A new Supreme Court librarian provides an opportunity to look at the Court's role in appointing its own officers—and how that might play into proposals to create an Article III Inspector General
Thank you, thank you for pointing out the importance of the mischief that can be caused long term by Alito's slaying of the idea that appellate courts should pay deference to the lower court conclusions by the triers of fact. That was the first thing I noticed about that dreadful decision and I've been howling about it all over Substack. "Clear Error" clearly has turned into "whatever the appellate judge thinks should have been decided." Alito is veering real close to a full fledged "independent state legislature" concept. With this, the whole idea behind our court structure is changed, changed utterly--with no terrible beauty anywhere in the vicinity.
Thomas was beyond belief with his guff about the High Court of Chancery in 1789. Whatever the actual posture of Alexander was below, the relief was basically very like injunctive relief--and what's a court of equity's main job????
I like the idea of the IG. Even if s/he couldn't make the judges answer for their ethical violations, a full investigative report of each would certainly focus attention on the issue in a way that the media couldn't really ignore--one hopes.
Yes, one of the first things that occurred to me when hearing about the Alexander decision, as well as Thomas’s concurrence, was how the majority’s deference to the states in their districting decisions and its assumption of “good faith” in that context conflicts with its utter lack of deference to, and outright hostility toward, affirmative action programs implemented by those same states. I guess racial bias that dilutes the voting power of minorities is somehow less important than the “dangers” of race-conscious college admissions policies?
I can’t read Brown v US, (No 22-6389, on certiorari to the US Court of Appeals for the Third Circuit, argued November 27, 2023, decided May 23, 2024 together with No 22-6640, Jackson v US, on certiorari to the US Court of Appeals for the Eleventh Circuit) without thinking of Shelly Silver.
To give the late Speaker of the New York State Assembly his due, he was very good at his job. The first time I went to a meeting of my local community board a cheerful young man strolled over to greet the unknown neighbor and ask why I’d come out that evening. Was there some problem? He didn’t even ask whether I was in his boss’ district (half a block out).
But no amount of good work cancels out corruption. Someone else could have been doing a good job without abusing the public’s trust.
The people convicted Mr. Silver (864 F3d 102 [2d Cir 2017], or Silver I), cert denied, 138 SCt 738 (2018) of seven federal crimes. Three counts involved honest services fraud and extortion under color of official right. He was duly sentenced. Two months later, Congress having made no statutory change, McDonnell v United States, 136 S Ct 2355 (2016) narrowed the definition of an “official act” (136 S Ct at 2371-72). Changing “official act” six months earlier would have changed Silver I. But such is life.
The Court’s action defied roughly half the statute.
A year passed. The ex-Speaker was granted a new trial on other grounds. The new jury convicted him again (Silver II, Docket No 18-2380).
Silver appealed Silver II citing McDonnell.
The Second Circuit reviewed the district’s jury charge de novo and overturned those three charges.
“The Court held that “an ‘official act’ is a decision or action on a ‘question, matter, cause, suit, proceeding, or controversy’” that involves “a formal exercise of governmental power,” is “specific and focused,” and is either “pending” or “may by law be brought” before a public official. (Silver II, 18-2380, 2d Cir, 2018).
But the second jury had been instructed to use the same definition as the first jury, “any action to be taken under color of official authority,” (Silver I, 864 F3d at 112). The courts had been upholding that definition at the time of Silver’s first conviction.
It was and is the only definition that satisfies the statute’s full text.
This is gonna be a long one - sorry, Steve!
The Hobbs Act, 18 USC 1951b2, defines public extortion as committed “with [victim] consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” Can a finding of victim consent require a quid pro quo under either circumstance? No.
But the Court in McCormick v US, 500 US 257 (1991) not only makes law but amends 18 USC 1951b2 by adding a quid pro quo requirement. This changes extortion, a crime committed by forcing one’s will upon another, to bribery, a fully mutual crime. Since we already have a bribery statute McCormick’s only impact is cutting the Hobbs Act’s enforceability, effectively immunizing officers who may have used force or violence to get their way. McCormick v US is still cited as “good law.”
If the Court thought it had made itself clear, the US attorneys didn’t. They had the temerity to file charges under the frowned-on Act again. In a flurry of furious decisions including Evans v US, 504 US 255 (1992) and US v McDonough, 56 F3d 381, 388 (2d Cir 1995) two courts not only expressly call extortion using force, threat, fear, or color of a public right the “rough equivalent of…’taking a bribe’”(504 US 255, 260 [1992]), they amend 18 USC 1951b2 even more, in two stages.
Stage One sounds like walking back the erroneous quid pro quo requirement without overturning it. It defines the difference between public extortion and bribery as the public officer’s inducing the bribe. Prosecutors need only prove inducement, not officer intent or a meeting of minds. Of course, requiring proof that the public officer expressly induced the bribe lowers one bar by raising another.
But it’s in Stage Two that the rough beast slouches in. The Evans Court redefines “inducement” as an inherent characteristic of a public office (504 US at 266), not an action by a public officer. What a gift to prosecutors! They can prove extortion without even proving the officer induced the bribe. Except…well, how does an inherent inducement induce? At this point I can’t help picturing malevolent grins. By “motivating” the victim. Since this requires a victim not only willing but motivated absent offender action, since it can even make public extortion an offense instigated by the victim, officer conduct becomes a nonissue.
Can proving inducement by a public officer in court with reporters taking notes be charged as prosecutorial misconduct? We don’t know. Nobody’s tried. The Supreme Court and the Second Circuit shut the People down. They amended a straightforward charge, one every nation’s law must have, into something law never covered and cannot use. Extortion under color of official right now all but approximates its opposite, extortion of a public officer by a private person.
We already have a statute for that, too.
Without Congress’ changing a semicolon, judicial action amended a necessary statute out of existence. These decisions violate the separation of powers.
They display judicial misconduct at its ugly nadir.
They remain “good law.”
McDonnell adds insult to injury.
In this decision the Court follows its successful pattern and amends the bribery statute out of useful existence by denying half its enforceability. Silver II will add its own touch, using the judge-made amendment beyond the time when a change to a statute can affect a case. But let’s talk McDonnell. This organization disseminated and published two commentaries on it, a satire after oral argument and a serious rebuttal after the decision.
a Socratic dialogue RepairRestoreSafeguard published after oral argument for McDonnell v US, S Ct 15-474, argued April 27, 2016. You can probably follow along, but the transcript is at oyez.org/cases/2015/15-474.
Note:
The standard in this case is 18 USC §201(a)(3) that makes it a crime for a public officer to directly or indirectly demand, seek, receive, accept or agree to accept anything of value in return for being influenced in the performance of any official act.
Most of it was stipulated or proven. Virginia’s Governor McDonnell received cash and other considerations of considerable value from Williams, a constituent. The jury was satisfied that McDonnell understood that these weren’t gifts but quids, requiring certain quos:
setting up a meeting for Williams with another government officer regarding a government purpose under that officer’s official capacity (whether to allocate funds to particular university research projects beneficial to the marketing of Williams’ product)
talking to other similarly relevant officers regarding the same
organizing an event for Williams regarding the same, inviting relevant officers, with other guests chosen to help persuade them
McDonnell agreed to and did perform these actions. The only remaining dispute is whether the actions were official.
What is the ordinary business of politics? Not sales.
When is it wrong to write letters on behalf of constituents, arrange meetings, accept their phone calls, or indeed use any power, authority or formal or informal influence of the office for them? When they pay you for it. Our payment of officers’ salaries covers each and every nuance and perquisite of their offices. All public service is free because we’ve already paid for it. Providing and accepting any consideration for any part of an office is bribery and extortion.
How do we know?
Who pays for government officers’ services? We do.
Is anything excluded? Nothing.
What turns a gift into a quid? By the bribery standard, a quo. In life, the reasonable likelihood of a quo request at some time.
Do you give them gifts, as valuable and as often?
If not, are they a close relative?
A different statute bars exerting the influence of your office for family or close friends. Bribery and coercion aren’t relevant there.
Where is the quo line? Ask, would this be requested of you if you were not a government officer with the authority, power or formal or informal influence it affords?
Would it be enough that you are a nice person?
Would it be enough that you’re someone the asker knows who happens to know the target - without your office influencing how likely the target is to meet the asker?
How large does the quid have to be? What about the quo? The Court kept returning to size. After all, a permissible gift is a de minimis gift without strings. But neither quids nor quos are gifts, so neither size nor dollar value can render them permissible.
Can you only discuss possible tax credits with a CEO with your feet dangling in his trout stream? If an ordinary meeting would give you all the information you need, you’re extorting him and he’s bribing you.
Should prosecutors, or the Court, care whether some might scoff at the size of a quid? Can the scoffers know what makes that officer tick, or what makes him salivate? One person will do for a jellybean what another would only do for a throne. There is no small corruption, only ineffective corruption.
The janitor (technically an employee but also subject to corruption; at any rate, the justice asked as if they were officers) who gets the bottle of beer in order to clean your classroom first has been bribed, and has extorted you. Cleaning out a classroom may not loom large to an attorney or justice but it exercises the share of government power that officer (or employee) has to offer. The relevant question is not: How important was the quo in the larger scheme of things? but: Would you have given the beer to a bystander?
Was the phone call made to you because of the office you hold? Favoritism in taking such a call exercises official discretion. Accepting payment for such favoritism is extortion. The Court seemed unwilling to make our officers settle for being loved for themselves instead of their power, perhaps not surprisingly considering some of our officers. Anything taking an office adds and leaving it reduces belongs to the office, not to you. And the office belongs to the people.
Is attending an event, hosting a reception, or making a speech an official act? Yes, if you wouldn’t be asked to do them but for the office you hold. You may accept no return because access to you is a quo.
Is this criminalizing courtesies? No. It’s barring relabeling crimes as courtesies to decriminalize them. Appearing is a courtesy of the office, not of you personally. They may not tip you. Reasonable travel expenses to an appearance may be paid. (When appearing in another country they may give you something, but that needs congressional approval.)
Can such pretty conduct be a nasty crime? A contest for the best answer to this is underway.
What if you’re promoting a book? That’s a second career. But be cautious. Even when campaigning, you may not sell access to yourself.
How are candidates supposed to make enough money to compete then? Ask the folks who gave you CitizensUnited. It’s not the public’s problem.
When you return to private-citizen status, you may sell access to yourself all you want. While a government officer, you may not. Did you say, but it won’t be worth as much afterward? First clue.
If you are a justice, does this mean forever? Yes, sorry. Accepting the appointment means never selling yourself for the rest of your life, unless you retire or are impeached.
Are multiple small corrupt acts each chargeable offenses? Why wouldn’t they be?
Is accessing a government officer for someone an official act? Yes. It uses your office’s influence. No decision by the target need be influenced because the relevant government decision is to provide access, the relevant exercise of government power is to provide access and the ineligible seller is the government officer who makes that decision and exercises that power.
Is a referral to a member of your staff a referral? Only if the staff member has relevant power outside of your office or is at least as powerful as you within it. Your staff form a part of your office. But they are government officers under you.
Is scheduling appointments with you government conduct? Yes - the conduct of your office and theirs. They are exercising their and your official discretion.
An official act, per Justice Breyer, is “the exercise of governmental power to require citizens to do or not to do something, or to shape the law that governs their conduct.” When the exercise of any nuance or perquisite of a governor’s office influences whether a target meets with an asker, that standard is met even if the target so required feels flattered or considers it an ordinary practice.
Must being “require[d] to do something” feel forcible? No. Coercion under color of official right is different from coercion by force, violence or fear.
Does coercion under color of official right mean pressuring, urging, persuading, or cajoling? No. Even encouraging, in this context, is coercion by force, violence or fear.
Does gratitude excuse favoritism? No. Gratitude is an emotion, not a contract. To suggest that our officers couldn’t bear to accept assistance without agreeing to break the law for the person who assisted them suggests our officers are flimsy.
May one officer mention to another that a given request comes from a major campaign contributor? No. That exploits fraternal feeling to extend the range of a bribe to a third party, adding a veiled threat (“you may be shunned as unfraternal if you refuse”). It’s coercion by force, violence or fear.
Why such a tough name? Because we give our officers power.
Former White House counsels to our last few presidents signed this statement: “If this decision is upheld, it will cripple the ability of elected officials to fulfill their role in our representative democracy.” Discuss.
They may feel crippled, but what they are is hobbled. Hobbling our officers to our ethical standards is the law’s job. We can’t watch them every moment. These cases are the oversight and clarification opportunities we are given. Because there’s only one government for askers to deal with, officers set the ethical standard. The Court can lock in our standard and that is no bad thing.
What are some other advantages of upholding the decision?
It may dissuade candidates who have no real interest in the job of governing, just the power attached.
Holding the line makes compliance easier.
It makes jurisprudence easier.
Asking for a lesser standard asks the Court to create vagueness where the law is not vague. Um, wait.
Does the Constitution give prosecutors power over government officers? It gives the law power over governmental conduct. Personifying the law paints lurid mental pictures of misunderstandings, betrayals, vindictiveness, and so on. But those can go both ways among fellow government officers. It balances out to irrelevance.
The people who benefit most from a relaxation of a legal standard are criminals.
Policing is the executive branch’s responsibility. Congress can only remove an offender from office and declare him ineligible. They have no authority to prosecute crimes. Disparaging the Constitution’s delegation of authority in this implies that officers are above the law.
How does the public feel about prosecution? The public would rather see all corrupt acts addressed. We don’t consider corruption minor. Officers’ power comes from us and we have a right to have its abuse addressed.
If the Court applies a consistent standard our officers, knowing what’s expected of them, won’t claim prosecutions are overzealous.
Flexibility in law stretches over a point of public disagreement or allows mercy where justice may call for it. Neither applies to government officers who extort or accept bribes. Artificially flexible standards are impossible to maintain.
Who pays for federal officers’ services?
We do.
The Senators and Representatives shall receive a Compensation for their Services, (art I §6)
The President shall, at stated Times, receive for his Services, a Compensation, (art II §1)
The Judges…shall, at stated Times, receive for their Services a Compensation, (art III §1)
The Constitution isn’t written in the third person. It begins We, the people…, addressed by us to the world at large. By expressing that these officers will be compensated while specifying no other payment arrangement we, the people, express our intent to pay. By setting the terms of their employment we mandate that they are not to seek compensation elsewhere. Extortion by a senator, representative, president, or federal judge or justice violates the Compensation clauses.
Who pays for state officers’ services?
Level 1 - We always have. It’s unquestioned policy in every state.
But the Compensation clauses effectively limit the conduct of any office in the United States.
How do we know?
Constitutional doctrine is found where something expressed shows a general underlying principle detailing one of the broad purposes listed in the Preamble. Expressing that we, the people, will pay our federal officers details that we, the people, ordain and establish this government because it assures that those officers will work only for us, the people. It also details the Justice clause. Neither is limited to the federal government.
Can the Constitution tell states how to pay their officers? It just tells them how they won’t. Compensation by the people is not a state requirement. The text names the federal offices, not state offices. If a state can find a different method without harm to justice or government by the people they have the right to. But doctrine says the purposes of justice and government by the people will render the attempt meaningless. The courts may hold nothing above those purposes.
Does the Constitution override state constitutions? Article VI expresses it. When it bars slavery or gives women the vote, state constitutions must be brought into compliance. The Constitution governs every state above its individual state constitution.
Who pays for state officers’ services?
Level 2 - We do, because it’s our doctrine.
Do we need the Court to create a new legal standard for bribery or extortion under color of official right? No. We already have a legal standard. It doesn’t say “except for little compensations like lunches, or little services like the use of the informal influence attaching to the office.” The Constitution says service will be compensated. All service. It’s a solid line drawn at the beginning because we deserve no less, and perhaps because the only place where this line can be solidly drawn is at the beginning.
Why haven’t these protections proved strong enough? Why do you think? Corruption won’t just go away by itself.
The most far-reaching decision of the 2016 term was this one. By drastically altering the definition of government action, the Court has given corruption unprecedented license.
18 USC §201 (a)(3) defines an official act as:
any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public officer, in such officer’s official capacity, or in such officer’s place of trust or profit.
The decision relies on the condition in such officer’s official capacity instead of in such officer’s place of trust or profit. This will be significant.
The statute states that the officer’s action must have an object. What kind of object? The Court held that the Government’s definition, which included pursuing broad policy objectives such as “general economic development,” was too broad. The Court claims it instead only requires action to be “focused and concrete.” We agree that the Government’s definition is too broad but the Court’s narrows in application, adding other factors along the way (particularly the kinds we discredit in the above). More to the point might be “a purposeful act concerning government matters in a relevant context or with relevant officers.”
But McDonnell has a theory, and the Court inexplicably agrees. The theory arbitrarily divides acts by a government officer into categories of “official” and “unofficial,” creating a new category of government work unknown in the law until today. Then of course it places actions like setting up a meeting, talking to another officer, or organizing an event under this new category: “typical,” “informal,” “unofficial” conduct, daily duties that an officer “customarily performs,” but somehow not “specific duties of his office.”
It’s amazing that the Court accepts this to excuse serious crimes. They can’t be confusing a bribery standard with a standard for delegating tasks (important subjects vs mere details). But not only does the decision accept it, it phrases actions inaccurately to squeeze them into it. It errs by describing actions only in vague terms like “talking to another officer,” omitting the fact that this “talking” addressed government matters in the official capacity of those officers and was purposeful, an attempt to persuade them. Then it repeatedly and somewhat disparagingly uses the term “typical” to describe actions. How is a typical action less important or official than an atypical action?
By saying “any decision or action on X,” X being a question, matter, cause, suit, proceeding or controversy that might require a government decision or action, the statute can at first appear to suggest a covered action must be something of some weight until the reader notes that:
The statute doesn’t say “an action resolving X.”
Nor does it say “an action that could potentially resolve X.”
It says, which may be brought before any officer. The particular officer committing the action wouldn’t necessarily have any authority to resolve X. That officer’s action could be minor. Connecting the constituent with officers who could resolve X would fit the bill.
It says any decision or action, which includes both major and minor actions.
The government fails to stress this but since the statute says it plainly the Court can’t ignore it. And the objects of McDonnell’s actions did pertain to a focused and concrete act of governance that was within the target officers’ official capacity.
Discussing how to allocate public funds among fellow officers is a fairly large part of the work of a government officer. When conducted for someone else by someone outside of government it’s lobbying, but by an appropriate government officer it’s an ordinary constituent service unless there’s a quid pro quo relationship.
If making such requests, seeking compromise, and attempting persuasion aren’t official government acts much of an officer’s time is spent doing unofficial acts, including fairly involved ones at public expense.
If they’re not official acts, what are they? The decision never says, only what they suddenly aren’t.
And why are we paying for all this undefined unofficial conduct? Government officers have many official demands on their time. If making requests regarding the allocation of funds, seeking compromise, and persuasion aren’t necessary to governance and can be eliminated it would save officers’ time and the people’s money for genuine official acts.
But of course they are official acts.
First:
Not every official duty is listed in each office’s job description. Every officer’s official capacity includes coordination with officers with related bailiwicks using discussion, persuasion and compromise, even talking to another officer about his duties rather than yours. Siloing government functions would at best leave to chance whether all results would fit together to serve the public’s needs.
Since a one-person office could never cover the official functions of, for example, a state governor, official public service means the entire act, the government result the people need, which can only be accomplished by the office as a whole.
Because of this it also must mean the individual tasks that make up the entire act, both the “weighty” parts and the other parts. All component acts are official acts of your office.
Weighty acts are only about 1% of the official acts that make up any entire act. If Governor McDonnell feels minor government acts don’t live up to his definition of what a governor does, that’s just his ego talking.
And let’s hope every task the Governor performs or orders of his staff is specific and focused.
Remember the second possible condition, which may by law be brought before any public officer in such officer’s place of trust or profit, that the decision discards, instead relying solely on the first possible condition, which may by law be brought before any public officer in such officer’s official capacity?
It’s useful in this case after all. Among other things, it clarifies the definition of official conduct by referring to physical reality: the facilities, equipment and personnel authorized to fulfill your office’s official capacity.
Government facilities and equipment such as an office, computer or telephone are government property and may only be used for official purposes by those authorized to use them. The people paid for them.
What does the badge worn by staffers mean? They’ve been authorized to conduct essential components of the people’s business and may enter government facilities to do so. They are government officers.
Official doesn’t mean weighty. It means the people’s. Another word for official is authorized. An official act is any specific act or any type of act that must be done once, occasionally, or regularly for the people’s business to proceed.
It isn’t limited to specific acts. If a type of act is a typical (or even atypical) part of conducting the people’s business it’s an official act.
If an act must be weighty in itself to be an official act nothing would be done to the people’s satisfaction. Proofreading isn’t weighty, so it wouldn’t be an official act by the Court’s definition. As an unofficial act it couldn’t be mandated. But a judicial opinion that hasn’t been proofread is not only useless but dangerous.
Each phone call made, each meeting set up, each document read, each regular or occasional duty contributes to the people’s business being done and is an official act. These acts belong to the people, are paid for by the people and may not be done for a separate payment, a gift, a benefit or a promise.
The Constitution doesn’t divide government officers into officers and employees. It expresses that our government is made up of elected and appointed principal officers with inferior officers below them.
[The President] may require the Opinion, in writing, of the principal Officer in each of the executive Departments (art II §2)
[The President] will appoint officers [to a number of named positions] but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. (ibid)
Calling some inferior officers “employees” began when our bureaucracy expanded to the point where whole levels of inferior officers arose who, hiring still more officers below themselves, wanted to be distinguished from them. They’re all officers - even those employed by government to perform nongovernance work necessary to governance. Is a general’s driver in the military? Of course. Is Amtrak an officer? No, because it’s not a government hire.
The Constitution holds all officers, however inferior, responsible for constitutionality and compliance with all laws, and all Americans must be treated equally under the law.
If an act must be weighty in itself to be official we are overpaying you and your staff by 99%.
Various public needs and rights require that official acts be done only by people who have been authorized to do that government work. Let’s hope the Court isn’t angling to privatize their own offices. Do you want anyone not an authorized government officer turning on that computer?
Addition, 5/28/24:
On January 6, 2021 did a Capitol officer shoot Ms. Ashli Babbitt to death for trying to climb through a window that served no formal public purpose?
McDonnell would say yes.
McDonnell is a major change in the law. Corruption’s definition has already been narrowed over decades until only the boldest quid pro quo can easily be prosecuted. Now that’s been pruned to a twig.
If 99% of what government does is no longer governmental when can a quo exist? When two time-stamped drafts of a ruling turn 180 degrees and police find a bag of marked and fingerprinted bills that was exchanged in between them?
One section of the decision is severely and inaccurately devoted to warning us all that a Government win would chill ordinary constituent-officer relationships. This ignores the quid pro quo required to dirty such relationships. “Honest graft” (per Plunkett, of Tammany Hall) is far less common than the decision suggests. Most people are honest. No ordinary constituent would feel the slightest chill.
Why does the status of staffers matter? Prosecutors like convictions. The inadvertent development of a whipping-boy system would amuse corrupt officers tremendously.
Does Brown v US consist with Silver II? No. Is that relevant? No.
The holding in US v Schooner Peggy, 1 Cranch 103, 110 (1801): When the law changes during a case, the case is decided using the new law. This has been followed ever since.
The Court held in Brown v US that a state drug conviction remains a predicate for ACCA (the “three strikes” law) if the drug at issue was on the federal schedules at the original conviction. If the law changes after that it’s too late. From the decision:
“The reference canon provides that a statutory reference to a “general subject” incorporates “the law on that subject as it exists whenever a question under the statute arises.” Jam v International Finance Corp, 586 US 199, 209 (emphasis added).”
Wasn’t the current case when the three-strikes question arose? Yes, but caselaw makes a distinction. The Court goes on:
“But a reference “to another statute by specific title or section number” - such as ACCA’s reference to 21 USC §802 - “in effect cuts and pastes the referenced statute as it existed when the referring statute was enacted.” Ibid.”
In Silver II the Second Circuit applied caselaw that changed the way courts must define a statutory term after conviction in the case that originally gave rise to the question, but throwing out that decision made the instant case the one that gave rise to it.
Of course, Congress hadn’t changed the law at all.
Contrary to what you may have been taught, the United States is not a common-law but a civil law country.
Amendment IX reserves to the people all rights the Constitution doesn’t mention. It bars judicial or legislative denial or abridgment (“disparagement”) of any right of persons the text doesn’t expressly empower the courts or legislatures to abridge or deny. This requires governance of the people by the written Constitution and its vestitures. The text vests legislative, executive, and judicial powers but limits each to what it expressly vests (Article VI and the Reserve amendments themselves).
Amendment X reserves certain powers to the people, or to the state government if the people vest a power in it by state constitution.
X’s reservation excludes only powers the text delegates to the US level or prohibits to the state level. By expressing these exclusions it expressly includes powers the text mentions without reference to the US or states, as well as powers it prohibits only to the US. These powers are reserved to the people (or state government if that state’s people vest that power in it by state constitution).
A civil law nation governs the people by written law, relying on it to keep law regular and predictable. A common law nation governs the people by caselaw, relying on that to keep law regular and predictable. Requiring governance of the people by the written Constitution makes the USA a civil-law nation. Article VI adds federal law and treaties consistent with it and state laws consistent with them all. No text contradicts this and only once does the text check it.
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” (amdt VII)
What does this text express?
Two clauses are separated by a comma and the word “and.” One preserves the right of trial by jury in certain civil suits, the other requires appellate courts to use the rules of the common law when reviewing a jury’s finding of facts.
Since Amendment VI requires a jury in criminal cases, VII would be duplicative to do the same except 1) to qualify the requirement, 2) to expand it, or 3) to restore it after judicial or legislative acts had abridged it. The text expressly expands the scope of the right to a jury trial.
Is the second clause also conditioned by suits at common law, where the value in controversy shall exceed twenty dollars?
Can the first clause have more than one purpose? Of course. Several do. Does it limit the second clause to civil suits above a certain dollar value?
No. The words by a jury would be needless. And the second clause does express the cases to which it applies, by expressing courts of the United States. In terms of Amendment X it expressly delegates to the United States courts a ministerial (mandatory) appellate power to use the rules of the common law when reviewing a jury’s finding of facts.
Not expressed: a jury’s finding of law, or anything found by a judge. The rules of the common law are barred from these.
The primary rule of the common law is reliance on precedent. VII limits reliance on precedent to appeals of cases tried by a jury, and in these appeals it can be used only to decide questions of fact, not of law. This qualifies Amendments IX and X that require civil law.
Why? Britain is a common-law country, a monarchy with no written constitution. Jurists held the power to say what the law was. Reliance solely on precedent to keep law regular and predictable increased their power, hobbling Parliament unless the monarch stepped in. Familiar with judicial abuses and not wanting to empower a king the Framers kept the lawmaking power in the representative legislatures, under a supreme written law authored by the people.
The Constitution keeps judicial practice regular and predictable. The people are not so bound but juries are told the applicable laws. Requiring appellate courts to apply precedent to juries’ findings of fact keeps findings of fact regular and predictable too.
VII bars reliance on precedent to change a jury’s finding of law, or anything found by a judge. But this hardly exhausts the text on the topic!
The words Supreme and inferior courts express a bilevel hierarchy. Decisions by the Supreme Court set precedents governing lower federal courts.
Federal decisions binding on state courts include those on the Constitution, US laws, treaties, ambassadors, public ministers, consuls, admiralty and maritime law, controversies in which the US is a party, controversies between states or between citizens of different states, and cases in which citizens of the same state claim the same land under grants of different states.
Even where the Supreme Court has original jurisdiction Congress can overturn its decision by passing new law, but state legislatures can’t unless the Court trespasses on state legal turf.
Congress can require all states to accept any state’s ruling by passing a law. (art IV §1)
Courts have some power to review law. No court may enforce a law that violates the Constitution or a treaty or federal law that consists with it. This decision is binding.
No appellate court may uphold a finding of law that violates as above. This decision is binding.
A decision required by the text’s rules for court action is of course binding.
But no court may repeal or amend a written law that meets the above criteria, or cite such a decision as precedential.
Epilogue
As nowhere does the Constitution immunize jurists for the content of their decisions, as no such immunity may be implied because Article I §5 does expressly immunize members of Congress for the content of their speech and debate in session, as Amendments IX and X bar creating an immunity by any act of governance short of a state constitution or the US Constitution, bad behavior in the merits is as impeachable as bad behavior outside them.
Thanks, Steve - If you want to cancel my membership I understand. I had to get this out.
Was the Massachusetts “Supreme Court” in 1790 known as the “Supreme Judicial Court” as it is today ?
Yup--ever since the Constitution of 1780: https://malegislature.gov/Laws/Constitution
Very glad that you are sharing your vast knowledge of this subject. I’ve only recently tried to understand some of the machinations.
Thank you, thank you for pointing out the importance of the mischief that can be caused long term by Alito's slaying of the idea that appellate courts should pay deference to the lower court conclusions by the triers of fact. That was the first thing I noticed about that dreadful decision and I've been howling about it all over Substack. "Clear Error" clearly has turned into "whatever the appellate judge thinks should have been decided." Alito is veering real close to a full fledged "independent state legislature" concept. With this, the whole idea behind our court structure is changed, changed utterly--with no terrible beauty anywhere in the vicinity.
Thomas was beyond belief with his guff about the High Court of Chancery in 1789. Whatever the actual posture of Alexander was below, the relief was basically very like injunctive relief--and what's a court of equity's main job????
I like the idea of the IG. Even if s/he couldn't make the judges answer for their ethical violations, a full investigative report of each would certainly focus attention on the issue in a way that the media couldn't really ignore--one hopes.
Yes, one of the first things that occurred to me when hearing about the Alexander decision, as well as Thomas’s concurrence, was how the majority’s deference to the states in their districting decisions and its assumption of “good faith” in that context conflicts with its utter lack of deference to, and outright hostility toward, affirmative action programs implemented by those same states. I guess racial bias that dilutes the voting power of minorities is somehow less important than the “dangers” of race-conscious college admissions policies?
I can’t read Brown v US, (No 22-6389, on certiorari to the US Court of Appeals for the Third Circuit, argued November 27, 2023, decided May 23, 2024 together with No 22-6640, Jackson v US, on certiorari to the US Court of Appeals for the Eleventh Circuit) without thinking of Shelly Silver.
To give the late Speaker of the New York State Assembly his due, he was very good at his job. The first time I went to a meeting of my local community board a cheerful young man strolled over to greet the unknown neighbor and ask why I’d come out that evening. Was there some problem? He didn’t even ask whether I was in his boss’ district (half a block out).
But no amount of good work cancels out corruption. Someone else could have been doing a good job without abusing the public’s trust.
The people convicted Mr. Silver (864 F3d 102 [2d Cir 2017], or Silver I), cert denied, 138 SCt 738 (2018) of seven federal crimes. Three counts involved honest services fraud and extortion under color of official right. He was duly sentenced. Two months later, Congress having made no statutory change, McDonnell v United States, 136 S Ct 2355 (2016) narrowed the definition of an “official act” (136 S Ct at 2371-72). Changing “official act” six months earlier would have changed Silver I. But such is life.
The Court’s action defied roughly half the statute.
A year passed. The ex-Speaker was granted a new trial on other grounds. The new jury convicted him again (Silver II, Docket No 18-2380).
Silver appealed Silver II citing McDonnell.
The Second Circuit reviewed the district’s jury charge de novo and overturned those three charges.
“The Court held that “an ‘official act’ is a decision or action on a ‘question, matter, cause, suit, proceeding, or controversy’” that involves “a formal exercise of governmental power,” is “specific and focused,” and is either “pending” or “may by law be brought” before a public official. (Silver II, 18-2380, 2d Cir, 2018).
But the second jury had been instructed to use the same definition as the first jury, “any action to be taken under color of official authority,” (Silver I, 864 F3d at 112). The courts had been upholding that definition at the time of Silver’s first conviction.
It was and is the only definition that satisfies the statute’s full text.
This is gonna be a long one - sorry, Steve!
The Hobbs Act, 18 USC 1951b2, defines public extortion as committed “with [victim] consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” Can a finding of victim consent require a quid pro quo under either circumstance? No.
But the Court in McCormick v US, 500 US 257 (1991) not only makes law but amends 18 USC 1951b2 by adding a quid pro quo requirement. This changes extortion, a crime committed by forcing one’s will upon another, to bribery, a fully mutual crime. Since we already have a bribery statute McCormick’s only impact is cutting the Hobbs Act’s enforceability, effectively immunizing officers who may have used force or violence to get their way. McCormick v US is still cited as “good law.”
If the Court thought it had made itself clear, the US attorneys didn’t. They had the temerity to file charges under the frowned-on Act again. In a flurry of furious decisions including Evans v US, 504 US 255 (1992) and US v McDonough, 56 F3d 381, 388 (2d Cir 1995) two courts not only expressly call extortion using force, threat, fear, or color of a public right the “rough equivalent of…’taking a bribe’”(504 US 255, 260 [1992]), they amend 18 USC 1951b2 even more, in two stages.
Stage One sounds like walking back the erroneous quid pro quo requirement without overturning it. It defines the difference between public extortion and bribery as the public officer’s inducing the bribe. Prosecutors need only prove inducement, not officer intent or a meeting of minds. Of course, requiring proof that the public officer expressly induced the bribe lowers one bar by raising another.
But it’s in Stage Two that the rough beast slouches in. The Evans Court redefines “inducement” as an inherent characteristic of a public office (504 US at 266), not an action by a public officer. What a gift to prosecutors! They can prove extortion without even proving the officer induced the bribe. Except…well, how does an inherent inducement induce? At this point I can’t help picturing malevolent grins. By “motivating” the victim. Since this requires a victim not only willing but motivated absent offender action, since it can even make public extortion an offense instigated by the victim, officer conduct becomes a nonissue.
Can proving inducement by a public officer in court with reporters taking notes be charged as prosecutorial misconduct? We don’t know. Nobody’s tried. The Supreme Court and the Second Circuit shut the People down. They amended a straightforward charge, one every nation’s law must have, into something law never covered and cannot use. Extortion under color of official right now all but approximates its opposite, extortion of a public officer by a private person.
We already have a statute for that, too.
Without Congress’ changing a semicolon, judicial action amended a necessary statute out of existence. These decisions violate the separation of powers.
They display judicial misconduct at its ugly nadir.
They remain “good law.”
McDonnell adds insult to injury.
In this decision the Court follows its successful pattern and amends the bribery statute out of useful existence by denying half its enforceability. Silver II will add its own touch, using the judge-made amendment beyond the time when a change to a statute can affect a case. But let’s talk McDonnell. This organization disseminated and published two commentaries on it, a satire after oral argument and a serious rebuttal after the decision.
to be Continued
How It Works, When It Works
a Socratic dialogue RepairRestoreSafeguard published after oral argument for McDonnell v US, S Ct 15-474, argued April 27, 2016. You can probably follow along, but the transcript is at oyez.org/cases/2015/15-474.
Note:
The standard in this case is 18 USC §201(a)(3) that makes it a crime for a public officer to directly or indirectly demand, seek, receive, accept or agree to accept anything of value in return for being influenced in the performance of any official act.
Most of it was stipulated or proven. Virginia’s Governor McDonnell received cash and other considerations of considerable value from Williams, a constituent. The jury was satisfied that McDonnell understood that these weren’t gifts but quids, requiring certain quos:
setting up a meeting for Williams with another government officer regarding a government purpose under that officer’s official capacity (whether to allocate funds to particular university research projects beneficial to the marketing of Williams’ product)
talking to other similarly relevant officers regarding the same
organizing an event for Williams regarding the same, inviting relevant officers, with other guests chosen to help persuade them
McDonnell agreed to and did perform these actions. The only remaining dispute is whether the actions were official.
What is the ordinary business of politics? Not sales.
When is it wrong to write letters on behalf of constituents, arrange meetings, accept their phone calls, or indeed use any power, authority or formal or informal influence of the office for them? When they pay you for it. Our payment of officers’ salaries covers each and every nuance and perquisite of their offices. All public service is free because we’ve already paid for it. Providing and accepting any consideration for any part of an office is bribery and extortion.
How do we know?
Who pays for government officers’ services? We do.
Is anything excluded? Nothing.
What turns a gift into a quid? By the bribery standard, a quo. In life, the reasonable likelihood of a quo request at some time.
Do you give them gifts, as valuable and as often?
If not, are they a close relative?
A different statute bars exerting the influence of your office for family or close friends. Bribery and coercion aren’t relevant there.
Where is the quo line? Ask, would this be requested of you if you were not a government officer with the authority, power or formal or informal influence it affords?
Would it be enough that you are a nice person?
Would it be enough that you’re someone the asker knows who happens to know the target - without your office influencing how likely the target is to meet the asker?
How large does the quid have to be? What about the quo? The Court kept returning to size. After all, a permissible gift is a de minimis gift without strings. But neither quids nor quos are gifts, so neither size nor dollar value can render them permissible.
Can you only discuss possible tax credits with a CEO with your feet dangling in his trout stream? If an ordinary meeting would give you all the information you need, you’re extorting him and he’s bribing you.
Should prosecutors, or the Court, care whether some might scoff at the size of a quid? Can the scoffers know what makes that officer tick, or what makes him salivate? One person will do for a jellybean what another would only do for a throne. There is no small corruption, only ineffective corruption.
The janitor (technically an employee but also subject to corruption; at any rate, the justice asked as if they were officers) who gets the bottle of beer in order to clean your classroom first has been bribed, and has extorted you. Cleaning out a classroom may not loom large to an attorney or justice but it exercises the share of government power that officer (or employee) has to offer. The relevant question is not: How important was the quo in the larger scheme of things? but: Would you have given the beer to a bystander?
Was the phone call made to you because of the office you hold? Favoritism in taking such a call exercises official discretion. Accepting payment for such favoritism is extortion. The Court seemed unwilling to make our officers settle for being loved for themselves instead of their power, perhaps not surprisingly considering some of our officers. Anything taking an office adds and leaving it reduces belongs to the office, not to you. And the office belongs to the people.
Is attending an event, hosting a reception, or making a speech an official act? Yes, if you wouldn’t be asked to do them but for the office you hold. You may accept no return because access to you is a quo.
Is this criminalizing courtesies? No. It’s barring relabeling crimes as courtesies to decriminalize them. Appearing is a courtesy of the office, not of you personally. They may not tip you. Reasonable travel expenses to an appearance may be paid. (When appearing in another country they may give you something, but that needs congressional approval.)
Can such pretty conduct be a nasty crime? A contest for the best answer to this is underway.
What if you’re promoting a book? That’s a second career. But be cautious. Even when campaigning, you may not sell access to yourself.
How are candidates supposed to make enough money to compete then? Ask the folks who gave you CitizensUnited. It’s not the public’s problem.
When you return to private-citizen status, you may sell access to yourself all you want. While a government officer, you may not. Did you say, but it won’t be worth as much afterward? First clue.
If you are a justice, does this mean forever? Yes, sorry. Accepting the appointment means never selling yourself for the rest of your life, unless you retire or are impeached.
Are multiple small corrupt acts each chargeable offenses? Why wouldn’t they be?
Is accessing a government officer for someone an official act? Yes. It uses your office’s influence. No decision by the target need be influenced because the relevant government decision is to provide access, the relevant exercise of government power is to provide access and the ineligible seller is the government officer who makes that decision and exercises that power.
Is a referral to a member of your staff a referral? Only if the staff member has relevant power outside of your office or is at least as powerful as you within it. Your staff form a part of your office. But they are government officers under you.
Is scheduling appointments with you government conduct? Yes - the conduct of your office and theirs. They are exercising their and your official discretion.
An official act, per Justice Breyer, is “the exercise of governmental power to require citizens to do or not to do something, or to shape the law that governs their conduct.” When the exercise of any nuance or perquisite of a governor’s office influences whether a target meets with an asker, that standard is met even if the target so required feels flattered or considers it an ordinary practice.
Must being “require[d] to do something” feel forcible? No. Coercion under color of official right is different from coercion by force, violence or fear.
Does coercion under color of official right mean pressuring, urging, persuading, or cajoling? No. Even encouraging, in this context, is coercion by force, violence or fear.
Does gratitude excuse favoritism? No. Gratitude is an emotion, not a contract. To suggest that our officers couldn’t bear to accept assistance without agreeing to break the law for the person who assisted them suggests our officers are flimsy.
May one officer mention to another that a given request comes from a major campaign contributor? No. That exploits fraternal feeling to extend the range of a bribe to a third party, adding a veiled threat (“you may be shunned as unfraternal if you refuse”). It’s coercion by force, violence or fear.
Why such a tough name? Because we give our officers power.
To be continued
Drama queen amici bonus point!
Former White House counsels to our last few presidents signed this statement: “If this decision is upheld, it will cripple the ability of elected officials to fulfill their role in our representative democracy.” Discuss.
They may feel crippled, but what they are is hobbled. Hobbling our officers to our ethical standards is the law’s job. We can’t watch them every moment. These cases are the oversight and clarification opportunities we are given. Because there’s only one government for askers to deal with, officers set the ethical standard. The Court can lock in our standard and that is no bad thing.
What are some other advantages of upholding the decision?
It may dissuade candidates who have no real interest in the job of governing, just the power attached.
Holding the line makes compliance easier.
It makes jurisprudence easier.
Asking for a lesser standard asks the Court to create vagueness where the law is not vague. Um, wait.
Does the Constitution give prosecutors power over government officers? It gives the law power over governmental conduct. Personifying the law paints lurid mental pictures of misunderstandings, betrayals, vindictiveness, and so on. But those can go both ways among fellow government officers. It balances out to irrelevance.
The people who benefit most from a relaxation of a legal standard are criminals.
Policing is the executive branch’s responsibility. Congress can only remove an offender from office and declare him ineligible. They have no authority to prosecute crimes. Disparaging the Constitution’s delegation of authority in this implies that officers are above the law.
How does the public feel about prosecution? The public would rather see all corrupt acts addressed. We don’t consider corruption minor. Officers’ power comes from us and we have a right to have its abuse addressed.
If the Court applies a consistent standard our officers, knowing what’s expected of them, won’t claim prosecutions are overzealous.
Flexibility in law stretches over a point of public disagreement or allows mercy where justice may call for it. Neither applies to government officers who extort or accept bribes. Artificially flexible standards are impossible to maintain.
Who pays for federal officers’ services?
We do.
The Senators and Representatives shall receive a Compensation for their Services, (art I §6)
The President shall, at stated Times, receive for his Services, a Compensation, (art II §1)
The Judges…shall, at stated Times, receive for their Services a Compensation, (art III §1)
The Constitution isn’t written in the third person. It begins We, the people…, addressed by us to the world at large. By expressing that these officers will be compensated while specifying no other payment arrangement we, the people, express our intent to pay. By setting the terms of their employment we mandate that they are not to seek compensation elsewhere. Extortion by a senator, representative, president, or federal judge or justice violates the Compensation clauses.
Who pays for state officers’ services?
Level 1 - We always have. It’s unquestioned policy in every state.
But the Compensation clauses effectively limit the conduct of any office in the United States.
How do we know?
Constitutional doctrine is found where something expressed shows a general underlying principle detailing one of the broad purposes listed in the Preamble. Expressing that we, the people, will pay our federal officers details that we, the people, ordain and establish this government because it assures that those officers will work only for us, the people. It also details the Justice clause. Neither is limited to the federal government.
Can the Constitution tell states how to pay their officers? It just tells them how they won’t. Compensation by the people is not a state requirement. The text names the federal offices, not state offices. If a state can find a different method without harm to justice or government by the people they have the right to. But doctrine says the purposes of justice and government by the people will render the attempt meaningless. The courts may hold nothing above those purposes.
Does the Constitution override state constitutions? Article VI expresses it. When it bars slavery or gives women the vote, state constitutions must be brought into compliance. The Constitution governs every state above its individual state constitution.
Who pays for state officers’ services?
Level 2 - We do, because it’s our doctrine.
Do we need the Court to create a new legal standard for bribery or extortion under color of official right? No. We already have a legal standard. It doesn’t say “except for little compensations like lunches, or little services like the use of the informal influence attaching to the office.” The Constitution says service will be compensated. All service. It’s a solid line drawn at the beginning because we deserve no less, and perhaps because the only place where this line can be solidly drawn is at the beginning.
Why haven’t these protections proved strong enough? Why do you think? Corruption won’t just go away by itself.
To be Continued
...And When It Doesn’t
The McDonnell Decision Analyzed
The most far-reaching decision of the 2016 term was this one. By drastically altering the definition of government action, the Court has given corruption unprecedented license.
18 USC §201 (a)(3) defines an official act as:
any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public officer, in such officer’s official capacity, or in such officer’s place of trust or profit.
The decision relies on the condition in such officer’s official capacity instead of in such officer’s place of trust or profit. This will be significant.
The statute states that the officer’s action must have an object. What kind of object? The Court held that the Government’s definition, which included pursuing broad policy objectives such as “general economic development,” was too broad. The Court claims it instead only requires action to be “focused and concrete.” We agree that the Government’s definition is too broad but the Court’s narrows in application, adding other factors along the way (particularly the kinds we discredit in the above). More to the point might be “a purposeful act concerning government matters in a relevant context or with relevant officers.”
But McDonnell has a theory, and the Court inexplicably agrees. The theory arbitrarily divides acts by a government officer into categories of “official” and “unofficial,” creating a new category of government work unknown in the law until today. Then of course it places actions like setting up a meeting, talking to another officer, or organizing an event under this new category: “typical,” “informal,” “unofficial” conduct, daily duties that an officer “customarily performs,” but somehow not “specific duties of his office.”
It’s amazing that the Court accepts this to excuse serious crimes. They can’t be confusing a bribery standard with a standard for delegating tasks (important subjects vs mere details). But not only does the decision accept it, it phrases actions inaccurately to squeeze them into it. It errs by describing actions only in vague terms like “talking to another officer,” omitting the fact that this “talking” addressed government matters in the official capacity of those officers and was purposeful, an attempt to persuade them. Then it repeatedly and somewhat disparagingly uses the term “typical” to describe actions. How is a typical action less important or official than an atypical action?
By saying “any decision or action on X,” X being a question, matter, cause, suit, proceeding or controversy that might require a government decision or action, the statute can at first appear to suggest a covered action must be something of some weight until the reader notes that:
The statute doesn’t say “an action resolving X.”
Nor does it say “an action that could potentially resolve X.”
It says, which may be brought before any officer. The particular officer committing the action wouldn’t necessarily have any authority to resolve X. That officer’s action could be minor. Connecting the constituent with officers who could resolve X would fit the bill.
It says any decision or action, which includes both major and minor actions.
The government fails to stress this but since the statute says it plainly the Court can’t ignore it. And the objects of McDonnell’s actions did pertain to a focused and concrete act of governance that was within the target officers’ official capacity.
Discussing how to allocate public funds among fellow officers is a fairly large part of the work of a government officer. When conducted for someone else by someone outside of government it’s lobbying, but by an appropriate government officer it’s an ordinary constituent service unless there’s a quid pro quo relationship.
If making such requests, seeking compromise, and attempting persuasion aren’t official government acts much of an officer’s time is spent doing unofficial acts, including fairly involved ones at public expense.
If they’re not official acts, what are they? The decision never says, only what they suddenly aren’t.
And why are we paying for all this undefined unofficial conduct? Government officers have many official demands on their time. If making requests regarding the allocation of funds, seeking compromise, and persuasion aren’t necessary to governance and can be eliminated it would save officers’ time and the people’s money for genuine official acts.
But of course they are official acts.
First:
Not every official duty is listed in each office’s job description. Every officer’s official capacity includes coordination with officers with related bailiwicks using discussion, persuasion and compromise, even talking to another officer about his duties rather than yours. Siloing government functions would at best leave to chance whether all results would fit together to serve the public’s needs.
to be continued
Second:
Since a one-person office could never cover the official functions of, for example, a state governor, official public service means the entire act, the government result the people need, which can only be accomplished by the office as a whole.
Because of this it also must mean the individual tasks that make up the entire act, both the “weighty” parts and the other parts. All component acts are official acts of your office.
Weighty acts are only about 1% of the official acts that make up any entire act. If Governor McDonnell feels minor government acts don’t live up to his definition of what a governor does, that’s just his ego talking.
And let’s hope every task the Governor performs or orders of his staff is specific and focused.
Remember the second possible condition, which may by law be brought before any public officer in such officer’s place of trust or profit, that the decision discards, instead relying solely on the first possible condition, which may by law be brought before any public officer in such officer’s official capacity?
It’s useful in this case after all. Among other things, it clarifies the definition of official conduct by referring to physical reality: the facilities, equipment and personnel authorized to fulfill your office’s official capacity.
Government facilities and equipment such as an office, computer or telephone are government property and may only be used for official purposes by those authorized to use them. The people paid for them.
What does the badge worn by staffers mean? They’ve been authorized to conduct essential components of the people’s business and may enter government facilities to do so. They are government officers.
Official doesn’t mean weighty. It means the people’s. Another word for official is authorized. An official act is any specific act or any type of act that must be done once, occasionally, or regularly for the people’s business to proceed.
It isn’t limited to specific acts. If a type of act is a typical (or even atypical) part of conducting the people’s business it’s an official act.
If an act must be weighty in itself to be an official act nothing would be done to the people’s satisfaction. Proofreading isn’t weighty, so it wouldn’t be an official act by the Court’s definition. As an unofficial act it couldn’t be mandated. But a judicial opinion that hasn’t been proofread is not only useless but dangerous.
Each phone call made, each meeting set up, each document read, each regular or occasional duty contributes to the people’s business being done and is an official act. These acts belong to the people, are paid for by the people and may not be done for a separate payment, a gift, a benefit or a promise.
The Constitution doesn’t divide government officers into officers and employees. It expresses that our government is made up of elected and appointed principal officers with inferior officers below them.
[The President] may require the Opinion, in writing, of the principal Officer in each of the executive Departments (art II §2)
[The President] will appoint officers [to a number of named positions] but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. (ibid)
Calling some inferior officers “employees” began when our bureaucracy expanded to the point where whole levels of inferior officers arose who, hiring still more officers below themselves, wanted to be distinguished from them. They’re all officers - even those employed by government to perform nongovernance work necessary to governance. Is a general’s driver in the military? Of course. Is Amtrak an officer? No, because it’s not a government hire.
The Constitution holds all officers, however inferior, responsible for constitutionality and compliance with all laws, and all Americans must be treated equally under the law.
If an act must be weighty in itself to be official we are overpaying you and your staff by 99%.
Various public needs and rights require that official acts be done only by people who have been authorized to do that government work. Let’s hope the Court isn’t angling to privatize their own offices. Do you want anyone not an authorized government officer turning on that computer?
Addition, 5/28/24:
On January 6, 2021 did a Capitol officer shoot Ms. Ashli Babbitt to death for trying to climb through a window that served no formal public purpose?
McDonnell would say yes.
McDonnell is a major change in the law. Corruption’s definition has already been narrowed over decades until only the boldest quid pro quo can easily be prosecuted. Now that’s been pruned to a twig.
If 99% of what government does is no longer governmental when can a quo exist? When two time-stamped drafts of a ruling turn 180 degrees and police find a bag of marked and fingerprinted bills that was exchanged in between them?
One section of the decision is severely and inaccurately devoted to warning us all that a Government win would chill ordinary constituent-officer relationships. This ignores the quid pro quo required to dirty such relationships. “Honest graft” (per Plunkett, of Tammany Hall) is far less common than the decision suggests. Most people are honest. No ordinary constituent would feel the slightest chill.
Why does the status of staffers matter? Prosecutors like convictions. The inadvertent development of a whipping-boy system would amuse corrupt officers tremendously.
to be continued (almost done, Steve!)
After all this, Silver II was child’s play.
Does Brown v US consist with Silver II? No. Is that relevant? No.
The holding in US v Schooner Peggy, 1 Cranch 103, 110 (1801): When the law changes during a case, the case is decided using the new law. This has been followed ever since.
The Court held in Brown v US that a state drug conviction remains a predicate for ACCA (the “three strikes” law) if the drug at issue was on the federal schedules at the original conviction. If the law changes after that it’s too late. From the decision:
“The reference canon provides that a statutory reference to a “general subject” incorporates “the law on that subject as it exists whenever a question under the statute arises.” Jam v International Finance Corp, 586 US 199, 209 (emphasis added).”
Wasn’t the current case when the three-strikes question arose? Yes, but caselaw makes a distinction. The Court goes on:
“But a reference “to another statute by specific title or section number” - such as ACCA’s reference to 21 USC §802 - “in effect cuts and pastes the referenced statute as it existed when the referring statute was enacted.” Ibid.”
In Silver II the Second Circuit applied caselaw that changed the way courts must define a statutory term after conviction in the case that originally gave rise to the question, but throwing out that decision made the instant case the one that gave rise to it.
Of course, Congress hadn’t changed the law at all.
Contrary to what you may have been taught, the United States is not a common-law but a civil law country.
Amendment IX reserves to the people all rights the Constitution doesn’t mention. It bars judicial or legislative denial or abridgment (“disparagement”) of any right of persons the text doesn’t expressly empower the courts or legislatures to abridge or deny. This requires governance of the people by the written Constitution and its vestitures. The text vests legislative, executive, and judicial powers but limits each to what it expressly vests (Article VI and the Reserve amendments themselves).
Amendment X reserves certain powers to the people, or to the state government if the people vest a power in it by state constitution.
X’s reservation excludes only powers the text delegates to the US level or prohibits to the state level. By expressing these exclusions it expressly includes powers the text mentions without reference to the US or states, as well as powers it prohibits only to the US. These powers are reserved to the people (or state government if that state’s people vest that power in it by state constitution).
A civil law nation governs the people by written law, relying on it to keep law regular and predictable. A common law nation governs the people by caselaw, relying on that to keep law regular and predictable. Requiring governance of the people by the written Constitution makes the USA a civil-law nation. Article VI adds federal law and treaties consistent with it and state laws consistent with them all. No text contradicts this and only once does the text check it.
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” (amdt VII)
What does this text express?
Two clauses are separated by a comma and the word “and.” One preserves the right of trial by jury in certain civil suits, the other requires appellate courts to use the rules of the common law when reviewing a jury’s finding of facts.
Since Amendment VI requires a jury in criminal cases, VII would be duplicative to do the same except 1) to qualify the requirement, 2) to expand it, or 3) to restore it after judicial or legislative acts had abridged it. The text expressly expands the scope of the right to a jury trial.
Is the second clause also conditioned by suits at common law, where the value in controversy shall exceed twenty dollars?
Can the first clause have more than one purpose? Of course. Several do. Does it limit the second clause to civil suits above a certain dollar value?
No. The words by a jury would be needless. And the second clause does express the cases to which it applies, by expressing courts of the United States. In terms of Amendment X it expressly delegates to the United States courts a ministerial (mandatory) appellate power to use the rules of the common law when reviewing a jury’s finding of facts.
Not expressed: a jury’s finding of law, or anything found by a judge. The rules of the common law are barred from these.
The primary rule of the common law is reliance on precedent. VII limits reliance on precedent to appeals of cases tried by a jury, and in these appeals it can be used only to decide questions of fact, not of law. This qualifies Amendments IX and X that require civil law.
Why? Britain is a common-law country, a monarchy with no written constitution. Jurists held the power to say what the law was. Reliance solely on precedent to keep law regular and predictable increased their power, hobbling Parliament unless the monarch stepped in. Familiar with judicial abuses and not wanting to empower a king the Framers kept the lawmaking power in the representative legislatures, under a supreme written law authored by the people.
The Constitution keeps judicial practice regular and predictable. The people are not so bound but juries are told the applicable laws. Requiring appellate courts to apply precedent to juries’ findings of fact keeps findings of fact regular and predictable too.
VII bars reliance on precedent to change a jury’s finding of law, or anything found by a judge. But this hardly exhausts the text on the topic!
The words Supreme and inferior courts express a bilevel hierarchy. Decisions by the Supreme Court set precedents governing lower federal courts.
Federal decisions binding on state courts include those on the Constitution, US laws, treaties, ambassadors, public ministers, consuls, admiralty and maritime law, controversies in which the US is a party, controversies between states or between citizens of different states, and cases in which citizens of the same state claim the same land under grants of different states.
Even where the Supreme Court has original jurisdiction Congress can overturn its decision by passing new law, but state legislatures can’t unless the Court trespasses on state legal turf.
Congress can require all states to accept any state’s ruling by passing a law. (art IV §1)
Courts have some power to review law. No court may enforce a law that violates the Constitution or a treaty or federal law that consists with it. This decision is binding.
No appellate court may uphold a finding of law that violates as above. This decision is binding.
A decision required by the text’s rules for court action is of course binding.
But no court may repeal or amend a written law that meets the above criteria, or cite such a decision as precedential.
Epilogue
As nowhere does the Constitution immunize jurists for the content of their decisions, as no such immunity may be implied because Article I §5 does expressly immunize members of Congress for the content of their speech and debate in session, as Amendments IX and X bar creating an immunity by any act of governance short of a state constitution or the US Constitution, bad behavior in the merits is as impeachable as bad behavior outside them.
Thanks, Steve - If you want to cancel my membership I understand. I had to get this out.