Authors Steve Vladeck

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Steve Vladeck
Steve Vladeck
@steve_vladeck
1. Texas is trying to sue PA, GA, MI, and WI to challenge their election results *directly* in #SCOTUS.

How can it do that, how does that work, and is this going anywhere?

Here's a quick #thread on the apex of legal arcana:

The U.S. Supreme Court's "original jurisdiction."

2. One of the reasons *why* the Founders created a Supreme Court was to resolve interstate disputes (e.g., over borders, water rights, etc.).

Because lower courts might be biased, #SCOTUS was given "original" jurisdiction in such cases — allowing such suits to *start* there.

3. And today, in suits between states, #SCOTUS's original jurisdiction is *exclusive,* meaning that lower state and federal courts *lack* the power to hear disputes between two or more

4. But the Court has long understood "exclusive" to *not* mean "mandatory," even though some Justices (such as Justice Thomas) believe that it is.

Instead, states must seek "leave to file" an original bill of complaint, and such a motion is *not* granted as a matter of course.

5. One of the factors the Justices look to is whether the *issues* in the case can be resolved in other cases in the lower courts, even if not between the same parties. Thus, the Court usually denies leave unless it's a *uniquely* state-state dispute (again, like borders/water).
POLITICS
Steve Vladeck
Steve Vladeck
@steve_vladeck
1. In light of this @RonanFarrow story about Larry Rendall Brock, Jr., an Air Force veteran, here's a quick #thread about the complicated, confusing, and evolving state of the law regarding when the military can (and cannot) court-martial retired servicemembers.


2. First, an important distinction: The military can *recall* most retirees to active duty. But that's not the same thing as whether they can be tried by court-martial for offenses committed *while* retired (and before being recalled).

That's where things get complicated.

3. The Uniform Code of Military Justice (UCMJ) authorizes courts-martial for *any* offense committed by those who have retired from a "regular component" and are receiving pay, along with members of the Fleet Reserve and Fleet Marine Corps Reserve (who are effectively retirees).

4. But the UCMJ authorizes courts-martial for offenses committed by those who have retired from *reserve* components only while "receiving hospitalization from an armed force." And #SCOTUS held in 1955 that the military cannot try those who have *separated* from the armed forces.

5. So whether Brock can be tried by court-martial — under current law, anyway — for his role in Wednesday's attacks depends upon his *exact* status as of Wednesday, i.e., whether he is separated from the Air Force, retired from active duty, or retired from the reserves.

But...
GOVERNMENT
Steve Vladeck
Steve Vladeck
@steve_vladeck
1. In honor of Trump’s last full day in office, and what may end up being the big story of the day, here’s a quick #thread on the President’s pardon power — and answers to some of the questions about it that may come up today:

2. Article II, § 2 of the Constitution gives the President the power to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

The idea was to provide the executive with a check on (perceived) excesses by the courts.


3. That’s why the pardon power is absolute; it wouldn’t be much of a check on the courts if they had the power to review every pardon. Instead, the remedy for abuses of the power, as Chief Justice — and former President — Taft wrote for #SCOTUS in 1925, is ... impeachment.

4. But which offenses can be pardoned? The widespread consensus is that the President may pardon any federal offense (this includes “local” crimes in federal territories like D.C.) by anyone *else* that has been committed (even if not charged) prior to the granting of the pardon.

5. This *includes* so-called “blanket” pardons, such as the one President Carter issued on his first full day in office for Vietnam-era draft
TRUMP