he exercises it in exchange for a boatload of cash, which he proceeds to hide in his closet, and then fails to disclose it to the public (and to the tax man). That’s a bribe. Short of that, his exercising the pardon power is just contestable politics. Too often, the issue of who is a “crony” and what is “abuse” are just political opinions and lawfare masked as statecraft. To make a President’s term of office wholly dependent on what his political opponents see as “abuse” is to render the President dependent on Congress—and that is not and has never been how our government was organized.

One other point. The President’s opponents (and, regrettably, some others) consistently frame the issue in terms of whether the President can be impeached for anything but a statutory violation of the criminal code. Once they conclude that the President can be impeached for some wrongs which are not statutory violations, they then proceed to argue that any non-crime based on any difference of political opinion amounts to impeachable abuse of office or abuse of powers. The proponents of this view, i.e., that the President can be impeached for “abuse” of office or for “abuse” of his powers, never actually get around to explaining what “abuse” is—what are its elements—and what defenses (if any) are applicable. See, e.g., Kelly v. United States, No. 18-1059, 2020 WL 2200833, 140 S. Ct. 1565 (May 7, 2020) (Kagan, J., for a unanimous court) (discussing abuse of power in dicta), <https://www.supremecourt.gov/opinions/19pdf/18-1059_e2p3.pdf>. 

The reality is that that “abuse” of office or “abuse” of powers, as it has been pitched to the public, amounts to an Orwellian thought crime—which seeks to overturn an election based on wrong think and mundane disagreements about policy, which, in normal times, would be the subject of elections, not impeachments (and not a process of recasting political differences as accusations of legal wrongdoing, with concomitant investigations, and threats of prosecution). 

Seth

Seth Barrett Tillman, Submitted as a Letter to the Editor at National Review Online: The Corner, When Does the President “Abuse” the Pardon Power?, New Reform Club (May 19, 2020, 12:36 PM), <https://reformclub.blogspot.com/2020/05/when-does-president-abuse-pardon-power.html>. 

Was John Merryman a Prisoner of War?

General Cadwallader’s brother was a federal district court judge. In a critique of the Merryman litigation, Judge Cadwallader took the position that Chief Justice Taney should have ruled that the Army’s detaining John Merryman was lawful because Merryman was a prisoner of war.  

I do not think much of Judge Cadwallader’s position. Merryman was not in the armed forces of any state or nation at war against the United States. Merryman’s petition made no such factual claim. General Cadwallader’s response to Merryman’s petition does not say Merryman was in a foreign army or in a military unit subject to military law or the law of land warfare. So it was the criminal law or nothing.

Judge Cadwallader’s view amounted to judicial activism—he was asking Taney to take judicial notice of a wider set of facts (and potential defenses) relating to hostilities that were not in the record, not in the applicant’s petition, and that General Cadwallader would not plead in his response—most likely at the instruction of his home government and the Army’s law officers. Why? If Merryman was in a foreign army, then the implication was that the Union and its army were invaders. If Merryman was in a foreign army, then the implication was that he was not a criminal, and that he could only be held under the laws of war until hostilities end—and then not punished. These were important policy decisions for the Army’s law officers and the Attorney General, the cabinet, and ultimately, for the President—not for General Cadwallader, who was a military district commander in a loyal state on the eve of general hostilities.

I think when most members of state militias are caught breaking civilian law and destroying property (as Merryman was accused of), they are charged as civilians with a civilian crime. In such circumstances, they are entitled to the full set of rights and judicial processes guaranteed to civilians by the Constitution and the Bill of Rights. But then, even the fact that Merryman was in the Maryland militia, was not in the record. Neither the applicant nor Cadwallader were willing to bring that fact to Taney’s attention (which, I expect, the court had already known).

When I first started studying this case, I thought Merryman was a traitor who was caught doing wrong. But having studied it, my sense is that he was agnostic about the war (and about his state’s participation in the war), and he thought he was following lawful orders from the civilian authorities when he burned bridges. These were bridges he had an indirect property interest in, and so, he was acting somewhat selflessly against his personal interests. He was a man in the wrong place at the wrong time doing the wrong thing. As Rumpole would say: “an unfortunate constellation of facts.” Still, he never should have been detained or indicted. (He was never actually tried, much less convicted in a proper judicial proceeding.) If Merryman was guilty of a crime, and I say if, there were many, many more who were much more guilty and who had done, who were ready to do, and who would go on to do much worse. If he was disloyal, and I say if, there were many, many more who were much more disloyal and who had done, who were ready to do, and who would go on to do much worse. 

The problem was once the Army had seized John Merryman, the civilian government could not back down without risking its ability to compel obedience. At that juncture, if the Union government had given in, it would appear that all traitors enjoyed a free ride, like a get-out-of-jail-free card, and Northern morale and faith in the new President would have collapsed. Merryman, like Vallandigham, was an unfortunate talking point for Confederate disobedience—but it was all unnecessary. If the U.S. government was going to detain people and do so absent due process and absent congressional suspension, then there were many, better candidates for the Army to seize. Such persons would have made better test cases and would have put those opposing the lawful government in the position of defending actual traitors who were actually dangerous. Merryman was not the place to draw a line in the sand.

Seth

Seth Barrett Tillman, Was John Merryman a Prisoner of War?, New Reform Club (May 18, 2020, 7:41 AM), <https://reformclub.blogspot.com/2020/05/was-john-merryman-prisoner-of-war.html>; 

About that judge who gives civil rights presentation to jurors...

[I received this from a friend who asked me to publish it here at NRC--TVD]


by Peter Fallow

Eugene Volokh reports on the the Los Angeles trial judge who "delivered a presentation to the jury highlighting major figures in the civil rights movement, and told the jury their duty was to stand in the shoes of Dr. Martin Luther King and bend the arc of the moral universe toward justice." That jury returned a verdict over $13 million against the defendant, UCLA. It was reversed on appeal, in part -- though only in part (this is Los Angeles, after all) -- because of the the judge's civil-rights presentation.

The judge is the Hon. Michael Linfield. Here is his bio. There is a website called The Robing Room where local practitioners may provide feedback (anonymously) about their experiences with judges. Any reviews on The Robing Room should be read with a great deal of skepticism, as what very often motivates a lawyer or litigant to submit a review is a sore court loss, the cause of which may or may not lie with any failings on the part of the judge. But what is interesting in Judge Linfield's Robing Room reviews are the repeated instances of different attorneys mentioning the judge's "civil rights presentations.

Here is one review:

... Linfield begins preaching to your jury as soon as they are impaneled. He will show a civil rights slide show to them in court. I'm being serious here. He shows them a slide show and tells them the "arc of truth bends toward justice" or some such BS. He shows slides of him with MLK Jr and implies that litigants whose rights were violated will have their day in court with him....

Here is another review:

His legal history presentations before his calendar are not appropriate and frankly, juvenile and condescending ....

Another:

When you enter his court room, he actually shows the audience a video and summary of what has occurred today in the history of law....

And another:

In light of his morning history lessons....

These selected comments are between 2016 and 2019. So it appears Judge Linfield has been delivering this presentation since at least 2016.

There is a mention in the appellate decision of a "video" (though not a "slide show") being included in Judge Linfield's presentation to the jury. Unfortunately, it was "not part of the record on appeal." Perhaps the rest of the public should have the benefit of this pedagogical tool that Judge Linfield found necessary to "bend the arc" toward justice?

To repeat, the Court of Appeal reversed only in part because of Judge Linfield's presentation. UCLA had moved for a mistrial immediately after Judge Linfield's presentation, which Judge Linfield denied. The Court of Appeal could have held Judge Linfield should have granted the mistrial. It did not. Thus, the decision does not necessarily mean Judge Linfield will put an end to his years'-long practice of presenting his history lesson to juries.

Judge Linfield's bio indicates he published a book in 1990. It is available on Amazon. Here is the back flap. Note the author of the lead review:

Add caption

It would be unfair to hold Judge Linfield responsible for Howard Zinn, that infamous political activist who made a living as a historian. But under the circumstances, the intersection is... interesting. Were he still alive, would Zinn hesitate to lend his endorsement to Judge Linfield again for A Jury's History of the United States?

Questions Looking for Answers: Judge Sullivan and General Flynn

Motion practice query. Where a judge appoints an amicus to represent a party or continue a litigation or prosecution because of an absence of adversity, then do not the parties first get notice and an opportunity to be heard to contest the appointment? Or does the court act on its own, make the appointment, and then allow the parties to make objections after-the-fact?

If the court had prior contacts with the amicus—eg, a beauty contest or competition for the starring amicus role—do the parties get to see the records of those contacts between the court and the amicus?

Who, if anyone, has oversight over Amicus (Inquisitor) Gleeson? Is it DOJ? Can DOJ assert authority over Gleeson or “his” case, like in a qui tam matter? Does Gleeson take an oath of office to support the Constitution? Is Gleeson subject to the ethical guidance which applies to federal prosecutors or the other policies of the DOJ?

Is Gleeson subject to the Appointments Clause?

Does Gleeson get paid compensation or expenses? Under what statute? Also, if he is now a public official, where can he be contacted for the right to petition? Will he get office space at the courthouse? If he is working at home, how will he secure communications which are confidential or secure materials which are public property under various records laws, and therefore must be preserved? Is Gleeson subject to Freedom of Information Act?

Does Gleeson get protection from the U.S. Marshal’s office?

When a U.S. federal judge sentences a person to a term in jail, does that order require the Executive Branch to put the person in jail, or is that merely authorization to put the person in jail? If the Executive Branch says: “We only jail people if we bring the prosecution,” then will Judge Sullivan hold the U.S. Marshal Service and the Federal Bureau of Prisons in contempt too? Where does this process of endless judicially-organized contempts and prosecutions end? 

Sorry just one more query. If Amicus Gleeson represents a party, does not he have to be a member of the bar for the U.S. District Court for the District of Columbia? Is he a member? [Gleeson is not a member of the District of Columbia bar. See <https://join.dcbar.org/eweb/DynamicPage.aspx?Site=dcbar&WebCode=FindMemberResults>] 

It turns out that you can look up who is and who is not a member of the bar for the U.S. District Court for the District of Columbia (DDC). See <https://www.dcd.uscourts.gov/bar-memberattorney-information-lookup>. If you look up John Gleeson, he is not listed as a member of the DDC bar. Finally, John Gleeson is listed on his law firm’s website. <https://www.debevoise.com/johngleeson?tab=biography>. Under bar admissions, he lists “New York” and that is it. Of course, I expect that this could be fixed with a pro hac vice motion. Has one been filed? 

Seth 

PS: Thank you Instapundit and Instapundit readers! While you visit NRC, have a look around ... my co-bloggers do good work. 

Seth Barrett Tillman, Questions Looking for Answers: Judge Sullivan and General Flynn, New Reform Club (May 14, 2020, 4:10 AM), <https://reformclub.blogspot.com/2020/05/questions-looking-for-answers-judge.html>; 

The Real World

If you were a judge who is afraid of his own shadow, afraid what you might do, what you should do, what the law seems to demand, will be deeply unpopular with 1/2 the nation, what would you do before ruling? What should you do?

If you were a judge who has deep humility, who recognizes the law is ambiguous, and the point was deeply uncontested, what would you do before ruling? What should you do?

It happens all the time that judges call for amicus participation. Don’t read too much into it.

If you are a loudmouth legal academic or serial-amicus filer public interest law “firm” or think tank that has opined ceaselessly on the Flynn matter as being 100% clear, but you do not file now—when asked to do so by a federal judge ... at a time when the very rule of law and a just legal system hangs in the balance (according to both sides) … then why should anyone listen to you ever again? Why should anyone donate to your 501(c)(3) organization ever again? Why?

For an entirely different point of view, see <https://twitter.com/Techno_Fog/status/1260368540722442240>, and <http://www.documentcloud.org/documents/6889388-Strike.html>. 

Seth

Seth Barrett Tillman, The Real World, New Reform Club (May 13, 2020, 3:44 AM), <https://reformclub.blogspot.com/2020/05/the-real-world.html>; 

An Ocean of Fundamental Rights

A friend and former colleague Ben Pugh has this piece, "Do We Have the Constitutional Right to Go to the Beach?" answering the question in the affirmative. Do read the piece. Ben is an excellent attorney, a constitutionalist, and analyzes cases closely. He lets the cases speak for themselves, speaking in his own voice only to bring them to focus on the question at hand.

"Do we have a Constitutional right to go to the beach?" It is worth a brief pause to linger over the words. Doing so might put us into the same pattern of thought as Theodore Sedgwick of Connecticut when considering whether we needed a Bill of Rights to express other Constitutional rights. “Why," he scoffed, "don’t you specify my right to get up in the morning, my right to walk down the street, my right to wear a hat?” The Constitution is such a significant thing, while walking, hat-wearing, and beach-going are such trivial things. Though it be rightful, there is something decadent about scarfing doughnuts off of fine china.

We would do well to remember there is worse threatened than mere legal error -- we face risks against which our lawyers can offer no counsel.

Consider how well has fared the Constitutionalizing of all rights. In 1989, after the U.S. Supreme Court upheld the right to burn the flag, the Today show interviewed a spokesman for the American Legion. Host Jane Pauley asked what the flag means to veterans. "The flag," the legionnaire replied, "is the symbol of our country, the land of the free and the home of the brave." Pauley pressed, however: "What exactly does it symbolize?" Recounting this episode in her book Rights Talk: The Impoverishment of Political Discourse, Mary Ann Glendon observed that the legionnaire "seemed exasperated in the way people sometimes get when they feel there are certain things that should not have to be explained." He finally replied, "It stands for the fact that this is a country where we have the right to do what we want." Glendon concludes:

Given time for thought, he almost certainly would not have expressed himself in that way. His spontaneous response, however, illustrates our tendency, when we grope in public settings for the words to express strong feelings about political issues, to resort to the language of rights.

It remains the law that we have a right under the Constitution to burn the flag which represents it. Yet we do not, it would seem, have a Constitutional right to imbibe sugary beverages, judging from the example of New York City. We in America still have a right to have doughnuts on fine china. And you even have a Constitutional right to smash the china. But, you mustn't eat the doughnuts.

So back to Ben's piece: Do we have a Constitutional right to go to the beach? Yes, I would agree. I have that right as much as my right to get up in the morning, to walk down the street, and to wear a hat. But this affords me no comfort. Judge Robert Bork, that great villain of modern Constitutional law, explained, in response to a law student hypothetical, why he would not conform to the fashion of finding more rights in the Constitution:

Once, after I had given a talk on the Constitution at a law school, a student approached and asked whether I thought the Constitution prevented a state from abolishing marriage. I said no, the Constitution assumed that the American people were not about to engage in despotic insanities and did not bother to protect against every imaginable instance of them. He replied that he could not accept a constitutional theory that did not prevent the criminalization of marriage. It would have been proper to respond that in any society that had reached such a degenerate state of totalitarianism, one which the Cambodian Khmer Rouge would find admirable, it would hardly matter what constitutional theory one held; the Constitution would long since have been swept aside and the Justices consigned to reeducation camps, if not worse. The actual Constitution does not forbid every ghastly hypothetical law, and once you begin to invent doctrine that does, you will create an unconfinable judicial power.

An all-encompassing theory of Constitutional rights is neither necessary nor sufficient for the survival of the American experiment. If we cannot continue to roughly agree we all have rights to wear hats and go to the beach, there is little help a court can offer. It remains for each to say: I will exercise my right to go to the beach, and if you stand in my way, then I will also exercise my right to knock off your hat.

Covid-19 and Partisan State Control

There are 10 states above the national average in deaths per million.

There are 21 states with Republican governors and where both legislative houses are under Republican control. Not one of those state’s deaths per million is over the national average.

Again, there are 10 states above the national average in deaths per million. 5 of those 10 states are under exclusive Democratic control (among 15 states under exclusive Democratic control). And 5 of those 10 states have divided partisan control between the legislature and governor (among 13 states with divided partisan control).

Of the top-3 states, with the highest deaths per million, all 3 are under exclusive Democratic control. 

See <https://ncsl.org/Portals/1/Documents/Elections/Legis_Control_2019_Post-Election%20Nov%2022nd.pdf>;

<https://worldometers.info/coronavirus/country/us/> (as of May 12, 2020).

Seth

PS: Nebraska is not in the analysis--as it has a unicameral, non-partisan legislature. It has a R governor, and its deaths per million is well under the national average.

Seth Barrett Tillman, Covid-19 and Partisan State Control, New Reform Club (May 12, 2020, 7:14 AM), <https://reformclub.blogspot.com/2020/05/covid-19-and-partisan-state-control.html>; 

Modelers Behaving Badly

On Joseph C. Sternberg's recommendation in the WSJ, I read John Kay and Mervyn King's Radical Uncertainty: Decision-Making Beyond the Numbers. Its March 2020 release was serendipitous timing for a book detailing why experts often fail so badly to predict outcomes of grave consequence, like the Covid-19 global emergency whose consequences were first widely felt in the U.S. and Europe that month -- largely because of policies taken in response to the grim predictions of modelers. In the book, Kay and King explain why modelers are so often wrong -- largely because we use their models for a purpose for which they are not designed.

Here is an example Kay and King offer of modelers behaving badly:

"By the 1960s, greater effectiveness of modern fishing technology had led to overfishing in many locations. In 1968 an unsustainable catch of 480,000 tons of cod was harvested from the shores of Newfoundland, and cod stocks began to decline. Many countries reacted to overfishing by extending their territorial waters to protect their domestic fisherman. In 1977 Canada took control of almost all the waters of the Grand Banks.  The country set out in organized Canadian fashion to promote a fishing industry that would revive the flagging economies of Nova Scotia and Newfoundland. The government provided subsidies for trawler construction and charged the Dominion Fisheries Office with determining the total allowable catch, that catch to be set to ensure not only the survival but the growth of stocks and the gradual expansion of the industry. The Fisheries Office developed complex models on which its recommendations were based, but cod stocks continued to decline. For the year 1992, the total allowable catch was set at 145,000 tons. That proved to be the last year of commercial cod fishing on the Grand Banks. The fish are gone, and in the course of that year, the industry finally closed. Today only around 5000 tons of cod are caught annually on rod and line by recreational and artisinal fishermen.

"It would be wrong to hold the modelers solely responsible for the collapse of the Grand Banks fisheries. Greedy fishermen and mendacious politicians should take most of the blame. But the modeling exercises were used to justify the actions and inactions of politicians and big industry.  The original impulse to determine catch limits based on insights from modeling and environmental science was effectively inverted: the evidence generated by the models ended up justifying the policy rather than actually protecting fish stocks. The modelers were complicit in an environmental disaster."

The economist Thomas Sowell provides in his popular and accessible (and thus, most sophisticated readers would likely conclude, discreditable) book Basic Economics many other examples why expert-guided leadership fares no better, and often much worse, than plain common sense. Specifically on the topic of modelers behaving badly, Sowell offers this example:

"Planners can easily make false projections, either from ignorance or from various political motives, such as seeking more power, re-election, or other goals. For example, during the 1970s, government scientists were asked to estimate the size of the American reserves of natural gas and how long it would last at the current rate of usage. Their estimate was that the United States had enough natural gas to last for more than a thousand years! While some might consider this good news, politically it was bad news at a time when the President of the United States was trying to arouse public support for more government programs to deal with the energy “crisis.” This estimate was repudiated by the Carter administration and a new study begun, which reached more politically acceptable results."

These two anecdotes are not enough to draw the conclusion that models are useless (or worse), or that modelers are inept (or worse). They should suggest, however, that leadership must be informed by more than mere models, and that modelers must be measured more than by their credentials.

Top-5 U.S. States in Deaths per Million of Population

#1: New York: 1285. Governor (D), and both legislative houses have D majorities.

#2: New Jersey 934. Governor (D), and both legislative houses have D majorities.

#3: Connecticut 735. Governor (D), and both legislative houses have D majorities.

#4: Massachusetts 617. Governor (R), and both legislative houses have D majorities.

#5: Louisiana 454. Governor (D), and both legislative house have R majorities.

Indiana is ranked #12 in deaths per million among US states (with DC): at 200 deaths per million. Indiana is the highest such state under exclusive Republican control, and it is below the national mean (at 218 deaths per million).

All states under exclusive Republican control come in below the national mean. All 11 states (with DC) above the national mean are under exclusive Democratic control, or have a Democratic legislature, or a Democratic governor.

But Trump is the problem? 

Seth

See <https://www.worldometers.info/coronavirus/country/us/> (May 6, 2020, 3:10 AM EST). 

Seth Barrett Tillman, Top-5 U.S. States in Deaths per Million of Population, New Reform Club (May 6, 2020, 3:15 AM), <https://reformclub.blogspot.com/2020/05/top-5-us-states-in-deaths-per-million.html>. 

Mastering the Change

I am a declinist. I see in most modern trends a loss of something, though the loss is always gradual, never total, and the something that once was, perhaps wasn't quite. 

Perhaps it is in the nature of created things that they are always in some form of decline. 

And perhaps it may be said that, while one thing is in its decline, another is in its ascent. We are still in the early generations of the historic ascent of the modern age of global wars, global trade, and global communities, including global diseases. 

Here is a passage from Herman Wouk's fictional memoir of Aaron Jastrow, A Jew's Journey, from Wouk's 1978 War and Remembrance. Jastrow, an apostate Jewish scholar and minor intellectual celebrity failed to escape central Europe during the rise of the Axis, now faces the decline of the world -- but the ascent of something within himself. It stirred something in me beyond my meager ability to express -- such is the gift of literature. Maybe it will in others as well:

Here under the Germans I resumed my Jewishness because they forced me to.

I have been in Theresienstadt about a year. I value this year more than all my fifty-one years of hefkerut, of being like others. Degraded, hungry, oppressed, beaten, frightened, I have found myself, my God, and my self respect here. I am terribly afraid of dying. I am bowed to the ground by the tragedy of my people. But I have experienced a strange bitter happiness in Theresienstadt that I missed as an American professor and as a fashionable author living in a Tuscan villa. I have been myself. I have taught bright-eyed, sharp-minded Jewish boys the Talmud. They are gone. I do not know whether one of them still lives. But the words of the Talmud lived on our lips and burned in our minds. I was born to carry that flame. The world has greatly changed, and the change was too much for me, until I came to Theresienstadt. Here I mastered the change, and returned to myself. Now I will return to Oswiecim, where I studied in the yeshiva and where I abandoned the Talmud, and there the Jew’s Journey will end. I am ready.

Jastrow, who in youth had cast aside his faith, was able to return to it. How great must be the ache of those who are never given anything of the transcendent to cast aside, or to which to return.

Letter to the Editor at the Boston Globe, On Murder Hornets

Letter to the Editor

The Boston Globe

<letter@globe.com>

May 5, 2020

A tweet by a Globe writer (reported here: <https://twitter.com/bennyjohnson/status/1257441793144209409>) suggesting that “murder hornets” should be released against people, including protesters, seems out of place during a pandemic. In fact, it is out of place at any time. 

Newspapers are in decline across the Western world. For that reason, you might consider who your customers are. 

Seth

Seth Barrett Tillman (a U.S. national living abroad)

Seth Barrett Tillman, Submitted as a Letter to the Editor at the Boston Globe, On Murder Hornets, New Reform Club (May 5, 2020, 3:12 AM), <https://reformclub.blogspot.com/2020/05/letter-to-editor-at-boston-globe.html>. 

Law Review Articles on Synchronicity of Bicameral Legislative Houses

Two bills were recently passed by the Oireachtas (i.e., the Irish national legislature): [1] Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020; and, [2] Emergency Measures in the Public Interest (Covid-19) Act 2020.

“It might be noted that the Oireachtas which enacted these measures consisted of the ‘new’ [post-general election] Dáil [i.e., the popularly elected lower house] and the ‘old’ Seanad [i.e., the upper house].” Gerard Hogan & Hilary Hogan, Legal and Constitutional Issues arising from the 2020 General Election 21 n.44 (Apr. 29, 2020), <https://ssrn.com/abstract=3587047>. Below is a list of law review articles and other sources touching on the discontinuity or synchronicity problem—problems associated with the two chambers of a bicameral parliament acting in different sessions or different “parliaments.” My understanding is that a lawsuit has been brought in the High Court challenging the validity/constitutionality of these two statutes.

Seth Barrett Tillman, Noncontemporaneous Lawmaking: Can the 110th Senate Enact a Bill Passed by the 109th House?, 16 Cornell J.L. & Pub. Pol’y 331 (2007), <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=505822>;

Aaron-Andrew P. Bruhl, Against Mix-and-Match Lawmaking, 16 Cornell J.L. & Pub. Pol’y 349 (2007), <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=932574>;

Seth Barrett Tillman, Defending the (Not So) Indefensible: A Reply to Professor Aaron-Andrew P. Bruhl, 16 Cornell J.L. & Pub. Pol’y 363 (2007), <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=956155>;

Aaron-Andrew P. Bruhl, Burying the “Continuing Body” Theory of the Senate, 95 Iowa L. Rev. 1401 (2010), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1427456>; 

Rivka Weill, Reviewing Continuity in Legislation, 37(3) Tel Aviv U. L. Rev. 563 (2016) (peer reviewed) (available on HeinOnline), <http://portal.idc.ac.il/FacultyPublication.Publication?PublicationID=3849&FacultyUserName=cndlaWxs>;

Saikrishna Bangalore Prakash, Of Synchronicity and Supreme Law, 132 Harv. L. Rev. 1220 (2019), <https://harvardlawreview.org/wp-content/uploads/2019/02/1220-1299_Online.pdf>; 

and,

James Fowkes, Prorogation of the Legislative Body, in Max Planck Encyclopedia of Comparative Constitutional Law 11 (Jan. 2017), <https://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e357?print=pdf>.

Supplement

Rivka Weill, The Living-Dead, 38 Fordham Int’l L.J. 387 (2015), <https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2381&context=ilj>;

Michael Stern, Legislative Discontinuity: An Introduction, Point of Order (May 19, 2018), <https://www.pointoforder.com/2018/05/19/legislative-discontinuity-an-introduction/>; 

     and, 

Michael Stern, Constitutional Text and Discontinuity, Point of Order (June 8, 2018), <https://www.pointoforder.com/2018/06/08/constitutional-text-and-discontinuity/>. 

-----

Seth Barrett Tillman, Law Review Articles on Synchronicity of Bicameral Legislative Houses, New Reform Club (May 5, 2020, 1:50 AM), <https://reformclub.blogspot.com/2020/05/law-review-articles-on-synchronicity-of.html>