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Ed Whelan Profile picture
@EdWhelanEPPC
Nov 13, 2024 • 5 tweets • 1 min read • Read on X
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Hope it's wrong, but I'm hearing through the grapevine about this bonkers plan: Trump would adjourn both Houses of Congress under Article II, section 3, and then recess-appoint his Cabinet.
As predicate for Trump's exercise of adjournment power, one House of Congress would seek other House's consent to adjourn and be denied. So Speaker of House would need to be complicit in evisceration of Senate's advice-and-consent role.
House Speaker Mike Johnson needs to say NO to this right away.
Not sure how this could go forward, though, if Senate agrees that House can adjourn but Senate itself remains in session. Maybe that explains the intense interest in getting Rick Scott as Senate majority leader. Or maybe there is some oh-so-clever workaround.
Easy for Trump White House to achieve a lot with Republican majorities in Senate and House. Why cook up crazy schemes? Hope grapevine rumor is wrong.

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More from @EdWhelanEPPC

Ed Whelan Profile picture
May 11
As expected, this is a crazy filing. Virginia makes two arguments in support of its request for an emergency stay.
1. It contends that the state supreme court's interpretation of the Virginia constitution is "predicated ... on a grave misreading of federal law." But the court merely cited a Supreme Court case as informative on, and supportive of, the general meaning of "election." This comes nowhere close to meeting the high bar of showing that the court ruled on a federal question.
2. Invoking the narrow exception left open in Moore v. Harper (2023), it contends that the court's ruling so “transgressed the ordinary bounds of judicial review such that it arrogated to itself the power vested in the state legislature to regulate federal elections.” But no justice is going to find the court's ruling manifestly bonkers.
Look for this stay application to be denied without any dissent.
Very weird that cover page states "On Emergency Application to the Supreme Court of Virginia." That's the styling for a petition for a writ of certiorari, but it makes no sense to say that the emergency application is "to" the Supreme Court of Virginia. Image
Here's link (thanks, @joshgerstein) to Virginia's stay application. s3.documentcloud.org/documents/2811…
Read 4 tweets
Ed Whelan Profile picture
Apr 1
THREAD. Schedule allowing, I’ll listen in on today’s birthright-citizenship case and live-tweet exchanges that strike me as interesting. I’ll be especially eager to see whether some of the conservative justices signal a disposition to rule against Trump on statutory grounds (and not to reach the constitutional question).
The argument is scheduled for 1 hour, but will likely run much longer (maybe 2-1/2 to 3 hours). Solicitor General John Sauer is up first, then ACLU’s Cecillia Wang, then Sauer’s rebuttal.
CT (softball): How does Citizenship Clause respond to Dred Scott? How read rest of clause re state citizenship?
SG Sauer: Main object was to overrule Dred Scott, establish citizenship of freed slaves and their children. Text of clause refers to "states in which they reside." Domicile test.
Read 38 tweets
Ed Whelan Profile picture
Jan 21
Trump v. Cook oral argument on president's power to remove Federal Reserve Board governor.
SG John Sauer for Trump, former SG Paul Clement for Cook.
(Not sure why it hasn't already started.)
Coming in late (technical glitch). Long question by SS on why Trump should get interim relief enabling him to remove Cook.
SG: There is no jurisdiction to restore public officer to office.
ACB on public interest factor on stay: Economists warn of recession.
SG: Market went up when she was removed.
ACB: I can't quantify risk, but doesn't that counsel caution? Do we weigh seriousness of alleged misconduct in stay posture?
SG: Appearance that Cook played fast and loose. Look at merits and stay factors. Traditional irreparable harms.
Read 24 tweets
Ed Whelan Profile picture
Jan 20
First Supreme Court ruling today: Berk v. Choy. Holding: Delaware’s affidavit law does not apply in federal court.
ACB majority for 8. KBJ concurs in judgment.
supremecourt.gov/opinions/25pdf…
Second ruling: Ellingburg v. U.S.
Holding: Restitution under the Mandatory Victims Restitution Act is plainly criminal punishment for purposes of the Ex Post Facto Clause.
Unanimous opinion by Kavanaugh.
Read 6 tweets
Ed Whelan Profile picture
Jan 13
Oral arguments in transgender sports cases begin at 10 ET. I will live-tweet comments on the arguments in this thread. Let's start with the lineup.
Montana case (Little v. Hecox) is up first. Idaho solicitor general Alan Hurst for 20 minutes, principal deputy U.S. solicitor general Hashim Mooppan for 10 minutes in support, Kathleen Hartnett for Hecox for 30. Case presents only Equal Protection issue.
Then West Virginia case (W.V. v. BJP). WV SG Michael Williams for 20 minutes, Mooppan again for U.S. in support for 10 minutes, Joshua Block for B.J.P. for 30. Case presents Title IX and EP issue.
These days the Court routinely exceeds the allotted time for advocates. I'll guess total argument time in the two cases will be 2-1/2 to 3 hours. (If it extends beyond 1:30 ET, I will have to duck out.)
Read 45 tweets
Ed Whelan Profile picture
Jan 12
On Tuesday, the Supreme Court will hear oral argument in a pair of cases—West Virginia v. B.P.J. and Little v. Hecox—that present the question whether state laws that preserve girls’ and women’s sports teams for girls and women violate federal law. 1/
I’ve had little to say recently about these cases for the simple reason that there is little that needs to be said. The challenged laws define who may play in girls’ and women’s sports on the basis of sex, not on the basis of gender identity. Rather than discriminate on the basis of gender identity, they disregard gender identity. Boys can’t play on girls’ teams, and that’s true both for boys who identify as male and those who identify as female.
Once you grasp this elementary point—a point that escaped the Fourth Circuit and Ninth Circuit—the claims dissolve into nothingness. 2/
It makes no sense to think that the Court’s 2020 ruling in Bostock v. Clayton County might extend to this realm. The Court ruled in Bostock that Title VII’s ban on discrimination “because of … sex” prohibits discrimination on the basis of transgender status (or sexual orientation). In expanding the grounds on which employers may not discriminate, that ruling (which I believe to be deeply mistaken) did not impose conflicting obligations on employers: An employer who does not discriminate on the basis of (biological) sex is also capable of not discriminating on the basis of transgender status.
The plaintiffs here accept that it is lawful for schools to have separate teams for girls and women. But once you accept that classifications on the basis of sex are permissible, it is logically impossible to insist that girls’ teams must also classify on the basis of gender identity. The latter destroys the former. 3/
Read 6 tweets

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