It looks like I’m not going to get any answers to my questions about the “11th Amendment” argument to “invalidate” Citizens United.
Last week, I discussed the Essential Information’s amicus brief, which was a complement to The Eleventh Amendment Movement’s (“TEAM”) amicus brief, both of which argued that the Eleventh Amendment deprived the Supreme Court of jurisdiction to review (and reverse) a Montana state court decision rejecting Citizens United. At the end of the day, my main observations were (1) that even if TEAM and Essential Information were 100% right about everything they said, the Montana law could still be reversed the moment Montana tried to actually enforce it, and (2) that even if the Supreme Court rejected Ex parte Young as a basis for jurisdiction in the district courts, it would be a huge break from precedent for the Supreme Court to decide that it did not have appellate jurisdiction over state court cases that (admittedly) could not be initially filed in federal court. (The TEAM brief did not address this second issue at all; the Essential Information addressed the issue, but tried to make it seem like prior cases favored their approach, which they did not.)
After my first post, TEAM said the Essential Information brief would answer all of my questions. The Essential Information brief did address (sort of) the issue of appellate vs. original jurisdiction, but it (understandably!) did not address the issue of a future enforcement action. In response to my analysis of the Essential Information brief, TEAM thanked me for the “considered analysis” (via Twitter) but added:
You’re not quite grasping fullness/impact of briefs. Will detail soon.
Well, that sounded good! If folks were devoted to somehow “overturning” Citizens United via the 11th Amendment, I hoped that the organizations behind that movement would have some answer for (1) what to do about the future enforcement action and (2) why the 11th Amendment should be extended to the Supreme Court’s appellate jurisdiction in such an unprecedented fashion? But never fear: “Will detail soon!” I specifically responded by telling the TEAM folks that I would be “on the lookout” for a responsive post regarding those two issues.
Sadly, it turns out there will be no details soon. I just got a message (also via Twitter) from TEAM, stating that the “11th Amendment briefs stand strong on their own” and that my proposed “[h]ypotheticals” (regarding the enforcement action?) are “moot.” According to TEAM, the burden is now on the Montana AG to argue these issues and that I should “Call him today!”
So I think that’s it. Unless and until I hear some good explanation for why this 11th Amendment argument is worth taking seriously in light of (a) the future enforcement action and (b) the Court’s appellate jurisdiction, I’m not going to be paying this issue much/any more attention. It was fun while it lasted!