Last Wednesday, as I was planning to start writing my Verdict column for publication the next day, news broke that violent rioters had invaded the United States Capitol on what would soon turn into a deadly and murderous rampage. I immediately decided to put that column aside until there was some clarity about what was happening, which is surely the least consequential result of last week’s attempted bloody coup.
After a week of reflection, and amid the ongoing inanity coming from the White House and many Republicans in Congress, I have decided not to focus on the mayhem or even the deadly lies that fed so many people’s wild fantasies of a stolen election. While those are clearly the most important matters facing us today, it is also essential not to allow the legalistic excuses being offered by the Senate’s chief seditionists to go unchallenged.
In particular, Senator Josh Hawley of Missouri returned to the Senate chamber and—even after seeing his nation’s legislature being sacked by people whose delusions he had nourished—put on an innocent look and claimed that what he was doing was the peaceful thing to do. Denying that he was encouraging or validating violence, he assured the world that he merely wanted to debate the nonexistent merits of Trump supporters’ beliefs about election fraud.
This is beyond nonsense. Here, I want to challenge Hawley’s proffered reason that the Senate should have heard challenges to the counting of electoral votes. It turns out that no matter how he might try to justify what he was doing, every excuse runs into a constitutional wall. He was, indeed, willing to violate the United States Constitution in order to overthrow the duly elected incoming President—and, of course, to further his own cynical plans to run for President in a future election, an election that would be rigged to his liking.
The People Cannot Speak About Every Political Question: That Is Why We Have a Republic
With calls to expel Hawley and Ted Cruz (as well as others) from Congress growing louder by the day, the excuses for keeping them in office are increasingly strained. For example, lame-duck Republican Senator Pat Toomey has been a study in contradictions. He has admitted that the vote counts in his home state of Pennsylvania were fair and legal, and he has said that Donald Trump lost the election. This is all good.
On the other hand, Toomey has made a bizarre pair of claims: (a) Trump is a demagogue who should resign, but (b) Toomey supported Trump in November and (apparently still) wishes that the election had turned out differently. Toomey was also among the 51 Republican senators who voted to acquit Trump at the first impeachment trial a year ago, saying that the people should decide whether Trump should stay in office. It is good that Toomey now admits, when forced to do so, that the people decided against Trump, but one might have hoped that he had learned that kicking the problem down the road can lead to much worse results.
Apparently, however, Toomey did not learn that lesson. When asked whether Hawley and Cruz should be removed from office, Toomey pulled an oh-so-clever move, saying that the two seditionists would be punished—just not by him or his colleagues:
I think they’re going to pay a very heavy price. … Their voters will decide whether they get another term. And they’re both young enough men that I’m sure they would certainly like to do that. So I think it should be left to the voters of their state to decide what their fate is.
This is even more ridiculous than saying that Trump’s first impeachment should not have happened. Both arguments amount to saying that the Constitution and our laws contain surplusage. Thus, this whole “high crimes and misdemeanors” thing that allows Congress to remove a president from office is apparently unnecessary (not during a first term, because of the prospect of reelection, and not during a second term, presumably because “he’ll be gone soon”). And removing senators from office? Well, the people can do that, too, so elected representatives do not have to stand up and do their duty. Apparently, rule by plebiscite is the only thing that would satisfy Toomey.
Moreover, neither Hawley nor Cruz is likely “to pay a very heavy price.” Both are from very reliably red states whose governments are frantically trying to disenfranchise ever more non-Republican voters. Texas, for example, at one point seemed plausibly in play in 2020, only to have the Republican governor decree (among other things) that each county could have only one drop box for absentee voting—which is great for sparsely peopled red counties and terrible for populous blue ones.
To say that the country that Hawley and Cruz betrayed can only achieve justice by convincing the voters of Missouri and Texas to vote out their incumbent senators in 2024 makes a mockery of the notion that the United States Senate has any control at all over its members who commit treasonous acts. As Washington Post columnist Jennifer Rubin (who first pointed out the absurdity of Toomey’s “let the voters decide” dodge) put it: “Inaction is complicity.”
Hawley’s Argument is Not Clever Lawyering
But there is a deeper problem, from a legal perspective, and it is captured in the sentence that I replaced with an ellipsis in the quote from Senator Toomey above: “What they did was, it was technically permissible under the Senate rules.” In other words, Toomey is saying that there is a clever reading of some legal documents that somehow justifies what Hawley and Cruz have done.
This is an example of a concept that I discussed in a Verdict column last February, where I coined the term “legalistic lawlessness.” There, I was imagining that Trump might succeed in his completely foreseeable coup attempt and stay in office, at which point the country would become a democracy in name only and essentially would no longer be governed by the rule of law.
My key prediction, however, was that there would at least be an attempt to present the increasingly arbitrary exercise of raw power as “completely legal.” After all, it feels a lot better to judges and legislators to say that what they are doing is legitimate. The Nazis passed laws that made the Holocaust not merely legal but mandatory. In the United States, in addition to the fully legal institution of slavery, we have had legal regimes that justified or ignored lynchings, literacy tests, forced sterilizations, and more.
In some instances, then, we find it necessary to step outside of such self-reinforcing legal regimes to say that something is wrong, even when it is currently legal. But Toomey is refusing to do that when it comes to Hawley and Cruz, hiding behind a cowardly excuse: What they did was technically okay, so even though it was wrong, there is nothing that he can do about it under the law.
Even if that were true, I would have no problem saying—as one would say about slavery or any other atrocity—that “legal is not always right.” In this instance, however, we need not even go there. What Hawley did was, on its own terms, legal hogwash—mildly clever, but still hogwash under the law as it exists.
Pennsylvania’s Law Is Simply Not What Hawley Wants It to Be
Last Wednesday night, Senator Hawley argued that only the U.S. Congress can address legitimate questions that have not been addressed to his satisfaction in the states or in the federal courts. He thus presented himself as the last hope of the rule of law, even as he subverted it.
Standing in front of his colleagues—and a Vice President who had literally been hunted by a lynch mob only hours before—Hawley used his debate time to explain why he was challenging Pennsylvania’s slate of electors. (He did this, mind you, while debating a challenge to Arizona’s electors, but apparently procedure is as malleable as Hawley decides it is.)
What was his claim? Pennsylvania’s Supreme Court, he intoned, had never actually ruled on the merits of Trump supporters’ challenge to a change in state law that expanded mail-in voting options in the Keystone State. That law, passed overwhelmingly by a state legislature run by Republicans, had been passed a year before the election. When the state’s supreme court ruled on the case, it relied on the doctrine of “laches”—unreasonable delay by plaintiffs—to deny the relief.
Because the court did not go on to directly state that the plaintiffs’ claims were wrong on the merits, Hawley concluded that the court had never ruled on what Pennsylvania’s state constitution requires, meaning that there was no existing ruling to which federal actors should give deference. In a move of breathtaking anti-federalism, Hawley in effect said that the U.S. Congress could rule that Pennsylvania’s legislature and governor had violated Pennsylvania’s constitution, even though that state’s supreme court had never said so.
This is wrong. The doctrine of laches is an equitable doctrine that courts invoke in order to do justice. The entire notion of “unreasonable” delay revolves around the question of the underlying stakes in the dispute. Any justice on the Pennsylvania Supreme Court could have said something like this: “Yes, the Trump campaign took a long time to file this claim, and normally I would have been inclined to dismiss the claim under the doctrine of laches. However, the law that plaintiffs challenge here truly is in violation of our commonwealth’s constitutional structure, so in the interest of equity, we must not penalize the plaintiffs for their tardiness. The stakes are too high, and the constitutional violation is clear.”
Anyone with even passing familiarity with American courts (and Hawley has two clerkships under his belt) knows that courts are very comfortable invoking the simplest reasons for their decisions and to be minimalist in doing so. That is what standing doctrine (which has been distorted in many ways, although that is a separate matter) is designed to do: “We don’t have to say anything about the merits, because we have no jurisdiction.”
Similarly, when the Pennsylvania Supreme Court said, “You were unreasonably late,” it did not have to proceed to discussing and rejecting the case on the merits. What is different about an equitable doctrine like laches, however, is that—unlike jurisdiction, which is legally required—it can and would be set aside if the court saw a constitutional violation that needed to be remedied.
For Hawley to say that “we just don’t know” what Pennsylvania’s constitution requires on this question, then, is simply false. The court was given the opportunity to rule that the new statute was unconstitutional, and it chose not to do so. The court let the law stand, when it was not required to do so. The Pennsylvania Supreme Court did rule that the law is constitutional.
Moreover, in a recent conversation, my fellow Verdict columnist Michael Dorf pointed out to me that Hawley’s argument, even if it were true, violated the “legislatures-only” argument that the Trump campaign had been promoting in trying to get the Pennsylvania legislature (as well as other states’ legislatures) to overturn the legitimate votes cast by their citizens.
Article II, Section 1 of the Constitution includes the Presidential Electors Clause, which reads: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors . . . .” If that clause literally referred to “the legislature, acting outside of all other requirements of its state’s constitution, so that the governor and the state supreme court are simply irrelevant,” we would know even more directly what the relevant law is in Pennsylvania, because it is the Republican-run state legislature itself that passed the law that Hawley says is not valid Pennsylvania law.
In short, whether one looks at Pennsylvania’s constitutional system as a whole or (wrongly) limits oneself to looking solely at the state’s legislature, Trump did not win that state’s electors. Hawley had no business saying that the U.S. Congress could set aside what Pennsylvania had done.
That Hawley’s move was, as noted above, anti-federalist is the least of the problems here. If we are to take Senator Toomey’s lead and say that “Hawley technically did nothing wrong,” we would have to say that Hawley was on firm legal ground in using the January 6 formal counting of votes to challenge states’ electors.
But he was not. He was, in fact, asking Congress to violate the U.S. Constitution.
Challenging Votes Under the Electoral Count Act
Why did Hawley think that there was any legal basis for raising a challenge to any of Joe Biden’s electors in the first place? Hawley was relying on the Electoral Count Act, which was passed several years after the fiasco of the Hayes-Tilden election of 1876. In that election, there were competing slates of electors from a few states, with each group of would-be electors having at least some claim to legitimacy by virtue of having been appointed by either the governor or the legislature of their states.
The Electoral Count Act thus is designed to answer the question: “Which electors did this state truly appoint?” For that to be relevant, however, there have to be legitimately competing sets of electors from which to choose—and those competing slates cannot merely be a bunch of people saying, “We want to be recognized as the electors for our state.” There must be a legitimate dispute over two slates, each of which could plausibly be deemed to have been duly-elected.
There was no such dispute last Wednesday. Nonetheless, Hawley et al. decided to exploit what they saw as a legalistic opening in the Act that supposedly allowed them to say that some states’ electors were not “regular,” or something like that. While it is true that the Act is notoriously poorly written, the legalistic opening on which Hawley relies does not exist.
One of two things must be true about the meaning of the Act. The better approach is to say that the Act must be construed to mean what it was intended to mean, which is (as stated above) that a state’s electors can only be contested when there are two plausible slates with some non-specious claim to legality.
But if Hawley tries to step around that problem by insisting on a second approach, where the intent of the law does not matter and he can do anything he wants to, then he is even worse off. His reading of the Electoral Count Act would mean that the Act clearly violates the U.S. Constitution’s provision that the states determine who their electors will be.
That is, if Hawley says, “I am concerned about tales of voter fraud, and I am using the Electoral Count Act to supersede the electors that the state appointed because I think the state got it wrong,” then he has bumped up against Article II, Section 1, which (as noted above) reads: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors.”
Thus, Hawley cannot win either way. In order to be constitutional, the Electoral Count Act can only be invoked when Congress is presented with a genuine dispute over appointment of electors under state law. Hawley’s preferred reading of the Act would allow Congress to invalidate electors whenever it felt that there might be a problem, which it cannot do. The Supreme Court, hearing such a dispute, would probably invoke the avoidance doctrine by saying that the limited reading of the Act is its true meaning. If not, it would have to declare the Act to be unconstitutional, and the avoidance doctrine requires it to avoid reaching such a conclusion if it can.
Otherwise, Congress and not the states would simply appoint the electors from every state that it decides to ignore. At the whim of a majority of its members, Congress would turn the Electoral College into a mere vessel for allowing the federal legislature to decide who wins the presidency every four years. A future Congress, with one party controlling both the House and Senate, could—by mere majorities in both houses—say that whatever happened on Election Day and even in the Electoral College itself can be set aside.
Hawley, then, did not find a clever opening in the law. No matter how one defines “legislature” for Article II purposes, Pennsylvania’s government (and the governments of the other swing states) legally appointed their electors. And even if Hawley wanted to claim otherwise, his use of the Electoral Count Act would be unconstitutional.
This was not, then, legalistic lawlessness. It was naked lawlessness, pure and simple.
What Hawley, Cruz, and others did was simply the nonviolent complement to Trump’s coup attempt. They tried to get their colleagues in Congress to violate the Constitution, and their pious claims to being committed to the rule of law are now revealed to be even emptier than ever.