Congressman Jamie Raskin of Maryland has cred that few others in Congress can match, as he was a con law prawf at American University for 25 years before he won office. He must know things, right? So when Raskin opines on the Constitution, people take him seriously. And Rep. Raskin says that the generally-accepted-view that there is nothing to be done about Congress imposing an ethics code on the Supreme Court is wrong.

Everyone assumes that nothing can be done about the recusal situation because the highest court in the land has the lowest ethical standards — no binding ethics code or process outside of personal reflection. Each justice decides for him- or herself whether he or she can be impartial.

Okay, this doesn’t reflect a rational argument in opposition, but it was a nifty turn of phrase. Raskin goes on.

The U.S. Department of Justice — including the U.S. attorney for the District of Columbia, an appointed U.S. special counsel and the solicitor general, all of whom were involved in different ways in the criminal prosecutions underlying these cases and are opposing Mr. Trump’s constitutional and statutory claims — can petition the other seven justices to require Justices Alito and Thomas to recuse themselves not as a matter of grace but as a matter of law.

The Justice Department and Attorney General Merrick Garland can invoke two powerful textual authorities for this motion: the Constitution of the United States, specifically the due process clause, and the federal statute mandating judicial disqualification for questionable impartiality, 28 U.S.C. Section 455.

In other words, they can ask the other justices on the Supreme Court to . . . do something? Granted, there is a strong due process component to having a fair and impartial justice sit in judgment, but that doesn’t mean that one group of justices has any authority to tell another that they’re off the case. There is obviously no process for such a petition, although that doesn’t preclude the attorney general from making up his own form of petition and having it sent over  to the Court. The problem is what would the justices do with it when it got there?

As for 28 USC § 455, relating to the disqualification of judges and justices when their impartiality can reasonably be questions, Raskin makes a strong case that it’s applicable on its terms to the Supreme Court, since there are no justices to be found elsewhere in the federal judiciary. Where the argument unravels, however, is that he neglects to take note of the fact that the judicial branch of government, consisting of the Supreme Court and whatever lower courts Congress may create, is co-equal to Congress.

The Constitution, and the federal laws under it, is the “supreme law of the land,” and the recusal statute explicitly treats Supreme Court justices like other judges[.]

See how he tries to shoe-horn “federal laws under it” into the mix, as if laws enacted by Congress are the same thing as the Constitution. Laws carry weight as to pretty much everyone in government, but they do not enable one branch of government to tie the hands of another.

This recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is. The Supreme Court cannot disregard this law just because it directly affects one or two of its justices. Ignoring it would trespass on the constitutional separation of powers because the justices would essentially be saying that they have the power to override a congressional command.

Curiously, Raskin argues the a co-equal branch of government would “trespass on the constitutional separation of powers” by not subjecting itself to Congress’ command. While Congress is not without the power to affect the Court, whether by paying salaries to justices, determining the number of justices to sit on the Court (the Constitution only requires a Chief Justice, without any particular number of associate justices), or respecting the Supreme Court’s authority to determine whether its “commands” are constitutional or not, nowhere in the Constitution does it state that Congress gets to command whether another constitutional officer is empowered to perform his constitutional duty.

Even if there were a mandate requiring Supreme Court justices to adhere to a Code of Ethics, which no reasonable person could argue against since no one wants an unethical justice sitting on the Court, there remains the ancillary problem of how it could happen, there being no mechanism by which to charge, investigate and determine whether an ethical lapse occurred. But that is downstream from the solution argued by Raskin, that whether a justice is ethical or not, violates due process by lacking impartiality or not, it is not Congress’ “command” that matters, save for one instance.

If representatives in the House decide that a justice has gone rogue, the Constitution provides for a remedy. Impeachment. Beyond that, Raskin’s cred as a former con law prawf isn’t good enough to carry his argument up the hill.