Democrats, the Cato Institute’s Andy Craig points out at The Daily Beast, are trafficking in panic over an upcoming Supreme Court case, Moore v. Harper.

While the case is nominally about who gets to decide whether newly drawn political district lines pass constitutional muster,  its particulars intersect with controversy over something called the “independent state legislature doctrine,” and therefore with disgraced former president Donald Trump’s scheme to overturn the 2020 presidential election using slates of fake “alternate electors” to replace the real ones.

If the Court gets this wrong, the Democratic Party line goes, state legislative majorities can just throw out presidential election results that don’t go their party’s way, and instead appoint presidential electors who support their preferred candidates.

Craig’s case against the panic is solid: While the US Constitution does say that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors,” it also provides that “Congress may determine the Time of chusing the Electors.” That time is “election day,” currently set by federal law as the Tuesday after the first Monday in November.

Once that election has been held, the electors have been chosen. No backsies. If a state legislature wants to choose electors in some other way, it has to act BEFORE the election rather than in a fit of pique afterward.

There is, however, a larger issue with the “independent state legislature” doctrine, and that issue is whether state constitutions (and state court rulings under those constitutions) may in any way constrain a legislature’s power to “direct” the “manner” of choosing electors.

Could, for example, the Florida Senate and Representatives just unilaterally decide to choose its presidential electors based on the outcome of a bipartisan game of strip poker, where each hand is worth an elector in addition to a discarded pair of boxer briefs?

The answer is no.

Florida’s state constitution specifies the manner of choosing electors, and Florida’s legislature is bound by that constitution.

Where federal jurisdiction is concerned, another part of the Constitution is worth looking at. Article IV, section 4 specifies that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.”

While we could argue over precisely what constitutes a “republican form of government,” a lawless legislature, declaring itself unbound by the votes of the electorate and the constitution which empowers it to govern, clearly doesn’t meet the standard.

Neither would a military junta which used the Texas Army National Guard to seize control of Austin, or a crank who declared himself emperor of New Hampshire from his Manchester apartment.

State legislatures may only “direct” the way electors are chosen within the strictures set by their states’ constitutions, and they can’t retroactively change those procedures after the date set by Congress for an election.

It seems unlikely that the Supreme Court will use Moore v. Harper to void the US Constitution, state constitutions, and its own power to enforce the “republican form of government” clause.

So don’t panic. Yet.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

If I gave you a million dollars to invent a better mousetrap, and told you that if you succeeded you could keep any and all profits associated with the invention, you’d probably consider that a pretty good deal.

But if I gave your neighbor Bob a million dollars of YOUR money to invent that mousetrap, on the same conditions, you’d probably take issue with the idea.

Even if you were interested in investing in mousetrap innovation, you’d probably want a return on your investment.

And even if I described Bob’s enterprise as a “non-profit,” you’d likely at least want the better mousetrap design made freely available for anyone to use,  instead of enriching Bob above and beyond whatever stipend he paid himself while working on the invention.

If the hypothetical Bob above is a tax-funded university, though, you’d just be out of luck. Billions of dollars of government research funding goes to universities every year, but once the research produces results, those universities often take the resulting profits for themselves rather than refunding even the original startup money to taxpayers.

An example from my own neck of the woods:

In 2020, the University of Florida knocked down more than $900 million in research funding, up 45% from 2011. Nearly $640 million of that funding came from federal government grants and another $43 million from state and local governments.

The university’s research foundation also received 140 patents on the products of that research and signed a record 132 licenses and options on its “intellectual property.” It claims around half a billion dollars in license revenues from 2008-18.

Why should taxpayers fund research just so that taxpayer-funded institutions can keep the money for themselves … and keep demanding more money for more research?

And what’s the additional “social cost” of funding research, then letting the results be trapped in patent protection rather than put in the public domain?

Suppose the US government spends a billion dollars funding research into a cure for cancer, and such a cure is found.

Hooray! Cancer is cured!

Except that the university where it was developed won’t just release the recipe so that any drug maker can turn out the cure for a dollar a pill. They’ll patent the recipe, then license it exclusively to one drug maker, who will sell it for $5,000 a pill.

The university picks your pocket on the front end, Big Pharma mugs you at gunpoint on the back end.

If we’re going to tolerate the fiction of “intellectual property” in inventions — really just a state-granted monopoly on ideas to the first persons to fill out some paperwork — we should at least insist that tax-funded research results be treated as “works for hire,” and that we, not our employees, be considered their “owners.”

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

“We’ve laid out for the leadership of Iran what we’re willing to accept in order to get back into the JCPOA” US president Joe Biden said at a press conference in Jerusalem on July 14. “We’re waiting for their response. When that will come, I’m not certain, but we’re not going to wait forever.”

That’s an odd way of putting things, seeing as how it’s Joe Biden who’s spent the last year hemming, hawing, and finding new excuses to avoid “getting back into” the Joint Comprehensive Plan of Action, aka the “Iran nuclear deal,” while the Iranians have continually indicated that they’ll gladly “get back into” the deal any time the US does.

The history, briefly:

After a decade of the aforementioned US hemming, hawing, and finding new excuses to back out every time Iran said “yes,” the JCPOA was finally agreed to, signed, and ratified as a United Nations Security Council resolution in 2015.

It was an easy deal for the Iranians to accept, since all it did was forbid them to develop nuclear weapons, which they were already bound not to do under the Nuclear Non-Proliferation Treaty, and by a clerical fatwa declaring such development a sin against Islam, and which, according to both the US and Israeli intelligence communities, they hadn’t been doing.

The US, though, immediately started defaulting on its own obligations under the JCPOA, which involved lifting sanctions on Iran. And in 2018, US president Donald Trump announced that the US was henceforth going to just openly violate the deal. He characterized the violation policy as “withdrawal,” but the only way to “withdraw” from a UN Security Council resolution is to withdraw from the UN itself, which the US has not done.

Only since then, at a careful, slow pace, have the Iranians begun enriching uranium to higher levels than the deal allows for. Not to weapons or even NPT-violating level. Just enough to make the point that if the US won’t keep the deal, they won’t either.

Biden, meanwhile, pledged during his 2020 presidential campaign to return the US to meeting its obligations under the deal, but always with caveats and “what ifs.” And since actually becoming president, he’s worked overtime to avoid either a new deal or following through on the old one … all while blaming the Iranians.

The Iranians don’t seem to have, want, or be working on getting nukes. But for some reason, Biden seems bound and determined to poke and push at them until they decide heck, why not get nukes?

Why? Two reasons.

First, the US has effectively been at war with Iran for four decades, since the revolution that overthrew the US-puppet, CIA-installed Shah. Iran is an evergreen excuse for meddling in the Middle East and shoveling money at the US military-industrial complex.

Second, the Israeli lobby, which enjoys considerable influence in US politics, uses the fake “nuclear Iran” threat to keep US aid checks coming.

Biden should get off the dime and re-implement the original deal, or stop pretending he’s interested.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY