“A man who has never gone to school may steal from a freight car, but if he has a university education, he may steal the whole railroad.” –Theodore Roosevelt
MISSOURI’s Andrew Bailey saga and why we should care: Likely you’ve read about rogue GOP states’ attempts to overthrow the U.S. Constitution. Still, since January, Missouri’s Attorney General Andrew Bailey has led an onslaught of some of the most aggressive anti-trans and LGBTQ+ bills in the nation. Even a sitting Missouri state senator named Mike Moon (Yes, that’s the same dude who thinks it’s entirely proper to marry off 12-year-olds) went so far as to imply that “We should round up trans folks and put them into conversion therapy centers.” While that caught the attention of Missourians from across our state, it didn’t get the attention it should have.
The even bigger story that caught the most attention didn’t come from the Missouri legislative body. Instead, it came from the Office of the Attorney General under the direction of a complete despot named Andrew Bailey. The emergency rule that Attorney General Bailey took it upon himself to impose on folks specifically targeted both trans children and adults alike by putting an immediate halt to access to their medical care throughout the state.
His unilateral decision to restrict access to healthcare spurred a lawsuit by the advocacy group Lambda Legal and Missouri’s ACLU for blatant abuse of power and a massive infraction on Civil Rights. No public hearings or testimonies were permitted that could have allowed folks to attend or write the Missouri Office of the Attorney General about why they opposed his rule. But aside from the topic of the lawsuit itself, the issue that needs the attention of people everywhere in the method and mechanism Bailey chose to pursue his political ambitions: the “ISL” theory.
ISL is the abbreviation forIndependent State Legislature Theory). It’s a (kind a legal) radicalized theory that allows a state legislature to have two separate ways for a state to do whatever it wants.
- ISL declares a state can decide how the Electoral College should work.
- ISL allows state legislatures to make up the election rules as they go for congressional districts, making gerrymandering much easier and legal to do.
You can see why these are problematic, e.g., any national voting standards could be abandoned, resulting in rogue states deliberately designing both districts and voting standards that cut people out who disagree with their legislatures.
ISL would make it easier for any political party to make a massive power grab and overthrow an election. The genuinely nasty part comes from removing the Separation of Powers in Article I of the Constitution through the court systems. Undoubtedly, the theory is one BIG RED “DANGER” SIGN regarding our democracy. But most folks are still missing the “devil in the details” of this theory.
Many assume that ISL theory only serves one purpose: To screw up and legit-rig elections for a power grab from a political party. But, like most legal theories, ISL — should it be accepted as legal, could be applied to any argument that pertains to where the federal and state powers’ come into play when the right “word salad” is used for the idea — kind of like the “Originalists’ Theory” works now.
The “Orginalists’ Theory” has been used in various cases ranging from Dred Scott to Heller vs. D.C. to the recent fall of Roe vs. Wade. But unlike ISL (because it’s so much more radical), the Originalists’ Theory is recognized and has stood by the courts as a legitimate case argument; ISL does not have to stand in the courts.
The fact that the Courts do not recognize ISL returns us to Bailey and his despotism nonsense that has been laughed out of court and sent packing back to Jefferson City.
You might think, “Well, I don’t see the alarm, so why should I care?”
Consider how Bailey tried to apply a part of ISL theory by jumping court jurisdictions to fast-track his case to the Supreme Court. Hypothetically, had the federal judge sided with his arguments, it would have set a precedent of going straight to the federal courts to deal with state issues instead of letting the states handle their problems. This would have created a massive constitutional crisis through the Separation of Powers. True, it’s Missouri, and creating a Constitutional crisis seems to be our jam, but this would have opened the door for other GOP-controlled states to follow in the same suit, making a mess the U.S. hasn’t seen since the South decided it needed to be its own “country.”
Bailey’s antic was to “test the waters” to see what he and his party could get away with; in time, getting ISL theory (or at least a part of it) legitimized by a court of law would wreak havoc on the entire nation. Bailey’s goal was to seize control and hold us all hostage.
Sure, folks might think this piece is active or alarmist sounding, but it is not. The ISL theory is another weaponized theory that the GOP has used to attack the courts for years. To do so, GOP weapons have included using the appointments of activist judges and idiotic and frivolous lawsuits. All are slowly edging their way in for the power grab of our justice system. The current Supreme Court is a prime example of my discussion. SCOTUS — Supreme Court of the United States, was once considered a prestigious force of authority, but now it’s more or less a “Banana Republic” filled with partisan activists and corrupt justices that the GOP plans to get ISL theory in front of — whether the case deals with the elections itself or another adjacent topic where this theory can be applied.
While the federal judge brutally smacked Bailey down, the attempt could be enough to encourage other GOP Attorney Generals to try the same as they work together to overwhelm the SCOTUS. For now, ISL theory is just an unrecognized theory, but the SCOTUS ruling on the “Moore vs. Harper” case is coming up; hopefully, ISL will remain unnoticed by the courts despite Missouri having earned early status as a mini “Banana Republic.”
So far, so good; the SCOTUS doesn’t seem keen on this theory (which, for better or worse) is a blessing at the end of the day.
As for Mr. Andrew Bailey — his emergency rule was put on ice by a state judge who ordered that the case remains in state courts, putting a damper on Bailey’s ambitions. So we Missourians can breathe a little, or at least until the next genius of the supermajority in the Missouri Legislature gets another wild hair to try to bypass the U.S. Constitution again.
In short, these coordinated attacks on the court system through deceptive and super confusing “legal” Despotism try to take on the Constitution.