Surely intent matters, which is why those are not parallel cases.
Edit: Moreover, the claim is that the protesters were attempting to prevent the winner of the election from taking power, hence at least arguably engaging in insurrection. They were not merely interfering with a govt function. I think you might be conflating the criminal charges with the 14th Amendment issue.
Gdanning
4mo ago
Lol. And if the members of the majority are partisan hacks? You do know that that is a common refrain from those on the other side, right? Here is a hot take for you: None of them is a partisan hack; rather, they have different jurisprudential philosophies (which is why they were chosen after all).
Gdanning
4mo ago
Depending on exactly where the posters are placed, you kind of do, given the First Amendment.
Gdanning
4mo ago
I believe "the same" refers back to "the United States", not to "the Constitution". It makes no sense to speak of rebellion against a constiution, and barely more sense to refer to giving aid and comfort to enemies of the Constitution. And of course the original public meaning of the clause was that it meant rebellion against the US.
I would note, however, that your interpretation would be very bad for Trump; given that the J6 rioters were attempting to stop a Constitutionally prescribed procedure, the argument that they were rebelling against the Constitution is stronger than the argument that they were rebelling against the US.
Gdanning
4mo ago
Seriously, encouraging blocking traffic is a more plausible "insurrection"?? They used Hunter presumably because the clause refers not only to insurrection, but also to those who have "given aid or comfort to the enemies" of the US.
Gdanning
4mo ago
Biden knew the renter moratorium was unconstitutional. His advisors told him as such. The SCOTUS said this is illegal but since you told us you are ending it we will let you end it in an orderly fashion. He then said “fuck it — I will extend it and hope it will take months or years to overturn what I knew was against the constitutional Order.
None of this is particularly correct. The Supreme Court initially ruled on the moratorium in July of 2021. But that was re the moratorium imposed the previous September, by the Trump Administration. And, as noted in the only opinion issued at that time, the concurrence by Kavanaugh, the argument was not that it was unconstitutional, but that "the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium."
More broadly, this is exactly how Presidents should behave: if they think a particular action is in the best interests of residents of the US, they should take that action, even if there are arguments, even strong ones, that the action might be overturned by the courts. Because unless there is existing binding precedent, the only way to know for sure is to get a final court decision on the merits (or, in this case, a preliminary injunction that is not stayed). That is exactly what Trump did re the "Muslim ban" -- as each iteration was struck down, the admin kept narrowing it until they came up with a version that withstood judicial scrutiny. There is nothing wrong with that.
The only exception is when the argument for legality is frivolous, which this one was not, given that the final vote in the Supreme Court was 6-3.
Gdanning
4mo ago
The dissent also says,
this is the only federal legislation in existence at this time to potentially enforce Section Three
My guess is that, because the statute provides for a criminal penalty and disqualification for public office, it might be a separate penalty as opposed to an implementation of the 14th A. The statute does seem broader than the 14th Amend, FWIW, since the 14th applies only to those who have taken an oath to support the Constitution, whereas the statute applies to all who engage in insurrection. Someone who violates the statute but who did not violate the 14th because he never took an oath can still be President, since the Constitution establishes the exclusive qualifications for the offices of President, Senator, Congressperson, etc (see cases annulling term limits on Congress).
Gdanning
4mo ago
Or are you saying
Again, I am not opining on the merits, but am merely referring to the claims made by the parties and judges. The quote is re an alternative argument raised by Trump (note its placement at the end of the section on self-execution, and after your original quote). And note this from one of the dissents:
My colleagues in the majority concede that there is currently no legislation enacted by Congress to enforce Section Three.
So, that is the claim of the majority. The majority does not argue, as you inferred they did, that states can establish a definitiin of insurrection different than that established by Congress.
Gdanning
4mo ago
Imagine Congress passes a law granting some benefit to Americans with disabilities, and furthermore establishes a Board to review cases and determine which people are entitled to the benefit, could a State really set up its own separate Board and establish its own criteria determining who is "disabled"?
But that is not what happened here. Here, Congress has not acted at all, and the issue is whether the bar is self-executing:
The Electors’ challenge to the Secretary’s ability to certify President Trump as a qualified candidate presumes that Section Three is “self-executing” in the sense that it is enforceable as a constitutional disqualification without implementing legislation from Congress
PS: Please note that I am not defending the decision. For both legal and policy reasons, IMHO no criminal conviction = no disqualification.
Gdanning
4mo ago
Imagine Congress passes a law granting some benefit to Americans with disabilities, and furthermore establishes a Board to review cases and determine which people are entitled to the benefit, could a State really set up its own separate Board and establish its own criteria determining who is "disabled"?
But, the whole point of the discussion you quote is that Congress hasn't acted. The issue is whether the disqualification clause is self-executing:
Intervenors, however, look to Section Five of the Fourteenth Amendment, which provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” to argue that congressional authorization is necessary for any enforcement of Section Three.
Gdanning
4mo ago
I don't know why you are talking about adding employees, rather than about adding residents, which is what the issue is.
Regardless, I that you are relying on a far more complex model than the one you initially posited, one which includes variables for the level of consumption for different types of consumers. So, apparently, common sense is not enough.
Gdanning
4mo ago
You are looking only at short-term effects. The studies look at more medium and long-term effects. Those immigrants do not just increase the labor supply; they also increase the demand for goodsm which in turn increases the demand for labor. That is why "complicated analysis," not mere "common sense" is necessary to evaluate the effect of immigration on the labor market.
Gdanning
4mo ago
- That specific language from Schenck remains good law. See, eg, Boim v. Fulton County School Dist., 494 F. 3d 978, 984 (11th Circuit 2007); Satawa v. Macomb County Road Com'n, 689 F. 3d 506,517 (6th Circuit 2012).
- Your entire criticism seems to be that they cited Schenck, but that is a meaningless claim,because the court clearly did not rely on Schenck.
- More importantly, I agree that their free speech analysis is incorrect, but not because they cited Schenck, and certainly not because they engaged in only a limited discussion of the issue, as you falsely implied.
Gdanning
4mo ago
-
As I said, " I am extremely skeptical that Trump's speech was not protected under the First Amendment, because incitement is a very narrow exception."
-
What level of scrutiny do you imagine that to be? OP's claim (which was that the First Amendment analysis by the court was superficial) does not pass even a minimal level of scrutiny.
Gdanning
4mo ago
I have given up prognosticating re what basis justices will rule on, but I am guessing that there wont be a single majority opinion. But of course the court might limit the issues presented from the get-go.
Gdanning
4mo ago
Right, 116-132.
Nevertheless, your implication that the Court gave short shrift to the First Amendment issue is, again, disingenuous.
Why is the citation to Schenck a low point? It is cited only for the principle of "the importance of context in holding that “the character of every act depends upon the circumstances in which it is done.” They didn't cite it for its holding. Courts do that all the time; hence the common explanatory note, "overruled on other grounds."
To be clear, I am extremely skeptical that Trump's speech was not protected under the First Amendment, because incitement is a very narrow exception (though I note that none of the dissenters raised that issue, unless I missed it). But your criticisms of the Colorado court's First Amendment analysis are completely unconvincing.
Gdanning
4mo ago
So it will be interesting to see what happens.
I am skeptical that the First Amendment analysis will survive; the bar is extremely high for incitement to riot.
Gdanning
4mo ago
If Colorado's legislature (or its sometimes-mouthpiece, the state court) says Trump can't be on the ballot, then Trump can't be on the ballot, and from a Constitutional standpoint, that's the end of the story.
That can't be right; if that were the case, the court would not have spent 16 pages addressing the claim that Trump cannot be removed from the ballot based on speech which is protected by the First Amendment.
Gdanning
4mo ago
Did the Colorado Supreme Court provide a more serious and deep analysis of the First Amendment jurisprudence, at least? "The district court also credited the testimony of Professor Peter Simi, a professor of sociology at Chapman University ...
The Court's discussion of the First Amendment issue runs from page 16 to page 32 of the opinion. I don’t know if that analysis is correct, but it is disingenuous to imply, as you do, that it nothing more than a citatiin to the testimony of a single witness.
Gdanning
4mo ago
No, they only forbid the topics more associated with Red tribe. The controversial Blue issues are a different story entirely.
I think you might want to follow the news out of places like Florida and Texas.
the Progress flag and the Christian cross would be equally acceptable on public display
A rather odd comparison, given that, unlike the Progress flag, the Christian cross is a religious symbol and hence its display on a classroom wall raises Establishment Clause issues.
Gdanning
4mo ago
You would not be confused about this if cop cars were decked out in trump gear.
That is a strawman. I already noted that schools do, and obviously should, forbid teachers from prosthletizing on controversial issues. OP is proposing going far beyond that, to banning ALL decorations -- that means family photos, sports and alumni banners, references to hobbies, you name it.
And, again, the issue is not whether a school that banned all decoratiin would be held to have violated the First Amendment. It is whether they should enact such a policy, regardless if whether they can get away with it.
Gdanning
4mo ago
We are talking about limiting the free expression rights of public employees in the workplace. That might not be the most weighty of civil liberties, but it is not zero. Whether the First Amendment protects that right under current jurisprudence is separate question.
Gdanning
4mo ago
We are talking about limiting the free expression rights of public employees in the workplace. That might not be the most weighty of civil liberties, but it is not zero. Whether the First Amendment protects that right under current jurisprudence is separate question.
Gdanning
4mo ago
But that is a different issue: A government is free to speak as it wishes, so it can place or remove its own monuments as it wishes. The question here is whether, if it opens a forum for outsiders to speak, it can permit some to speak but refuse to allow others to speak. From the Boston case:
The government must be able to decide what to say and what not to say when it states an opinion, speaks for the community, formulates policies, or implements programs. The boundary between government speech and private expression can blur when, as here, the government invites the people to participate in a program. In those situations, the Court conducts a holistic inquiry to determine whether the government intends to speak for itself or, rather, to regulate private expression.
Well, couldn't one therefore argue that the decision has no bearing on the validity of the law, either way? So, your argument clears Biden, does it not?
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