CREATORS
Last June, a federal judge in Texas blocked a two-decade-old law offering
undocumented residents the same discounted tuition as other in-state college
students, after the Trump administration sued Texas over the law.
That is
not surprising. Making it difficult for undocumented residents has become the
cornerstone of this administration. However, what is surprising is that the
state's Republican lawmakers tried unsuccessfully to change the law only days
before the lawsuit was filed.
Most
surprisingly, the day the federal lawsuit was filed, the state of Texas
settled. According to The New York Times, Texas Attorney General Ken Paxton, a
close ally of President Donald Trump, simply agreed that the state law should
be invalidated.
The
legislature, which was unable or unwilling to amend or strike the law, was
sidestepped. What is wrong with smart lawyers at the Department of Justice and
the Texas Attorney General's Office finding a clever way to get done what the
181 members of the Texas legislature could not?
The
problem is that sham lawsuits violate the U.S. Constitution and this is not the
only time the Trump Justice Department has colluded with states to violate the
Constitution, circumventing the legislative process.
Article
III, Section 2 of the U.S. Constitution limits federal court jurisdiction to
actual, ongoing disputes between adverse parties, prohibiting courts from
issuing advisory opinions or ruling on hypothetical scenarios.
Pursuant
to the "Cases and Controversy Clause," parties to a lawsuit must
truly be adverse to each other, the dispute must be concrete and the dispute
must be capable of being resolved through an award of specific relief. That was
not the case in Texas. The outcome was known before the suit was filed.
In
Florida, according to The New York Times, the Trump administration reached a
legal settlement in February, with the Republican-led state requiring the
Department of Homeland Security to forgo its authority to admit immigrants for
15 years. Though reached with a state government, the settlement could affect
immigration policy for the whole nation.
In
Kentucky, the federal Department of Transportation proposed a settlement in a
case with a pair of industrial companies challenging decades-old racial and
gender-based preferences, acceding to the businesses and agreeing to end use of
the preferences in its contracting nationwide.
More than
a half a century ago, Chief Justice Earl Warren suggested that cases and
controversies "limit the business of federal courts to questions presented
in an adversary context and in a form historically viewed as capable of
resolution through the judicial process ... a tripartite allocation of power to
assure that the federal courts will not intrude into areas committed to the
other branches of government." As a result, suits that are collusive or
feigned by two friendly parties to resolve a question of interest to them are
unconstitutional.
If the
blatant legal schemes in Texas, Florida and Kentucky — defying the Constitution
—are not enough, consider this major Trumpian hustle. Trump is suing himself
and demanding a settlement. The IRS falls under the executive branch of the
U.S. government. It operates as a bureau within the Department of the Treasury,
which is one of the 15 executive departments. The Secretary of the Treasury is
appointed by the president and serves at his pleasure.
At the
heart of the case is Trump's contention that the federal government should be
held liable for the leak of his federal tax returns during his first term as
president.
Trump
wants the Treasury Department and IRS to pay damages to him in the amount of
$10 billion. Could Trump demand that Treasury Secretary Scott Bessent settle
the case and pay out?
You probably think something like that is far-fetched. Well, Democrats in the United States Senate don't think so; they introduced the "Stop Presidential Embezzlement Act," which would block any financial benefit to Trump resulting from the $10 billion lawsuit.
Matthew T.
Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His
book, "The Executioner's Toll," 2010, was released by McFarland
Publishing. You can reach him at www.mattmangino.com and follow him on Twitter
@MatthewTMangino
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