Do you plan to post this on r/supremecourt , I know you did in the past, but I'm not sure what their rules are. Also has anybody except Binkley noticed the quo warranto provision of DC code, I don't think either FSFP or CREW mentioned it (tho maybe someone reads this :p)? Could Biden (or Haley) ask for declaratory judgement, since the federal suits were tossed on standing?
In an ideal world, someone else would. Reddit welcomes links, and /r/supremecourt seems to have suspended its "all 14A posts in the megathread" rule in the wake of the decision, but Reddit frowns on self-promotional links, and I've done quite a bit of that in the past few months.
"Also has anybody except Binkley noticed the quo warranto provision of DC code"
I meant to check this last night! I have all the briefs indexed on my hard drive, so its simple enough to do an Agent Ransack search for "3501"...
Answer: nope, just Binkley!
"Could Biden (or Haley) ask for declaratory judgement, since the federal suits were tossed on standing?"
It seems that they would have standing, although talking them into it might not be too easy. The law seems sound here, but the politics are perhaps uninviting.
Don't both the quo warranto and Jan 6 objections run into section 3 of amdt 20? Also the this D.C. district opinion claims the circuit said only the attorney general would have standing? https://casetext.com/case/taitz-v-obama
EDIT: I missed you mentioning it at first read lol somehow
Does anyone know who would be the President if the Quo Warranto provision succeeds? Would Biden be the President or Trump’s VP? Because the latter will cause a lot of grumbling, but the former seems likely to start a civil war
Obviously this has never been litigated, but my read is that it's Trump's VP. The current electoral college process ensures that the VP is independently elected and therefore holds office independently of the President. Even if you can say that Trump never held office, that doesn't go back in time and give Biden a majority of the electoral votes cast, and the 20th Amendment repeatedly hammers home the idea that the VP gets the office in case of a serious problem with the qualification process.
This was an excellent question with a probably correct answer, and it reveals one problem (among many) with removing an insurrectionist president after the election. The VP of an insurrectionist might not have participated in insurrection themselves, but by virtue of mutual selection as running mates, the replacement president is almost certainly someone who will or would. Risk to the republic is not averted.
And of course, by virtue of the political necessity of supporting the candidate, the entire party goes down the same route.
Yeah. It's possible that, at a certain point, it becomes less about saving the republic from an insurrectionist, and more about spiting John Roberts for not letting the states save the republic from an insurrectionist.
John Roberts Must Suffer: a bipartisan platform everyone can agree with!
(EDIT: I posted this reply in the wrong thread initially! So if you get two email notifications, that's why.)
"The Framers did not envision a uniform national system for electing the President, and deliberately embraced a system that would admit a national patchwork of different elector selection methods"
But even then, the "patchwork" that the Amars argued for has much more far-reaching and devastating consequences than every States just having their own method to elect the president, or even even states having a completely different list of candidates on the ballot.
Because if states ends up removing a presidential candidate from the ballot because of the Section 3 of the 14th Amendment, it's because they ruled that said candidat is *constitutionally barred from holding office*.
So, let's say Colorado, Maine, Illinois, Oregon and other states remove Trump from the ballot for this reason. Trump end up winning enough electoral votes without them anyway. And then? What are these states supposed to do, are they supposed to accept that they're now ruled by someone that their own state supreme court deems illegitimate? Are they supposed to accept a president that, according to their own ruling, is holding office unconstitutionally ?
Do they dismiss his executive orders from now on? Do they become de jure secessionists?
First-rate question, very similar to one that Anderson's advocate flubbed at orals.
"What are these states supposed to do, are they supposed to accept that they're now ruled by someone that their own state supreme court deems illegitimate? Are they supposed to accept a president that, according to their own ruling, is holding office unconstitutionally?"
Bluntly, yes. As I tried to set out in "Saying the Magic Words," to bring about a legal effect, you need several things, and one of them is a cause of action. If the Electoral College and Congress choose to install an illegitimate president, a citizen or state can't (lawfully) simply refuse to recognize him. They need a legal cause of action that results in federal recognition of his illegitimacy -- something like the D.C. Code's quo warranto statute.
In practice, this would be a difficult line to walk; some judges might try their hand at #resistance without legal cause; some citizens might demand this; some citizens might even say that, since the Constitutional compact has in fact been breached (by installing an illegitimate President) the obligation to obey the Constitution is lifted. (That is, of course, secession talk straight outta the 1850s.) In practice, as the ship of state veers into increasingly dangerous waters, we seem to be finding ourselves walking a lot of difficult lines these days.
But states have power over their own ballots. They don't have power to nullify federal acts -- even overtly illegitimate ones.
...or, boating difficult lines. I dunno. I mixed my metaphors there.
Given the SCOTUS took a pass at barring Trump in the ballot while we were still in the primary election stage, why would any court, up to and including SCOTUS, want to use a quo warranto writ to remove a SITTING President? If they did that, that would be a recipe for the kind of civil war you envisioned back in August 2020.
Your point about how the Fourteenth Amendment provisions were treated by the courts, is well taken. But the Insurrection Clause has been dormant a lot longer than the Equal Protection or Due Process clauses.
I don't think they'd WANT to. I think the law would not give them a choice. SCOTUS here demanded that disqualification may only proceed through legislation passed by Congress. The legislation passed by Congress prescribes a quo warranto proceeding. I don't think they should have made this demand, but, since they've made this demand, it's like, "Alright Supreme Court, I ACCEPT YOUR TERMS."
I can't say for sure, but I think you're misreading Phil. He wasn't asking why they would use *that method*, he was asking why they would choose to *do it at all*. The bar has now been raised again. Removing Trump from *office* would be an even bigger deal than removing him from the ballot -- bigger enough that everyone who's been on board with the project so far will need to decide whether they're willing to continue.
You read my intent Zeke. With all due respect to our esteemed host, I think it's a pipe dream (a crack pipe, at that), to believe that an obscure law can "force" a court to do what it really, really doesn't want to do. In fact, we have seen that an obscure Constitutional provision can't force a court to take action it really, really doesn't want to do.
And SCOTUS really, really doesn't want to unleash what could only be called a Constitutional crisis, likely accompanied by violence.
You guys may be right! It may be the case that we should NOT take the Supreme Court at its word here, that we should interpret this as a *political* decision rather than a *legal* one, and that we should therefore assume that they will rebuff any future legal attack on Trump's legitimacy -- even an attack that follows the exact rules they lay out.
This poses a dilemma, though.
If we take them at their word, then we should proceed with the legal attack via quo warranto, because it's exactly what they asked for: a method for enforcing Section 3 that Congress has passed.
If we do not take them at their word, obviously we should not do that, because they will say no. But if we assume that the Court makes *political* judgments rather than legal ones... what good is it? Why should we have the Court at all?
If we assume that, then it seems to me that the answer is: obviously, we shouldn't! To paraphrase Flannery O'Connor: if it's political, to hell with it! The Supreme Court should be stripped of its independent status and its decisions, including constitutional decisions, made reviewable by Congress. Then, at least, its political judgments would be accountable to the People, rather than to the Georgetown cocktail set.
Thank you for the conclusion to the most thoughtful reporting I'm aware of on this case. It is with zero irony that I say this in response to a post with frequent depictions of Kermit freaking out. Kermit is correct.
Do you plan to post this on r/supremecourt , I know you did in the past, but I'm not sure what their rules are. Also has anybody except Binkley noticed the quo warranto provision of DC code, I don't think either FSFP or CREW mentioned it (tho maybe someone reads this :p)? Could Biden (or Haley) ask for declaratory judgement, since the federal suits were tossed on standing?
"Do you plan to post this on r/supremecourt"
In an ideal world, someone else would. Reddit welcomes links, and /r/supremecourt seems to have suspended its "all 14A posts in the megathread" rule in the wake of the decision, but Reddit frowns on self-promotional links, and I've done quite a bit of that in the past few months.
"Also has anybody except Binkley noticed the quo warranto provision of DC code"
I meant to check this last night! I have all the briefs indexed on my hard drive, so its simple enough to do an Agent Ransack search for "3501"...
Answer: nope, just Binkley!
"Could Biden (or Haley) ask for declaratory judgement, since the federal suits were tossed on standing?"
It seems that they would have standing, although talking them into it might not be too easy. The law seems sound here, but the politics are perhaps uninviting.
Don't both the quo warranto and Jan 6 objections run into section 3 of amdt 20? Also the this D.C. district opinion claims the circuit said only the attorney general would have standing? https://casetext.com/case/taitz-v-obama
EDIT: I missed you mentioning it at first read lol somehow
Very well written and argued!
Does anyone know who would be the President if the Quo Warranto provision succeeds? Would Biden be the President or Trump’s VP? Because the latter will cause a lot of grumbling, but the former seems likely to start a civil war
Obviously this has never been litigated, but my read is that it's Trump's VP. The current electoral college process ensures that the VP is independently elected and therefore holds office independently of the President. Even if you can say that Trump never held office, that doesn't go back in time and give Biden a majority of the electoral votes cast, and the 20th Amendment repeatedly hammers home the idea that the VP gets the office in case of a serious problem with the qualification process.
So say hello to President Kari Lake?
Or, is it likely to cause the election to go to the House?
I suppose that's possible!
This was an excellent question with a probably correct answer, and it reveals one problem (among many) with removing an insurrectionist president after the election. The VP of an insurrectionist might not have participated in insurrection themselves, but by virtue of mutual selection as running mates, the replacement president is almost certainly someone who will or would. Risk to the republic is not averted.
And of course, by virtue of the political necessity of supporting the candidate, the entire party goes down the same route.
Yeah. It's possible that, at a certain point, it becomes less about saving the republic from an insurrectionist, and more about spiting John Roberts for not letting the states save the republic from an insurrectionist.
John Roberts Must Suffer: a bipartisan platform everyone can agree with!
(EDIT: I posted this reply in the wrong thread initially! So if you get two email notifications, that's why.)
"The Framers did not envision a uniform national system for electing the President, and deliberately embraced a system that would admit a national patchwork of different elector selection methods"
But even then, the "patchwork" that the Amars argued for has much more far-reaching and devastating consequences than every States just having their own method to elect the president, or even even states having a completely different list of candidates on the ballot.
Because if states ends up removing a presidential candidate from the ballot because of the Section 3 of the 14th Amendment, it's because they ruled that said candidat is *constitutionally barred from holding office*.
So, let's say Colorado, Maine, Illinois, Oregon and other states remove Trump from the ballot for this reason. Trump end up winning enough electoral votes without them anyway. And then? What are these states supposed to do, are they supposed to accept that they're now ruled by someone that their own state supreme court deems illegitimate? Are they supposed to accept a president that, according to their own ruling, is holding office unconstitutionally ?
Do they dismiss his executive orders from now on? Do they become de jure secessionists?
First-rate question, very similar to one that Anderson's advocate flubbed at orals.
"What are these states supposed to do, are they supposed to accept that they're now ruled by someone that their own state supreme court deems illegitimate? Are they supposed to accept a president that, according to their own ruling, is holding office unconstitutionally?"
Bluntly, yes. As I tried to set out in "Saying the Magic Words," to bring about a legal effect, you need several things, and one of them is a cause of action. If the Electoral College and Congress choose to install an illegitimate president, a citizen or state can't (lawfully) simply refuse to recognize him. They need a legal cause of action that results in federal recognition of his illegitimacy -- something like the D.C. Code's quo warranto statute.
In practice, this would be a difficult line to walk; some judges might try their hand at #resistance without legal cause; some citizens might demand this; some citizens might even say that, since the Constitutional compact has in fact been breached (by installing an illegitimate President) the obligation to obey the Constitution is lifted. (That is, of course, secession talk straight outta the 1850s.) In practice, as the ship of state veers into increasingly dangerous waters, we seem to be finding ourselves walking a lot of difficult lines these days.
But states have power over their own ballots. They don't have power to nullify federal acts -- even overtly illegitimate ones.
...or, boating difficult lines. I dunno. I mixed my metaphors there.
Given the SCOTUS took a pass at barring Trump in the ballot while we were still in the primary election stage, why would any court, up to and including SCOTUS, want to use a quo warranto writ to remove a SITTING President? If they did that, that would be a recipe for the kind of civil war you envisioned back in August 2020.
Your point about how the Fourteenth Amendment provisions were treated by the courts, is well taken. But the Insurrection Clause has been dormant a lot longer than the Equal Protection or Due Process clauses.
I don't think they'd WANT to. I think the law would not give them a choice. SCOTUS here demanded that disqualification may only proceed through legislation passed by Congress. The legislation passed by Congress prescribes a quo warranto proceeding. I don't think they should have made this demand, but, since they've made this demand, it's like, "Alright Supreme Court, I ACCEPT YOUR TERMS."
I can't say for sure, but I think you're misreading Phil. He wasn't asking why they would use *that method*, he was asking why they would choose to *do it at all*. The bar has now been raised again. Removing Trump from *office* would be an even bigger deal than removing him from the ballot -- bigger enough that everyone who's been on board with the project so far will need to decide whether they're willing to continue.
You read my intent Zeke. With all due respect to our esteemed host, I think it's a pipe dream (a crack pipe, at that), to believe that an obscure law can "force" a court to do what it really, really doesn't want to do. In fact, we have seen that an obscure Constitutional provision can't force a court to take action it really, really doesn't want to do.
And SCOTUS really, really doesn't want to unleash what could only be called a Constitutional crisis, likely accompanied by violence.
You guys may be right! It may be the case that we should NOT take the Supreme Court at its word here, that we should interpret this as a *political* decision rather than a *legal* one, and that we should therefore assume that they will rebuff any future legal attack on Trump's legitimacy -- even an attack that follows the exact rules they lay out.
This poses a dilemma, though.
If we take them at their word, then we should proceed with the legal attack via quo warranto, because it's exactly what they asked for: a method for enforcing Section 3 that Congress has passed.
If we do not take them at their word, obviously we should not do that, because they will say no. But if we assume that the Court makes *political* judgments rather than legal ones... what good is it? Why should we have the Court at all?
If we assume that, then it seems to me that the answer is: obviously, we shouldn't! To paraphrase Flannery O'Connor: if it's political, to hell with it! The Supreme Court should be stripped of its independent status and its decisions, including constitutional decisions, made reviewable by Congress. Then, at least, its political judgments would be accountable to the People, rather than to the Georgetown cocktail set.
Thank you for the conclusion to the most thoughtful reporting I'm aware of on this case. It is with zero irony that I say this in response to a post with frequent depictions of Kermit freaking out. Kermit is correct.