“May you live in interesting times and People in High Places know your name.”
Ancient Chinese Curse
After listening to the Oral arguments before SCOTUS last week and listening to more legal scholars and talking heads than I care to remember I’d like to share my take away from “Trump vs. Anderson”. First off I want to make clear that I feel that this is going to be both a critically and historically important case. A case that will be thought in both history classes and in law classes in times to come. Also I am sure ever Justice on the Court believes this too. This is a ground breaking case and the only questions we have to face is who’s ground gets broken and what happens next.
My first take is I agree with the vast majority of the Scholars and talking heads, SCOTUS is going to over turn the case. I don’t have a clue on just how the will reason this nor what the vote is going to be. An I’m not brave enough to make a guess either. I also feel that no mater how they rule the Justices are in for a long hard few of years ahead. What I’m going to do here is talk about just one question facing them. If they rule such that no state can prevent a person from being on the ballot(s) of that state that does not meet the qualifications for being President or Vice President then just who and when are the requirements going to be inforced?
First question: Can the Congress pass a law on who can be on their ballot(s) (Either Primary or General). How can this law be constitutional when the Constitution give the several States sole rights on how their Presidential Electors are selected? If it is constitutional who actually enforces the Law, which agency of the Federal Government has the job (or who would want it)?
Second question: If the States do have the right to control the selection of their Presidential Electors can the State(s) at the time the electors gather at the appropriate designated place can the State(s) legislature disqualify all votes for the candidate who fails to met the qualifications? If they can, then who do they select as electors? Or do they just not send any electors at all?
Third question: If the several States do select and send electors for a person who does not met the qualifications for President/Vice President and accept their votes does the Congress have the right and/or duty to reject those votes when the votes are counted? Sub question, is the vote only not counted for the person who does not qualify? Would this not lead to the situation where we get the President disqualified and the Vice President who is qualified? Does he/she automation move up to the Presidency ?
Fourth question: If we get to the point where a person who fails to met the qualifications to be President is about to be sworn in what does the Chef Justice do? Does he/she actually administer the oath of Office?
Fifth question: If a person who does not met the qualifications for President is swarm in would he/she not be libel for immediate Impeachment?
See the problem? No matter what SCOTUS has some very interesting times a head and many many people in high places know all their names.
Will wonders never cease? I woke up in time to listen to the live broadcast of the SCOTUS hearing on the Colorado case removing Donald J. Trump from the primary ballot. I got a lot of questions but I’m not going to go into them now as I’m sure most if not all will be both brought up by the “Talking Heads” in the days to come and also addressed by the courts ruling. No, what I’m going to deal with a question that has not even been addressed out loud yet. That question is:
“If the court rules that the several states can not enforce the qualifications to hold office before a person is elected when and who does enforce them?” Let me set up the hypothetical for you here:
A person who will not be 35 at the time of being sworn in, when I who says he/she can not be sworn in? Is it done when the electors of the several states are approved by the state legislatures? Is it done when the elector collage votes are counted by Congress? Or is it when he/she steps up to take their oath of office (and who does this)? See the problem?
Now it is possible for the Court to say that this is the responsibility of the Congress. But what do we do if the Congress does not act. The current House of Representatives does not fill me with confidence. What does congress do if it gets conflicting Elector ballots? If he/she is not allowed to take office, who does? The Vice President? The Speaker of the House? Who?
See the problem, no mater what the Court does we are in for some very hard times, some much much harder than others. Only time and the Court will tell.
The coming months are going to be very interesting for us court watchers. SCOTUS has at least two and possibly more critical cases coming before it. Some of them are also time critical. Some will allow the court to demonstrate that they really do believe in the judicial/constitutional philosophy thus exposed in recent and controversial decisions.
On the last point, the Colorado case (Anderson v. Griswold) removing Trump from the primary ballot seems to be the most likely case in point. In several recent decisions the court has used both the “Originalist” and “Textualist” doctrines to justify their rulings. The “Textualist” doctrine gives the court the best course to rule against Trump and the “Originalist” gives them two ways to rule one for Trump and one against.
Now let me state right here I do not expect SCOTUS to use any of these paths. I fully expect the court to find some way to totally dodge the issue, most likely using some arcane procedural reasoning. This court all too often has shown itself to have the backbone of a slug. That said let’s dive into the issues as I see them.
The “Textualist” ruling deals almost exclusively with the 14th Amendment and its 3rd Section, probably one of the most overlooked clauses of the Constitution. The only real issue is whether the President is an “Officer” of the United States. Given both the customs of the time and the debate on the Amendment it is clear that the President is an “Officer” of the United States. Let us totally bypass the illogic of saying that the only two offices that “Insurrectionist” could hold are the two highest offices in the nation. We are, after all talking about the “Radical” Republicans of the post Civil War and given the detailed list of the offices it is not reasonable to hold that the offices of President and Vice President are excluded.
This now lead us into one of the more interesting arguments “Originalist” reading can give us. Does the Amendment apply to all insurrectionists, past, present, and/or future? It can be argued that the “Insurrection” being referred to by the Amendment was the Civil War and it only applies to that one “Insurrection”. If that is the case then section 3 is a dead letter as the last surviving vet of the war died over 50 years ago. Unfortunately this kind of “Originalist” reading of the Constitution leads down a very twisty road as how do we deal with the following.
Given the above interpretation of how “Originalist” doctrine is would be applied, the 1st Amendment protection of free speech can only apply to the spoken or printed word. So it would not apply to Radio/TV/Movies as these Media did not exist nor even imaged when the amendment was written. The same for the Second Amendment, it could only apply to those kind of “Arms” that existed at the time of writing. To be fair we can say it would apply to modern ships and cannons but not to aircraft or spacecraft. I can see arguments both ways for submarines.
I shall leave you with just this point, these are just two of the problems facing SCOTUS using the “Originalist” doctrine in one case currently before it. The are several more now before it and I’m sure more to come in the near future. So keep your ears open and your head down it is going to get very very interesting.
With the Indictment of Donald J Trump last week and the first of the formal court proceedings (aka reading the charges) we are now entering what is the next phase of our Sheldon Crisis. We are now nearing one of the major crux of this crisis, I hope. In the next year or so we can expect to see one or more things happen, and I am taking this time to list the ones I see right now.
Trump is not convicted.
This can happen in several ways. First and most unlikely is that the Prosecution does an incredibly bad job and/or the Defense does an incredibly good job. As I said, not likely but it has happened in the past.
Next, a still unlikely the defense is able to convince at lest one juror to vote for acquittal . This would end up in a hung jury and most likely lead to a new trial. So the defense needs to get the presiding judge to declare the miss-trial with ’prejudice’.
What I think the defense is trying for is to get the presiding judge to throw out most if not all of the evidence of what Trump is accused of. This is very hard to do and timing will be everything. If at all possible these ruling(s) need to take place so that the prosecution has little or no time to appeal.
Trump is convicted
Now let’s get to the dangerous part. The trial runs its course and Trump is convicted on one or more counts. Now what happens?
Almost assuredly Trump appeals all the way up to the Supreme Court and it has one of several things it can do.
First it could just not hear the case. This could be the best for the Court if the lower court throws out the conviction. But if the conviction is still standing when SCOTUS hears it then the court still has several things it can do. The best for the court would be to put the case on what is sometimes called the ’Merit Docket’ hear all the arguments and then make it’s ruling. Unfortunately this case is the political hot potato of hot potatoes and this court has not shown itself to be willing to take on this kind of case in the ’Merit Docket’ To many people will see just who is a loyal MAGA who isn’t.
SCOTUS could also decide to take the case on what is called the ’Shadow Docket’. This is attractive in that it is done all behind closed doors and without any of the justices putting their name on the ruling. In fact no reasoning needs to be given. SCOTUS could just rule that the case is overturned with prejudice and say nothing else. The one major problem with doing this is that what ever the prestige SCOTUS has with the general public will take a very big hit.
Well my computer is now overheating with running all the Sheldon Equations so I’ll say good by for now.
By now most of you have heard more than you care to hear on the ‘Leaked’ draft opinion that will over turn Roe v. Wade of the upcoming . An before you ask, no I haven’t read it yet, it is over 90 pages long and as you all know I’m a painfully slow reader. So what I’m working from is what has been quoted in new reports. Also this is just a draft, not the actual option.
First off, if this opinion actually does over turn Roe v. Wade I think it will be one of the biggest mistakes made by the Conservative Movement has ever made. Even greater than letting Donald J. Trump get elected. Just from the morning news this one act is motivating not only the Left but also the independent voters. This is both direct and personal to many voters who rarely pay any attention to midterm elections. These are the voters that MAGA/Conservative Movement want to stay home Election Day so their motivated voters will control who gets elected. An give the traditional small turn out for midterms it will not take a lot of fence sitters to have a big effect.
Winning the “Right to Life” (more on that in my next posting) could be the worst thing to happen to the GOP.
With the news that the Gov. of California is thinking of using the Texas anti-abortion law as a blue print for an anti-assault gun law I’ve heard from several sources the idea that SCOTUS will be faced with the problem of how to up hold one while striking down the other. While it maybe a little difficult anyone who has studied the history of the court knows this will not be the first time SCOTUS has faced this problem. I, for one, see this as a golden opportunity for the ‘Textulests’ and ‘Originalist’ of constitutional legal theory. Both of these philosophies have a fundamental aversion to the concept of “Implied Rights”.
Before we dive deeper let me give you my understanding of “Implied Rights” as it deals with the Constitution. For me there are basically two kinds of “Implied Rights”. In both cases the right is not enumerated, stated explicitly, in the text of the constitution. The first kind of “Implied Right” is of the kind that if the right didn’t exist, then an stated right would be functional meaningless. A good example of this is the “Implied Right” to have a vote counted. The right to vote assumes that once a vote is cast it will be counted, otherwise the casting of the vote has no reason to be. The next “Implied Right” is much more nebulous. This is the right of liberty in our person. This is the right that is at issue with ‘Roe vs. Wade’. The right to liberty is not expressly stated in the constitution.
The closest the Constitution gets to granting the right to Liberty is in the Preamble where is states the Constitution is established to “Secure the Blessings of Liberty.” The inalienable rights are given in the Declaration of Independence, not the Constitution. An while SCOTUS has stated the Declaration is part of our fundamental national law the Constitution takes no note of it. In my view to exclude the Declaration would make a mockery of the Constitution, it is quite possible for some future court to do that. So where does that leave us with the new Texas legal theory?
Just this: the Texas law deals with an “Implied Right” and the proposed California law deals with an enumerated right (the Second Amendment). All SCOTUS needs to do is find some reasoning that says that “Implied Rights” don’t get the same degree of protection, if any, as “Enumerated Rights”. This would be a very interesting slippery slope to go down an I invite you, my dear reader, to think upon all of your ‘Rights” that an just an “Implied Right” and not explicitly stated in the Constitution.
The Sheldon Crisis the U.S. is currently experiencing is going into it’s next faze today with the first of the Donald Trump Impeachment inquiry by the House Judiciary Committee. An it did not go well for anybody. While the supporters of Pres. Trump seem to have won on points this is only round one of the match. There are many more rounds to go and maybe a few more matches.
As a person who watched much of the Senate Watergate Hearings and the most all of the House Impeachment process Of Pres. Nixon. I also followed closely all the sordid process of the Clinton Impeachment and trial. I can say that today was not a good start. I hope the chairman and the House leadership rethink just how this process needs to work. Or, just maybe we all are missing something. This is more than just a legal process, there is a lot of politics involved.
Things just might get more interesting as time goes on. The House GOP seems to have won the day today with the witness standing his ground and refusing to say anything that is not in the testimony given in the Mueller Report. I just wonder if the GOP really want’s to go down this road to the Prerogative State. The use of Executive Privilege as done by the current Administration is quite expansive and would easily lead to no one who has anything to do with the Executive branch ever having to testify about anything to any body.
Let’s run a little thought experiment here. Let us suppose that no one who has any contact with the President, either directly or indirectly can not be forced by either the Congress or the Courts to give any testimony about anything the President may know, or could have know, or should have known or does not know. Ever! Now let us suppose the Executive Branch acts to confiscate all arms not in the possession of their party membership. An now let us suppose that it is taken to court and SCOTUS rules against the Administration and then the President orders the agency/persons charged to ignore the court order and they do? Now lets say the Court orders the arrest of those persons for criminal contempt and sends US Deputy Marshals to do it and these marshals are met with armed resistance by Federal security officers. Now what?
This is, of course a bad to worse case scenario. We don’t have to go this far to be in trouble. What would happen in the case of absolutely blatant corruption, like the Tea Pot Dome scandal but involving a siting Secretary. If the President could order all witness’ not to testify how could the House and Senate Impeach and Convict? How could you even try some one? Could not the President order the forensic witness and the investigators not to testify about their findings?
I think we can see where the unfettered use of any privilege can lead to. Privilege needs to be highly limited to keep it from being abused. We may live in the 2nd Guided Age and if we do it is paramount for the citizenry to flex it’s mussels and reign in the excesses of this age. The time to start is now. This election. Each an everyone of us needs to look at our Representatives, both House and Senate and see if they are putting Self or Party before the people and the country. To do that we need to stop listening to the Hate Mongers who want to tells that all are troubles are do to ‘THEM’. We must remember who we are and what we stand for. We are Americans and we Stand for more than just wealth, power, and prestige.
A great deal has been written the past few days over just what and why Alabama passed such a draconian anti-abortion law. Mostly they all agree that it is to make a test case for the Supreme Court to over turn Roe vs Wade. An this may well be the case, but I think the Alabama Legislative may just have gone a bit to overboard in their enthusiasm. I see a way for the court to dodge the issue of abortion entirely and still overturn the law.
The Alabama law makes it illegal for a person (aka woman) to travel out side of the state to get an abortion. This one little clause. The first that came to mind was the ‘full faith and credits’ clause of the Constitution. Later, as I started writing this post in occurred to me that it also violates the right of any Citizen of the United States to freely travel between states with-out hindrance (with a few notable exceptions for convicted felons). Here are your citations: Full faith and Credit see Article IV Section 1. Right of movement see link.
SCOTUS could, or even a lower court could, declare the law unconstitutional on either one or both grounds and never even look at the issues of Roe v Wade. It is quite possible SCOTUS will not even hear the case if the appeals court rules the law unconstitutional on theses grounds. They could just let the lower court ruling stand.
To my way of thinking this is the end this law deserves. It is a bad law, badly written, badly intended, and was never intend to work except as a ‘cause celeb’ of the anti-abortion movement.
Let me quite clear at the start; I am NOT a Legal scholar, nor a Jurist or Justice, nor even an attorney or lawyer. I am just a dedicated student of the both the Law, the Constitution and it’s history. I do take no little pride in having been this for almost 50 years now. Because of this I feel I can, with some trepidation put my two cents in. I also look forward to anyone who is any of those things I said I wasn’t above to jump in an correct any error or misstatements I make here. That said……
Given what the ‘new’ Attorney General Barr has said this week along with other persons in the Administration have said about turning over Pres. Trumps federal tax returns I am going to do something I haven’t done since November 2016. I’m going to make a prediction about what is going to happen politically. But first a little back story: 48 years ago when I started my study of the law (Business Law 101) on of the things Professor McNutt drilled into our heads was that words in the law often had very firm definition and usage. He started with two of the most, according to him, miss read words in the law. They are “will” and “shall”. I will not bother with all he told us about “will” as it is the word “Shall” that is going to be making all the news.
My prediction is this, that the IRS and/or the Treasury Dept. will refuse to supply the requested Tax returns of President Trump on one or mer grounds. The first, and I think most obvious, is that the Congress has no ‘ legitimate’ legislative purpose for see the documents. The second is that do to the separation of powers the law in question( 26 US Code 6103) can not be applied to the President. There maybe more but my knowledge of the subject is not great enough for me to venture deeper. Also just these two are more than enough to give SCOTUS a very severe case of heart burn.
I’m not going to even attempt to guess how the Court will rule, I’ll only say that both are set with many pitfalls and the Court is facing the real possibility of writing a decision to rival ‘Dread Scot’. As for myself I would like to see how things would evolve if the Court Rules that there are some laws that can not be applied to the President just because s/he is the President. Just what an author of apocalyptic SF needs to fill in the back story. I can just see it now, none of the executive branch needs to follow any of the laws passed by Congress because of the doctrine of the. Unitary Executive and no law can be applied to the President because of separations of powers.
I’m now going to make my prediction: it will take anywhere from 9 to 12 months for all of the challenges to the demand of the Congress to work it’s way up to the SCOTUS and the court will not issue anything till the last minute. I expect and hope the court will say Pres. Trump must comply and I expect Pres. Trump to stonewall it just like Pres. Andrew Jackson did. This would then give the House an actual impeachable act but not enough time before the election to actually impeach the President before the election.
Thought Experiment Time:
It is Wednesday 4 Nov 2020 and one of the following things has happened:
Donald Trump has lost the election
Donald Trump has won. The GOP has retaken the House and kept the Senate.
Donald Trump has won. The Dems have kept the house and the GOP has kept the Senate
Donald Trump has won and the Dems have taken both houses of Congress.