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zataomm  4mo ago (text post)   5333 thread views

Colorado Supreme Court Thread

Link to the decision

I don't know to what extent there are established precedents for when a topic is worthy of a mega-thread, but this decision seems like a big deal to me with a lot to discuss, so I'm putting this thread here as a place for discussion. If nobody agrees then I guess they just won't comment.

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Newsweek reports that we have more volunteers:

Republican lawmakers in three swing states have announced their plan to remove President Joe Biden from their state ballots.

Aaron Bernstine of the Pennsylvania House of Representatives, Cory McGarr of the Arizona House of Representatives and Charlice Byrd of the Georgia House of Representatives released a joint statement on Thursday announcing their plan to remove Biden from the 2024 general election ballots in those three states.

While their letter says that they plan to or are in the process to "introduce legislation", it's not clear from a quick search if they've done so, or even what that legislation would look like, nor how it would, in their words, "allow ALL candidates to be on the ballot in all states". It's far from obvious that they could get legislation through their respective legislatures within the necessary time period before the general election, or even at all: of the three states, only Georgia has a Republican governor, and it's unlikely Kemp will jump onto this particular grenade. The trio don't even have a particularly coherent theory for why and what disqualifying specific act applies.

So this is grift, and a publicity stunt, and dumber.

On the other hand, unlike Colorado or California, all three are states that matter: there are election models that treat them as swing states, not background temperature and a joke. It's a good thing that a lot of people talking about fucking with ballots hasn't caused problems in recent years, and that there aren't far-more-dangerous attacks that these games make more prominent.

nor how it would, in their words, "allow ALL candidates to be on the ballot in all states"

Presumably some sort of tripwire where the law amounts to "if you deny Trump we deny all Democrats, but if you back down we will too". Of course, this depends on the Democrats both having an overall-unfavourable result from tripping it and being sufficiently pragmatic to back down, which seems unlikely.

It would also depend on their proposed law not getting invalidated or stayed near-instantly, while the Trump disqualification didn't apply. Which isn't a huge possibility band, but it's a lot wider than the chance of their law lasting once past.

Fucking hell. I saw @IGI-111’s comment, and thought about saying “that’s ridiculous, there’s no fig leaf for disqualifying Biden.” Then I remembered the fig leaf never really mattered. But I wasn’t expecting volunteers so fast.

Is this about Hunter? No, it’s about “insurrection” at the southern border. That doesn’t even make sense. At least if they’d have to pass legislation, it means they don’t have a Colorado-style process for removal, I guess.

I continue to be disappointed that no one involved in this election is going to face real consequences for their grandstanding, up until the point where the whole edifice collapses.

I have some for your reading pleasure.

Biden supported and gave encouragement to BLM riots which among other things included CHAZ.

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.

Biden conspired with others in the Obama administration to frustrate the peaceful transmission of power to the Trump administration from by trying to sabotage that admin via the bureaucracy including Biden suggesting trying to trap Flynn using the laughable Logan act (has some similarity to Trump — sure in theory he was exercising what is facially a legal authority but the local authority could say that was pretext).

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.

There's a lot of detail about that June of 2021 concurrence that you're glossing over, here.

This is the concurrence in its entirety:

JUSTICE KAVANAUGH, concurring. I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium. See Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014). Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court’s stay of its order. See Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1305 (1991) (Scalia, J., in chambers) (stay depends in part on balance of equities); Coleman v. Paccar Inc., 424 U. S. 1301, 1304 (1976) (Rehnquist, J., in chambers). In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.

... to be more explicit.

JUSTICE THOMAS, JUSTICE ALITO, JUSTICE GORSUCH, and JUSTICE BARRETT would grant the application.

So what? What is your point?

At the risk of tl;dr'ing an old effortpost:

  • With a very small number of exceptions not relevant here, it is unconstitutional for the federal government to act ultra vires.

  • ((There are also separate due process, takings clause, and procedural reasons it was also unconstitutional, raised by the AAR plaintiffs, which are fairly compelling; these are also unconstitutional, if not the central focus.))

  • Biden should have known that the attempt would be rejected in the courts, and made clear that he was running this policy to exploit the time period for the justice system to react. There's some fun philosophical questions about whether he genuinely believed Lawrence Tribe in the same way that Trump might have 'genuinely' believed Dominion conspiracy theories, and both of them are politicians with brains made of playdoh. But by any meaningful definition of the word "knew", he knew both that it was unconstitutional and would be found unconstitutional.

  • The balance of equities for a stay overwhelmingly favors a government actor over economic interests of private individuals. This is often hilariously misguided -- the refusal to recognize financial costs under the premise they'd be renumerated after a successful completion of a case a sick joke -- but the only one that seriously recognizes and favors the interests of AAR was the likelihood of success on the merits.

  • Worse, Biden should have known that he only got the time he did from SCOTUS because, and I quote the justice giving the deciding vote: "the CDC plans to end the moratorium in only a few weeks, on July 31". The Biden administration stated this, explicitly! Nice letterhead, official paperwork, everything, June 24th.

  • And then on August 4th, decided fuck it, we're doing it anyway. Pretty literally: when I said the final order had its serial numbers filed off, I wasn't exaggerating.

Yes, I get it, you had a conversation with someone at the time where you nitpicked into oblivion how the Supreme Court technically never issued an order to the federal government. If someone had said that Biden had defied an explicit order from the Supreme Court, you might even have a point. But instead, you're trying to nitpick:

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."

He knew, by any degree of knowledge that can resist a schizophrenic in a crappy suit. His advisors told him -- he lost Tushnet -- and that one advisor said the opposite is no defense when Guiliani was trying it. SCOTUS said it was illegal, if perhaps taking a slightest bit of effort to read the tea leaves. And Biden said fuck it.

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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.

6-3 is what we would expect to be the worst outcome a democrat could get. Maybe 7-2 if they put something the kraken tier in front of the justices, but two judges are dem partisan hacks with room temperature IQs and one of them understands her job well enough, and that it’s to explain how the democrats’ agenda is what the constitution really means, no matter how you have to torture the words.

Obama was overruled 9-0 in Noel Canning, including by both justices he appointed.

That's fair, but in turn it seems like an argument in favor of hydroacetylene's claims: while the 9-0 ruling did go against Obama, it was far less aggressive than conservatives argued in the concurrence, or that the lower court held.

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).

I'll give you the other 5, but c'mon. Alito is absolutely a partisan hack.

What is your evidence for that claim?

I'm not going to go through every example of it, but the man just obviously talks and thinks like a politician, all the time. Eg, The simplest difference involves respect for precedent: Justice Thomas "gives less weight to stare decisis than a lot of other justices." It is, "in its way, a virtue of his jurisprudence," Justice Alito says. "He sticks to his guns." . . . The disadvantage of this approach, Justice Alito says, "is that you drop out of the conversation, and . . . lose your ability to help to shape what comes next in the application of that rule."

Look at Alito's reasoning here. It is not legal reasoning. It's political reasoning. He's not saying "this is what the law demands" or "it's important to follow consistent principles". He's saying "this is how to maximise your own influence". And he constantly says things like this.

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If your claim is that eg Alito or ACB has goals other than consistent jurisprudence, I won’t disagree with you, but Roberts and Gorsuch slap down republicans frequently enough in a way that dem appointees never do to their side that it’s fair to say republicans don’t have a majority of partisan hacks.

I will continue to hold that Ketanji Jackson Brown is a partisan hack whose jurisprudential philosophy is ‘anything the DNC says is right, one of their words will overcome 10,000 of the constitution’s’ in the absence of evidence of a semi-consistent philosophy. You don’t really see that on the republican’s side; Thomas has disagreements with con inc and is more than willing to slap the hand of Republican administrations. There aren’t 6 judges that back blatantly illegal moves by Republican admins; you sometimes see one or two, but not the same two.

If your claim is that eg Alito or ACB has goals other than consistent jurisprudence

My claim is literally the exact opposite.

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.

The obvious counter-argument there is a claim that partisan justices gonna' partisan, and the breakdown has no bearing on frivolity as opposed to politics.

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?

Yeah, none of those things count. I don’t think Watergate would have counted, and that was leading a government arm in actual crimes against Americans. Trump’s stunt may or may not have counted, but without a conviction or even a criminal charge, there’s no way.

Yeah, none of those things count.

The text of the Fourteenth Amendment specifies "insurrection or rebellion against" the Constitution of the United States. Conspiring (within the Executive Branch) to issue orders that violate its plain textual explicit separation of powers (which SCOTUS ruled those orders did) sounds at least as plausibly in violation as Trump "raising an army."

(Although this would probably effectively rule out any incumbent president running for re-election, to which I probably say yeschad.jpg)

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.

This is exactly my point. In fact, I think the case against Biden is cleaner in that the eviction order was one of the most brazen “I know it’s illegal but I don’t care” moves done in decades.

Trump may very well believe that laws were broken and therefore his action on Jan 6 was actually consistent with his oath to take care that the laws are faithfully executed. Biden has no such excuse.

Trump’s stunt didn’t either. The constitutional provision was pretty clear that it was referring to raising an army and starting a war, not a badly planned protest that turned into a riot which may or may not have been a coup attempt.

Those are to my mind the same category as J6. Why do you think they are different or don’t count?

The sad part is they couldn't even find a good "insurrection" to allege. Hunter Biden's dealings with China? Come on. Can't they argue that Biden in some way encouraged the protesters who block traffic to fight climate change? Or the people who graffiti'd the Lincoln memorial in support of Palestine? Everybody hates those guys, why not go ahead an call it an insurrection?

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.

Look, obviously, I agree that it’s ridiculous, but I like that it has a parallel to Trump’s encouraging the mob who rioted at the capitol. Could one of the people held up in traffic have been a government official on their way to an important meeting? So the protesters were interfering with a government function.

If you want to bring an example, you’d be better off talking about the Hatfield courthouse.

But these politicians don’t want a good example; this is the same ‘highlight the contradictions’ approach from a lot of other movements, without the sympathetic media or academic facade

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.

Yes, good call, I was confusing the criminal cases about interference with the current case.

Because those would be mutually disqualifying.

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