Is The Supreme Court Trying To Bring On A National Divorce?

Two rulings Friday and today emanating from the U.S. Supreme Court on the question of state sovereignty – or more specifically the ability to check the abusive power of the federal government – have raised the likelihood of something many are talking about. Namely, the notion of a national divorce.

The first ruling is a derivative of a terrible Supreme Court decision in the Milligan case out of Alabama, in which the congressional map drawn by the state legislature which had six Republican-leaning districts and one majority-minority district out of the state’s seven House seats was thrown out. Alabama’s population is around 28 percent black, and therefore the Supreme Court said in a 5-4 decision it had to have two majority-minority districts.

Today’s ruling applied that logic to Louisiana, which is about a third black and has only six congressional seats but whose demographic makeup as applied to its geography is far more complex than Alabama’s. It’s impossible to draw a second majority-minority district in Louisiana without it looking like a Rorshach test, something which is made clear again and again when someone draws up such a map.

Nevertheless, it looks like Louisiana’s legislature is going to be ordered to undergo redistricting yet again.

The Supreme Court said Monday that Louisiana’s congressional map must be redrawn to add a second majority-Black district.

The justices reversed plans to hear the case themselves and lifted a hold they placed on a lower court’s order for a reworked redistricting regime. There were no noted dissents.

The move from the high court comes after a ruling the justices issued earlier this month about Alabama’s congressional maps that upheld how courts have historically approached the redistricting provisions in the Voting Rights Act, the landmark civil rights law that Black voters are using to challenge the Louisiana congressional plan.

Louisiana state officials were sued last year for a congressional map – passed by the Republican legislature over Democratic Gov. John Bel Edwards’ veto – that made only one of its six districts majority Black, despite the 2020 census showing that the state’s population is 33% Black.

“Today’s decision follows on the heels of the court’s 5-4 ruling earlier this month holding that Alabama also has to re-draw its congressional district maps to include a second majority-minority district,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

“And like the Alabama ruling, it doesn’t explain why the court nevertheless had issued emergency relief to allow Louisiana to use its unlawful maps during the 2022 midterm cycle,” Vladeck added. “It puts the court’s interventions last year into ever-sharper perspective.”

The order means that the lower court proceedings in the case, which were put on hold by the conservative majority in late June of last year, will restart. At the time, a merits panel of the 5th US Circuit Court of Appeals was preparing for an expedited review of a judge’s ruling that said that the 5-1 congressional plan likely violated the Voting Rights Act.

What could very well happen is that the Fifth Circuit issues a ruling which either gives leeway to Louisiana on its reapportionment, because Supreme Court jurisprudence holds that race can’t be the defining factor in things like House districts and it’s pretty sketchy to draw a map in which Bogalusa and Shreveport are in the same district (which you pretty much have to do in order to get a second majority-black congressional district) if you’re trying to draw a map around “communities of interest.”

If that’s the case then the legislature will draw more or less the same map it has now.

But if the Fifth Circuit takes a more direct view of the Supreme Court’s Milligan ruling as applied to Louisiana, we’re going to have a problem.

Because the Louisiana legislature, particularly in an election year, is not going to draw Julia Letlow out of her congressional seat in order to essentially provide affirmative action for a black Democrat politician to go to Congress. Any Republican who votes to do that is cutting his or her political throat. It simply will not happen, and it doesn’t matter what the Fifth Circuit says. Louisiana’s legislature is not subservient to the Fifth Circuit, and federal judges cannot dictate the passage of bills by a state legislature. They can negate bills they find afoul of law, but the legislature has to pass with a suitable majority vote anything that would become state law.

And that means Judge Shelley Dick, the partisan Democrat Obama-appointed federal judge in the Middle District of Louisiana, will draw up her own congressional map and impose it on Louisiana until reapportionment happens again in 2031. And that will not go over well at all.

What if this mushrooms into similar chaos all over the South and in other red states, where Obama, Clinton and Biden judges throw out congressional maps drawn up by sizable Republican majority state legislatures and in so doing potential create a Democrat majority Congress?

Are red states going to take as legitimate the laws passed by such a Congress? Particularly when those laws are of dubious constitutionality and directly harm the interests of those states?


Which brings us to another ruling by the Supreme Court – this one perhaps even worse.

The U.S. Supreme Court dealt a major blow to Texas and Louisiana Friday in a lawsuit over a Biden administration policy that’s helped effectively end most deportations of foreign nationals in the U.S. illegally.

Rather than rule on the merits of the case, in United States v. Texas, the court ruled 8-1 that the states didn’t have standing, or a legal right, to challenge the policy.

Justice Samuel Alito wrote the sole dissent, arguing the justices ignored “a major precedent.”

He wrote, “The Court holds Texas lacks standing to challenge a federal policy that inflicts substantial harm on the State and its residents by releasing illegal aliens with criminal convictions for serious crimes. In order to reach this conclusion, the Court brushes aside a major precedent that directly controls the standing question, refuses to apply our established test for standing, disregards factual findings made by the District Court after a trial, and holds that the only limit on the power of a President to disobey a law like the important provision at issue is Congress’s power to employ the weapons of inter-branch warfare – withholding funds, impeachment and removal, etc. I would not blaze this unfortunate trail. I would simply apply settled law, which leads ineluctably to the conclusion that Texas has standing.”

Last June, a federal judge in Texas, U.S. District Judge Drew Tipton, ruled in favor of Texas and Louisiana, arguing they would incur costs due to the federal government’s failure to comply with federal immigration law and deportation policies. The judge ruled the states had standing to sue because of these costs. He also vacated the deportation policy, arguing it was unlawful.

The Biden administration appealed to the Fifth Circuit, which again handed a victory to the states by declining to stay the lower court’s ruling. The Biden administration appealed to the Supreme Court, which granted cert. Last fall, the court heard oral arguments and on Friday ruled the states lacked Article III standing.

At issue in this case is the fact that Alejandro Mayorkas’ Department of Homeland Security is outright ignoring congressional law on deportations and using its “discretion” to fail to deport illegal aliens in significant numbers. So what you’re seeing is an unconstitutional and illegal federal government action which imposes significant costs on the states, Texas in particular, and now the Supreme Court is telling Texas that it’s powerless to do anything about this in court because it won’t even grant standing to make its arguments.

To say this is an incredibly bad precedent is an extreme understatement.

Again – if the states are going to have their congressional maps imposed on them by a federal judiciary which affords them no ability to seek redress in court even when the federal government violates other elements of state sovereignty, then we’re going to quickly come to an impasse we haven’t seen since the late 1850’s.

And when the federal government in question is run by a cabal of people put in power in an election most Americans believe was sketchy, with a President who is quite credibly accused of taking bribes from China and Ukraine, it has far less legitimacy in 2023 than it had in 1859.

Now is when the Supreme Court ought to be affording as much deference to the states as it can, in hopes that they might check some of the abuses of the feds and relieve some of the mounting pressure. That this isn’t happening might call into question whether the constant attempts at intimidation of Supreme Court justices that the U.S. Department of Justice has steadfastly failed to prosecute aren’t succeeding.

Which would be another reason red states might decide to ignore the federal judiciary and go their own way. And how far will that go?



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