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Marty Lederman Profile picture
@marty_lederman
Jul 23, 2019 • 3 tweets • 2 min read • Read on X
1/ Once again, the SG in his reply brief in the "Wall" case relies upon a fundamental error: He argues that plaintiffs' claims "necessarily rest on an alleged violation of Section 8005," which isn't designed to protect the plaintiffs' interests.

supremecourt.gov/DocketPDF/19/1…
2/ But Section 8005 can't be "violated": It's an *authorization* statute that DOD itself has (unpersuasively) invoked as a *defense* to plaintiffs' "ultra vires" claim that there's no authority for the funding transfer. Hence the "zone of interests" test is inapposite.
3/ @ACLU @SierraClub @steve_vladeck #appellatetwitter @just_security @SCOTUSblog @adamliptak

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More from @marty_lederman

Marty Lederman Profile picture
Nov 23, 2022
I can't overstate what an achievement this is--and, much more importantly, a great read, overflowing with revelations, deep insights (and warnings) about Chuck, about rock & roll, about St. Louis, and about America, then and now. (1)
"Chuck outlived Elvis, Johnnie Johnson, Johnny Winter, and Johnny Ramone. He outlived rock & roll. In 2022 he seems less like a rocker and and more than ever simply a representative American artist. He had a vision of a country that did not exist, and he willed it into life." (2)
"... A place where anybody might want to live. His reward was a day pass and a warning that it was best he not hang around after sundown." (3)
Read 4 tweets
Marty Lederman Profile picture
Nov 23, 2022
I can't overstate what an achievement this is--and, much more importantly, a great read, overflowing with revelations, deep insights (and warnings) about Chuck, about rock & roll, about St. Louis, and about America, then and now. (1)
"Chuck outlived Elvis, Johnnie Johnson, Johnny Winter, and Johnny Ramone. He outlived rock & roll. In 2022 he seems less like a rocker and and more than ever simply a representative American artist. He had a vision of a country that did not exist, and he willed it into life." (2)
"... A place where anybody might want to live. His reward was a day pass and a warning that it was best he not hang around after sundown." (3)
Read 4 tweets
Marty Lederman Profile picture
Sep 6, 2021
@JaneMayerNYer @samuelmoyn can correct me if I'm mistaken, but his critique appears to be predicated on three assumptions that (IMHO) aren't warranted:
1. That the US conflicts with AQ, et al., have violated the Charter/the jus ad bellum;

@DavidColeACLU
@JaneMayerNYer @samuelmoyn @DavidColeACLU (2) that there is a large anitwar consensus lurking out there that would have insisted upon this illegality and worked to end those conflicts, if only ...
(3) Obama, HRW, etc., had not worked so hard to humanize the conflicts by protecting prisoners and civilians, ...
@JaneMayerNYer @samuelmoyn @DavidColeACLU ... which had the effect (not necessarily the intent) of bamboozling the antiwar consensus into neglecting the fact that the war itself was illegal, thereby suppressing the 1972-like resistance that would otherwise have occurred.

Each of these three premises strikes me ...
Read 4 tweets
Marty Lederman Profile picture
Jan 9, 2021
Ok, yes, I'm genuinely grateful that all of these people are coming out now in favor of removing the dangerous blight on our political system and our nation. But would they have been insisting on his removal if he had said *the very same things* on Wednesday but the crowd ... [1]
... hadn't breached the Capitol? Where were they when Trump said these same vile things--& much worse (e.g., all of Volume II of the Mueller Report; the Zelensky call; "good people on both sides"; the call to Raffensperger; 10,001 grotesque tweets)--for the past 5 years? [2]
And the constant, corrosive outright falsehoods about the electoral process and so-called "fraud" that have led almost half the nation to lose all trust in that process? When these same Trump-inspired crowds threatened to kidnap & kill Michigan officials ... ? [3]
Read 8 tweets
Marty Lederman Profile picture
Oct 20, 2020
Perhaps the most important thing to realize about last night's 4-4 split in the PA ballot case is that the Democratic Party of PA begged the SCOTUS to not simply rule on the stay motion but instead to grant cert. "and summarily resolve this case ..." [1]

supremecourt.gov/DocketPDF/20/2…
... in order to provide certainty concerning legal questions that have assumed critical importance in light of the extraordinary circumstances attending the upcoming election."

The four dissenters could have done so, but chose not to. [2]

@rickhasen
And therefore the ruling wasn't a final assessment of even the legality of PA ballots that arrive between 11/03 and 11/06.
It saves resolution of that question for later--for after the ballots have been received.

That sent a clear message to the Trump campaign, to wit: [3]
Read 7 tweets
Marty Lederman Profile picture
Oct 20, 2020
I think Lyle is exactly right here. This wasn't a decision on the merits, and we should assume that when the Court grants cert. and reaches the merits just before or after 11/03, a very real possibility is that all late-arriving ballots *will not be counted.* [1]

@rickhasen
The Court's message to Trump's team about their prospect of success is loud and clear--and they know they're better off if they win *after* 11/03. What's more: This was the *weakest* case for Trump of the big ones remaining, b/c it was review of a *state* court's reading ... [2]
of *state* constitutional law. If 4 or 5 Justices are willing to reverse *that* (a very radical view, one that only be explained by pure partisan favoritism), then the judicial decrees in, e.g., NC & WI are even more vulnerable. (AFAIK the MI case in state court is finished.) [3]
Read 8 tweets

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