SCOTUS news and opinions

[Klaus Hergersheimer]

Forgive me, but: if an insurrection did not take place within their jurisdiction, then who are states to say whether it happened or not?
I find it difficult to believe that the authorities in Colorado did not ask themselves this...

 

[Gorbles]

Forgive me, but: if an insurrection did not take place within their jurisdiction, then who are states to say whether it happened or not?
I find it difficult to believe that the authorities in Colorado did not ask themselves this...

I believe we have this fancy new technology called "eyeballs", been around a little while.

Are you suggesting that lawyers employed at the state level magically lack qualifications and knowledge to comment on events happening out-of-state?

 

[Klaus Hergersheimer]

They can see whatever they want, it doesn't give them an airtight case: the provocation of riots and those riots happened in Washington DC, not Colorado; Colorado authorities don't get to choose (or disqualify) who represents their state in DC if that's who voters choose.

Similarly I think anyone with eyes should have predicted how the ruling would go on this one, because the alternative would have been a patchwork mess of states disallowing people to appear on ballots for federal offices. And basically for any reason that the deniers wanted to come up with. Perhaps this will force more people to the realization that, if you don't want someone to be president then don't vote for them, rather than relying on some deus ex machina...

 

[Gorbles]

They can see whatever they want, it doesn't give them an airtight case: the provocation of riots and those riots happened in Washington DC, not Colorado; Colorado authorities don't get to choose (or disqualify) who represents their state in DC if that's who voters choose.

"state authorities don't get to choose who represents their state" is a different set of words, with a different meaning, to "who are states to say whether it happened or not".

 

[Birdjaguar]

The SCOTUS decision only applies to federal elections. States can remove people from state election positions. NM kicked a capitol insurrectionists from office in NM for his actions in DC.

 

[amadeus]

Not even Congress necessarily, but would this not also fall under the purview of the Electoral College? Going back in history, which still has legal relevance today, voters where they could vote (some early elections had their electors chosen by the state legislatures) cast votes for slates of electors rather than a direct election. By removing “Trump” from the ballot, the state court is actually removing electors who may not have themselves done anything wrong.

 

[innonimatu]

Oh the US is not going to do civil war. Good for you there.

 

[EgonSpengler]

Barrett joins liberal justices on Trump ballot ban ruling going too far

Former President Trump pulled out an unanimous victory at the Supreme Court on Monday in his historic ballot ban case that invoked the 14th Amendment, but a 5-4 division among the justices emerged …

thehill.com

Conservative Justice Amy Coney Barrett and the court’s three liberals criticized their five conservative colleagues for going further than they needed to in resolving Trump’s case by also determining that the only way for the 14th Amendment to be enforced is through a statute by Congress.

“This suit was brought by Colorado voters under state law in state court. It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced,” Barrett, Trump’s last appointee to the high court, wrote in a concurring opinion.

 

[Sommerswerd]

Barrett joins liberal justices on Trump ballot ban ruling going too far

Former President Trump pulled out an unanimous victory at the Supreme Court on Monday in his historic ballot ban case that invoked the 14th Amendment, but a 5-4 division among the justices emerged …

thehill.com

Again, they could have dissented... but they just wanted to reach a consensus/unanimous ruling so badly that they went with "concurring" opinions instead of dissents. They were focusing on the main result, which is Trump staying on the ballot and all the disqualifications in different states being disallowed. But in doing so, they let the majority actually create a new rule that they disagreed with, which is going to be completely dysfunctional and unusable going forward.

Consider that if Trump won, and then the Democrats got a majority in both houses in the midterms... a pretty feasible occurrence for the party that loses the Presidential election... the SCOTUS has explicitly ruled that only Congress can disqualify based on the 14th Amendment. So how that would work, is they would have to pass legislation disqualifying him from office... which of course, as POTUS, he would veto... meaning they would have to get a 2/3 majority to override his veto... the same 2/3 majority they couldn't get to convict/remove him in the Impeachment trial.

Another (of many) absurd implication(s) of this ruling... If for example the DOJ were to charge and convict Trump of insurrection in federal Court, the Federal Court would not be able to disqualify him from office, because now the SCOTUS has ruled that only Congress can do so. So even being convicted of insurrection wouldn't be sufficient to disqualify someone.

Oh the US is not going to do civil war. Good for you there.

I don't think that SCOTUS disqualifying Trump would have started a Civil War, especially if they disqualified him right now. The more explosive issue would be Congress acting to disqualify him after he won the election. I do suspect that if Trump loses this election, we are going to have another insurrection, although it might not be at the US Capitol building again.

 

[Gori the Grey]

Consider that if Trump won, and then the Democrats got a majority in both houses in the midterms... a pretty feasible occurrence for the party that loses the Presidential election... the SCOTUS has explicitly ruled that only Congress can disqualify based on the 14th Amendment. So how that would work, is they would have to pass legislation disqualifying him from office... which of course, as POTUS, he would veto... meaning they would have to get a 2/3 majority to override his veto... the same 2/3 majority they couldn't get to convict/remove him in the Impeachment trial.

But what I've been playing out in my mind is the flip side of that:

I wonder if what the majority did rule, that it's in Congress' purview, lends itself to something as simple as this.

For the sake of this thought experiment, put the filibuster out of consideration. If the Ds somehow nudged ahead of the Rs in the House, could they pass legislation simply saying "The assault on the Capitol on January the 6th 2021 was an insurrection, and should be treated so for all intensive purposes." (sorry, this time I couldn't help myself). Also pass Senate. Biden signs it.

Have they ruled that Congress can set up a process for determining insurrection, or can actually just flat-out declare a particular incident an insurrection?

although it might not be at the US Capitol building again.

But remember what that gave him, or at least what he was hoping it would give him: exert violence at one very focused spot and occasion. Create enough hubbub to just generally put everything in doubt, leave the election process in an unfinished state. Stay in the White House, and just say, "I'm setting up a commission to look into all of these confusing facts." That was his play. I don't know that any other stage of the process is equally vulnerable. Maybe the day the electors take their vote?

they let

Well, didn't have the numbers to stop.

 

[Lexicus]

But what I've been playing out in my mind is the flip side of that:

I wonder if what the majority did rule, that it's in Congress' purview, lends itself to something as simple as this.

For the sake of this thought experiment, put the filibuster out of consideration. If the Ds somehow nudged ahead of the Rs in the House, could they pass legislation simply saying "The assault on the Capitol on January the 6th 2021 was an insurrection, and should be treated so for all intensive purposes." (sorry, this time I couldn't help myself). Also pass Senate. Biden signs it.

Have they ruled that Congress can set up a process for determining insurrection, or can actually just flat-out declare a particular incident an insurrection?


But remember what that gave him, or at least what he was hoping it would give him: exert violence at one very focused spot and occasion. Create enough hubbub to just generally put everything in doubt, leave the election process in an unfinished state. Stay in the White House, and just say, "I'm setting up a commission to look into all of these confusing facts." That was his play. I don't know that any other stage of the process is equally vulnerable. Maybe the day the electors take their vote?



Well, didn't have the numbers to stop.

A further thought on this @Sommerswerd my guess is if Congress passed legislation declaring Trump an insurrectionist SCOTUS would strike it down as a bill of attainder.

 

[Gori the Grey]

I meant to add that to my post, in this format:

SC: It takes Congress to establish that an insurrection has happened
Congress: (in my hypothetical example): Ok, J6 was an insurrection.
SC: Not like that.

 

[ls612]

I meant to add that to my post, in this format:

SC: It takes Congress to establish that an insurrection has happened
Congress: (in my hypothetical example): Ok, J6 was an insurrection.
SC: Not like that.

As a practical matter this seems unlikely. Remember on J6 the number of republicans willing to object to the count was far less than a majority. And Democrats don't even have a majority in the house as it stands. I don't foresee any "reverse J6" nonsense occurring.

 

[Gori the Grey]

Yes, it references my previous post, which acknowledged the unlikeliness; it's a thought experiment.

 

[amadeus]

He wasn’t already acquitted by the Senate?

 

[Gori the Grey]

That has nothing to do with this thought experiment, amadeus.

Separately from impeachment, Congress now has the power to indicate how somebody might be disqualified from holding office under Amendment 14, section 3 of the Constitution.

 

[Sommerswerd]

That has nothing to do with this thought experiment, amadeus.

Separately from impeachment, Congress now has the power to indicate how somebody might be disqualified from holding office under Amendment 14, section 3 of the Constitution.

They always had that power, per the plain language of section 5. The difference is that now, Congress is the only governmental entity which has that power.

And as @Lexicus notes, the SCOTUS may have, at least arguably, with this ruling, created an otherwise Unconstitutional power. But as you @Gori the Grey note, what they may have done instead, is create a Constitutional glitch/exploit, whereby Congress is unable to create legislation to enforce, what only Congress has the power to enforce, via legislation.

Its a bad ruling, in terms of long-term precedent. Its a great ruling, for getting the SCOTUS out of the hot-seat in this particular election, which seems to be what they are prioritizing.

 

[Arakhor]

"Only Congress may hold the president to account for insurrection... by passing a law that the president can veto."

I thought SCOTUS firmly opposed the idea that the president has unqualified immunity.

 

[Gori the Grey]

They always had that power, per the plain language of section 5. The difference is that now, Congress is the only governmental entity which has that power.

Yes, well put.

 

[Klaus Hergersheimer]

The Court is not really there to craft law, despite what some want us to believe. The question was whether Colorado should do what it was doing or not. A yes or a no. I happen to think not.
This simply creates more of an incentive for Congress to have better requirements for who can be US president, like maybe having a criminal background check.