On May 1st, mind you a
Sunday supposedly a day of rest, in the matter of the Republican National Committee(Plaintiff)
v. Nancy Pelosi and the January 6th Select Committee(Defendants), one finds a
significant case in “opine” that could make “moot” other actions before the “Court(s)”.
Docked in the United States District Court for the District of Columbia, this
case assigned to an appointee of Donald John Trump and a member of the
Federalist Society, Judge Timothy James Kelly issued a “dissertation” as a “Memorandum
Opinion” that which sets the stage upon the “now” legal significance - or not -
of the word “Shall”. Basically speaking, Judge Kelly is adamant
that the use of the word “Shall” in the legal sense is but for a “semantic mess”,
which basically bears witness that the once upon a time use in acceptance any “binding”
attribute of that word in the framework of anything considered “legal”, no
longer a valid reasoning as “mandatory”. Judge Kelly’s “memorandum” states the
fact of the matter with respect to the legal ramifications of “shall” as
follows:
First, the RNC argues that the Select Committee lacks
authorization because it has only nine members, when its authorizing resolution
states that Speaker Pelosi “shall” appoint thirteen members. To the RNC,
“shall” is mandatory, meaning the Select Committee is improperly constituted
with only nine members. It’s not an unreasonable position. But for a few
reasons, especially given the House’s own reading of the authorizing
resolution, the Court cannot agree. Starting with the resolution’s text, as
this Court observed in upholding former President Trump’s right to name his own
acting Director of the Consumer Financial Protection Bureau, “although
‘shall’ is usually understood as mandatory,” the word is “a semantic mess” and
is sometimes used “to mean ‘should,’ ‘will,’ or even ‘may.’” Thus, that
the resolution states that Speaker Pelosi “shall” appoint thirteen members to
the Select Committee is not conclusive as to whether thirteen members are
required for it to lawfully operate. Especially given this mess, the
Court must give “great weight” to the House’s own reading of “shall”. If the
Court reads “shall” as mandatory, it
would be “interpret[ing] the Rule differently than . . . the [House] itself”
and “would effectively be making the Rules—a power that the Rulemaking Clause
reserves to each House alone.
Second, the RNC contends that the Select Committee lacks
authorization to issue the subpoena because it does not include the Republican
members Minority Leader McCarthy recommended to Speaker Pelosi to serve on the
Select Committee. This argument also is based on § 2(a) of the authorizing
resolution, which states that Speaker Pelosi “shall appoint” five Select
Committee members “after consultation with the minority leader.” Again, the
Court cannot agree. To the extent this argument rehashes the parties’
dispute over the word “shall,” for the reasons already explained, the Court
cannot find that the Select Committee is improperly constituted on this basis.
And if it is a dispute over the authorizing resolution’s use of the word
“consultation,” for similar reasons, the Court cannot side with the RNC.
To “consult” with Minority Leader McCarthy, all Speaker Pelosi had to do was
ask for his “advice or opinion.” See Consultation, Black’s Law Dictionary (11th
ed. 2019). There is no dispute that she did.
Yet in the “Abortion Ban
Draft” that is being circulated around the beltway, in that Sam Alito premature
publication, one finds the word “shall” still behaving in the legal sense as a mandatory
addiction, 287 incidents of the “shall” in the High Courts “opine”, inclusive in
33-pages of the 98-page initial brief - that which castrates our Constitutional
wherewithal. Which tells me we have an “asleep at the wheel” Chief Jester
Robert’s court. As what is delivered in the lower courts should be reserved,
respected and it appears no such willingness by Alito with what Judge Kelly has
“opined” upon - that which finds as much significance in the RNC case as does
the Roe v. Wade considerations. The RNC case is dealing with a “coup d’scar” on
the U.S. Capitol, forget about abortion! So no one should get too excited about
this “leak”, as that document was circulated by Alito back in February, so
Judge Kelly’s “memorandum” will dissect the “High Court” and what you see is
not what you will get - as thou shall not…
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