By William J. Olson & Patrick M. McSweeney of The Western Journal
December 24, 2020

Overcoming the Supreme Court’s Abdication in Texas v. Pennsylvania

In refusing to hear Texas v. Pennsylvania, the U.S. Supreme Court abdicated its constitutional duty to resolve a real and substantial controversy among states that was properly brought as an original action in that Court. As a result, the Court has come under intense criticism for having evaded the most important inter-state constitutional case brought to it in many decades, if not ever.

However, even in its Order dismissing the case, the Supreme Court identified how another challenge could be brought successfully — by a different plaintiff. This paper explains that legal strategy. But first we focus on the errors made by the Supreme Court — in the hopes that they will not be made again.

Texas v. Pennsylvania

The Supreme Court declined to hear the challenge brought by the State of Texas against four states which had refused to abide by Article II, § 1, cl. 2 — the Presidential Electors Clause, which establishes the conditions and requirements governing the election of the President of the United States. In adopting that provision, the Framers vested in each State legislature the exclusive authority to determine the manner of appointing Presidential electors. The Framers’ plan was shown to be exceedingly wise, because we have now learned that allowing other state and private actors to write the election rules led to massive election fraud in the four defendant states. Individuals can be bought, paid for and corrupted so much easier than state legislatures.

In refusing to hear the case, the sole reason given was that Texas lacked “standing.” In doing so, all nine justices committed a wrong against: (i) Texas and the 17 states that supported its suit; (ii) the United States; (iii) the President; and (iv) the People.

The Court’s Many Wrongs in Texas v. Pennsylvania

As Alexander Hamilton explained in Federalist No. 78, courts have “neither FORCE nor WILL, but merely judgment.” As such, in deciding cases courts have a duty to explain their decisions so the rest of us may know if they constitute arbitrary exercises of political power, or reasoned decisions of judicial power which the People can trust. In Texas v. Pennsylvania, all that the justices felt obligated to do was to state its — “lack of standing” — supported by a one sentence justification: “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its election.” Resolving a case of this magnitude with one conclusory sentence is completely unacceptable.

The Supreme Court docket consists primarily of only those cases the High Court chooses to hear. However, just like when it agrees to decide a case, and in disputes where the original jurisdiction of the Court is invoked, it has a duty to decide cases properly brought to them. Two centuries ago, Chief Justice John Marshall construed the obligation of contracts clause in a decision where he wrote: “however irksome the task may be, this is a duty from which we dare not shrink.” Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819). Courts have a duty to resolve important cases even if they would prefer to avoid them. In Marbury v. Madison, 5 U.S. 137 (1803), Marshall described “the duty of the Judicial Department to say what the law is” because “every right, when withheld, must have a remedy, and every injury its proper redress.” Abdication in a case of this sort is not a judicial option.

The Supreme Court’s reliance on standing as its excuse has had one positive result — provoking many to study the origins of that doctrine who may be surprised to learn that the word “standing” nowhere appears in the Constitution. There is compelling evidence to demonstrate it was birthed by big-government Justices during the FDR Administration to shield New Deal legislation, and to insulate the Administrative State from challenges by the People. Those who favored the Texas decision argue that standing is a conservative doctrine as it limits the power of the courts — but the true constitutionalist uses only tests grounded in its text. The true threshold constitutional test is whether a genuine and serious “controversy” exists between the States that could be resolved by a court.

The only reason given by the Supreme Court was: “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its election.” In truth, Texas did make such a showing. When Pennsylvania violated the exclusive authority bestowed on state legislators in the Constitution’s Electors Clause, it opened the door to corruption and foreign intrigue to corrupt the electoral votes of Pennsylvania, and as Alexander Hamilton explained in Federalist 68, that is exactly why the Framers created the Electoral College. During the 2020 election cycle, changes to the election process in Pennsylvania were made by judges, state office holders and election officials which would never have been made by its state legislature.

If the process by which Presidential Electors are chosen is corrupted in a few key states, like Pennsylvania, Georgia, Michigan and Wisconsin by rigging the system in favor of one candidate, it becomes wholly irrelevant who the People of Texas support. That political reality presents a real “judicially cognizable interest” no matter what the Supreme Court decided. What happens in Pennsylvania does not stay in Pennsylvania, as electors from all States acting together select the President of the United States.

Read the rest of this important article in The Western Journal at the link below . . .