Friday, July 21, 2006

Amicus Lunacy IV: Legerdemain



Got a copy of the Abbott brief in the Tom DeLay residency case today. It makes the following arguments:

1. The first argument concerns itself with the rather technical issue of the cannons of statutory construction. The cannons are a set of guidelines on how to read a statute (since most are written by failed lawyers who decided to run for the state house, and thus make no actual sense). In this case, the cannons are employed to justify reading a statute in a way contrary to it's obvious meaning. Abbott argues that the residency determination in TEC 145 is a valid exercise of the state's power, and that if you read it in a certain kind of light, it almost seems compatible with the U.S. Constitution.

2. Second, it addresses the constitutionality directly.

3. Third, it argues the federal court has no authority to enjoin the Secretary of State's office. (A wholly specious argument)



Greg Abbott, tireless defender of electoral chaos


So really, this is only one issue at play here. Let's start by giving Abbott's summary of the lower court order:

1. The exclusive requirements for eligibility
to the U.S. House are provided by the U.S.
Constitution.

2. They require a candidate to be an
inhabitant of the state "when elected."

3. It is impossible to make any determination
of residency until election day.

4. Therefore, the TEC provision for determining
eligiblity amounts to a de facto residence
requirement before the election, which is an
unconstitutional attempt to add to the exclusive
eligibility requirements of the U.S. House.



Judge Sparks did not declare the TEC statute unconstituonal, but Abbott must portray the ruling in that fashion in order to file an amicus curiae brief. The argument is more of a entry ticket to the circus that a genuine claim. Abbott is correct on points 1-3 above, but the ruling does not strike down 145.003. The State chair is still authorized to declare a candidate ineligible if facts from a public record conclusively prove they do not meet one of the requirements of office. But no such facts exist that can conclusively prove where DeLay will reside on election day. Any such determination would be predicitive.

Abbott's brief cites Jones v. Bush, 122 F.Supp.2d 713, as it's primary source to support such a predictive judgment. That case involved a 12th amendment issue: The constitution requires that the president and vice president be inhabitants of different states. A Texas voter brought suit arguing Cheney was an inhabitant of Texas. Abbott cites the definition of "inhabitant" in this case to emphasize the importance of DeLay's "intent to remain" in Virigina as being key to the content of the word.

However, there are a couple of big holes in the Jones v. Bush case. First, the court made no ruling on the issue of when the question inhabitance is to be decided:



This is not true in the pending DeLay case. The date is the justiciable issue, and the Consitution gives explicit direction on the matter. But the real joy of the Jones v. Bush case comes in this concluding remark from Justice Fitzwater:

"It is evident from the preliminary injunction record that Secretary Cheney intended by his conduct to comply with the Twelfth Amendment, not to debase it through legerdemain."


legerdemain \lej-ur-duh-MAIN\, noun:
1. Sleight of hand.
2. A display of skill, trickery, or artful deception.
3. Tom DeLay

5 Comments:

Blogger Hal said...

Your caption for Abbott' photograph needs an addendum:

"Greg Abbott, tireless defender of electoral chaos, continually lies about his size."

3:33 PM  
Blogger muse said...

No way he is bigger than space shuttle guy.

10:18 PM  
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