DIVORCE AND REMARRIAGE REPUBLICAN STYLE

Well, that was a mess.

On October 3, 2023, House Republicans voted to oust Rep. Kevin McCarthy (D. Ca.) as Speaker and yesterday -- three failed nominees, Hamas's barbarism, Ukraine's continuing fight, twenty-two days of House paralysis and a looming (yet again) government shutdown later -- they finally found a replacement.

He is Mike Johnson, a 51-year-old, Louisiana backbencher in his third term.  

In his brief career as a Congressman, Rep. Johnson's chief accomplishment has been to write an amicus brief supporting Texas's demand that the Supreme Court stop Congress from counting the electoral votes in four states Joe Biden won in the last presidential election.  The suit was filed on December 2, 2020. Johnson moved for leave to file his brief on December 10. The Supreme Court dismissed the entire case on December 11.

On the day he made his motion, Johnson posted a tweet. It said he was "proud to lead over 100 of [his] colleagues in filing an amicus brief to express our concern with the integrity of the 2020 election." Whatever may have been the source of his pride, however, it could not have been the filing of the brief.  

Because the Supreme Court never accepted it.  

Rather, it just denied Texas's petition the next day and then dismissed all pending motions, including Johnson's, as moot.

For Johnson, this was probably all to the good.

In his life before Congress, he fashioned himself an expert on constitutional law.

Constitutional lawyers, however, have not expressed much admiration.

His amicus brief claimed that Pennsylvania, Georgia, Michigan and Wisconsin had each violated the Constitution by modifying their election procedures in advance of the 2020 presidential vote without those modifications having been first specifically approved by each state's legislature. The criticized measures were designed to facilitate voting during the pandemic and included things like increasing the number of absentee ballots distributed, increasing the number of drop boxes where ballots could be deposited, and beginning to process returned absentee ballots early rather than waiting to do so after the polls closed on election day.  All these measures were undertaken by state administrators or executives in compliance with state law and the vast majority had been passed on by state courts. But Johnson's (unaccepted) brief said they were all unconstitutional because the various state legislatures had not specifically authorized them.

Johnson's argument was a version of what is known as the "independent state legislature theory".  Under that theory, no governmental entity other than a state legislature can create or modify any electoral rules where the Constitution has given state legislatures the power to set those rules. So, no one other than a state legislature can set the rules on how its electors to the Electoral College are chosen because the Constitution (in Article II, Section 1, Clause 2) states that the appointment of those electors shall be done "in such manner as the Legislature directs".

Last June, in Moore v. Harper, the Supreme Court rejected a different version of the independent state legislature theory.  In that case, legislators in North Carolina sought to overturn a decision of its state Supreme Court that threw out Congressional maps on the ground that they violated the state's constitution.  The legislators claimed that the North Carolina Supreme Court had no right to do so because Article I, Section 4 of the federal Constitution provides that the "manner of holding elections for . . . Representatives . . . shall be prescribed in each State by the Legislature thereof".  The Supreme Court rejected that claim, holding that "The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review."

The Court in Moore was not presented with the precise issue raised in Johnson's amicus brief. 

But it more than suggests that Johnson's argument was baseless. 

In Moore, the Court made clear that legislatures do not exist in legal vacuums.  They are subject to state judicial review.  They are also  creatures of the various state constitutions that created them and their powers can be as expansive or as limited as those constitutions permit.  

The measures Johnson assailed were either approved pursuant to the laws of each of the states that issued them, expressly complied with those laws, or had not been pursued in the first place (i.e.,the states did not do what he or Texas said they did). And because the legislatures in those states could delegate their authority to administrative agencies or executive officers consistent with their respective state constitutions, the federal Constitution no more forbids that as a consequence of the Article II, Section 1, Clause 2's Electoral College Clause than it does judicial review as a consequence of Article I, Section 4's Elections Clause. Pennsylvania, Georgia, Michigan and Wisconsin did choose their Electors in the "manner" their legislatures provided.  They did so because that manner included the administrative and executive authority needed to modify election procedures in the face of a world-wide pandemic.

Johnson's legal argument was a non-starter.  

It is, however, now serving a different purpose for Republicans.

As the past year and certainly the past month has demonstrated, the GOP is a party at war  with itself.  There is a populist Trump faction that has given up on government and turned the Congress into a performance venue, an overlapping extremist wing now complaining about deficits they routinely ignored during the Trump years, institutionalists who want to see Congress work and keep the government's doors open, and moderates and those elected from districts Biden won who view their political survival at risk given current behavior.

In this dysfunctional environment, however, Mike Johnson became the first person in a month to receive the votes of all 220 Republicans in the race for Speaker.  He thus did what Kevin McCarthy, Steve Scalise and Tom Emmer, all members of the recent GOP leadership team, and Jim Jordan, the loud-mouthed MAGA performance artist par excellence,  could not do.  

He united them.

How was he able to do that?

Unlike Trump and his over-the-top allies, Johnson is not a bomb thrower.  When he was asked yesterday about his efforts to overturn the 2020 presidential election, he smiled and said "Next question."  His affect is that he did not claim invented votes or Venezuelan computer hacking or any of the nutty extremes that came out of the mouths of Giuliani, Sidney Powell, Jenna Ellis, the cable channel enablers or the Matt Gaetzes and the Jim Jordans. His beef, he says, is that we did not respect constitutional process. 

Given his demeanor (and his amicus brief), Johnson is a safe harbor for Republicans trying to skirt the downside of election denial.  A legal argument based on a claimed violation of the Constitution is not the equivalent of either the insurrection that ransacked the Capitol or the outrageous and sometimes bizarre lies told by the nutty extremists.  

So . . .

The moderates who refused to elect a Speaker who was an election denialist think Johnson qualifies because he can be cast as  a constitutionalist, and the bomb throwers who claim Trump won think he qualifies because he filed a brief to stop Congress from counting the electoral votes in four states that put Biden over the top.  

Of course, the constitutional process Johnson would have us respect was not violated.  Pennsylvania, Georgia, Michigan and Wisconsin did not unconstitutionally rig the rules.  They followed them.  And Johnson's  calm demeanor cannot turn a bogus claim into a good one. 

Or an insurrectionist into a constitutionalist.

The only remaining question is whether it can turn an extremist into an institutionalist.

Because Mike Johnson is an extremist.  

He is flat out against additional aid to Ukraine.  

He is  anti-choice. He co-sponsored a federal fetal heartbeat bill that would have outlawed abortion at six weeks and an amendment to the defense appropriations bill that would have stopped the Pentagon from reimbursing travel expenses incurred by those who have to go out-of-state to obtain abortions. 

He sponsored a national "Don't Say LGBTQ+" bill.  For more than a decade, he worked for the Alliance Defending Freedom (ADF), an anti-LGBTQ+ organization the Southern Poverty Law Center calls a hate group.  While at ADF, he claimed that "the homosexual lifestyle" is "morally wrong and physically dangerous".  He opposes any gender-affirming care.  He also opposes gay marriage.

He voted against last year's Inflation Reduction Act and the CHIPS and Science Act. He regularly parrots claims from the fossil fuel industry that belie climate change. 

To combat the deficit, he wants to impose new restrictions on the Supplemental Nutrition Assistance Program but opposes tax increases and would make Trump's tax cuts permanent.

It doesn't get any more extreme than all that.

But . . .

He does not want to shut the government down and has proposed a continuing resolution that would keep the doors open until either January 15, 2024 or April 15, 2024 depending on the views of his caucus.

And with the current GOP . . .

It won't get any more institutional than that.

The question is how much runway his colleagues will give him. The moderates who voted for him don't want the government closed or the House paralyzed by ongoing leadership feuds with the Speaker.  The bomb throwers, however, say Johnson's rise means, as Matt Gaetz put it, "MAGA is ascendant".  If so . . .

The runway will be very short.