USSC decisions

I don't want to go down rehashing the 2000 election but there was time to do a recount and certify the electors even with a court recount. The "safe harbor provision" wasn't something that had been applied as in previous elections other states had submitted electors past the date of the safe harbor. Also as we saw with this last election there is the step of certifying electors by Congress almost a month later that would've still given FL a chance to get their electors in.

The FL Supreme court is a coequal branch of FL's government and my understanding is that the FL legislature has laws that allow the FL Supreme court to decide issues regarding elections so they have been empowered in that regard especially when the Legislature hadn't specifically acted.

It doesn't say that the only action Congress can take to suppress an insurrection is calling out the militia. The comma in the sentence structure doesn't limit Congress to just calling out the militia but that in addition to calling out the militia and suppressing an insurrection.

What is the statue of limitations regarding an investigation of an insurrection?

 

The Constitution doesn't say the state courts can establish the rules of elections, it says the state legislature does. Whatever you think of Bush v. Gore and if it was correctly or wrongly decided, there is nothing in the text of the United States Constitution that the majority ignored.

The section is a list. There are two possible interpretations to the list:
1. Congress can call out the militia, and these are the three things for which the militia can be used: enforce the laws of the Union, suppress an insurrection, repel and invasion.
2. Congress can call out the militia to enforce the laws of the Union. Congress can suppress an insurrection. Congress can repel an invasion.
Option two has a few hundred elected representatives personally fighting off a foreign invasion or suppressing an insurrection. We don't read statutes to have absurd results when the plain meaning is perfectly clear.

It is irrelevant, because it applies to the executive branch. The DOJ is investigating the January 6 riot. Congress has no role in it.

 

I didn't really study Bush v Gore much until last year, same for the ISL theory. I used to fall on the Thomas side of ISL interpretation of these debates when they first came up too. I didn't think the defense I most heard from the other side ("this is how the courts have interpreted it, like allowing people to make decisions through the initiative process") was strong. Lately though, I've come across the Amar brothers' paper (famous ConLaw scholars) who pretty well criticized ISL theory from an originalism perspective. Here are some main points that I've copied and pasted:

To me, it looks likes an order of operations argument combined with original understanding that many state constitutions allowed for state legislatures to be bound by initiatives at the founding. Like this section should be read to be understood that "state legislatures" making rules doesn't mean they can make any rule, only rules that don't violate their own state constitutions. Anyhow, it's an interesting read. Nerd stuff. Have a good day.

 

Where in the Constitution does it say that Child p*rnography is illegal? 1st Amendment made no mention of it.

Where in the Constitution does it say that Child Labor is illegal?

What about the *common* historical interpretation of that period? I'm pretty sure child labor was common. Child p*rn is probably very illegal but I haven't read into it.

If none of these are actually in the Constitution or *common* historical interpretation of that period, then why do Judges that follow originalism philosophy deem them unconstitutional (well, maybe not for Thomas but...)

 

I don't think any justice has ever said child p*rnography or child labor is constitutionally protected or constitutionally forbidden (though I have not really gone searching for such a case). They are not mentioned in the Constitution at all, and are outlawed by statute.

 

more on the locomotive case today:

https://www.scotusblog.com/2022/03/justices-search-for-the-line-on-use-of-a-locomotive/

excerpt:

Justice Clarence Thomas participated remotely, in his first argument back following his hospital stay last week, but was as active as ever. Thomas even offered a personal example to test the limits of Frederick’s and Sinzdak’s theories: When Thomas drives his motor coach across the country — as he is known to do during the court’s summer recess — he tows his car behind it. If the car’s brakes and lights still operate while being towed, Thomas asked, is the car in use? Frederick answered yes, emphasizing that, during the journey, no one else can put the car to use. But Thomas seemed unconvinced, explaining that “the point of the car is not to be hauled behind the motor home.”
​

more at the link

 

Sorry I missed this earlier but @Kim has answered this far more knowledgeably than I can. Just to reemphasize though in his response one point in the citation from his post.
"In fact, the meaning of state “legislature” was well accepted and bore a clear public understanding at the Founding: A state “legislature” was an entity created and constrained by its state constitution."
That pretty much sums up my thoughts.

Yes we don't read statutes to have absurd results and it's absurd to think that that section only limits Congress to calling out the militia or that individual Congress members have to fight an insurrection as the only means of suppressing an insurrection. Congress has other tools including the power to investigate and subpoena.

Again the plain structure of English a comma used in a list is an "and".

 

The 5 conservative didn't explain their reasoning. The 3 liberal + 1 conservative that dissented wrote why they dissented.

Supreme Court reinstates Trump-era water rule, for now - ABC News (go.com)

WASHINGTON -- The Supreme Court on Wednesday reinstated for now a Trump-era rule that curtails the power of states and Native American tribes to block pipelines and other energy projects that can pollute rivers, streams and other waterways.

In a decision that split the court 5-4, the justices agreed to halt a lower court judge’s order throwing out the rule. The high court's action does not interfere with the Biden administration's plan to rewrite the rule. Work on a revision has begun, but the administration has said a final rule is not expected until the spring of 2023. The Trump-era rule will remain in effect in the meantime.

The court’s three liberal justices and Chief Justice John Roberts dissented. The court’s other conservative justices, including three nominated by President Donald Trump, voted to reinstate the rule.

Writing for the dissenters, Justice Elena Kagan said the group of states and industry associations that had asked for the lower court's ruling to be put on hold had not shown the extraordinary circumstances necessary to grant that request.

Kagan said the group had failed to demonstrate their harm if the judge's decision were left in place. She said the group had not identified a “single project that a State has obstructed" in the months since the judge's decision and had twice delayed making a request, indicating it was not urgent.

Kagan said the court's majority had gone “astray” in granting the emergency petition and was misusing the process for dealing with such requests. That process is sometimes called the court's “shadow docket” because the court provides a decision quickly without the full briefing and argument. The liberal justices have recently been critical of its use.

As is typical, the justices in the majority did not explain their reasoning.

Kagan wrote that her colleagues' decision “renders the Court's emergency docket not for emergencies at all."


....


The section of federal law at issue in the case is Section 401 of the Clean Water Act. For decades, it had been the rule that a federal agency could not issue a license or permit to conduct any activity that could result in any discharge into navigable waters unless the affected state or tribe certified that the discharge was complied with the Clean Water Act and state law, or waived certification.

The Trump administration in 2020 curtailed that review power after complaints from Republicans in Congress and the fossil fuel industry that state officials had used the permitting process to stop new energy projects. The Trump administration said its actions would advance then-President Donald Trump’s goal to fast-track energy projects such as oil and natural gas pipelines.

States, Native American Tribes and environmental groups sued. Several mostly Republican-led states, a national trade association representing the oil and gas industry and others have intervened in the case to defend the Trump-era rule. The states involved in the case are: Arkansas, Louisiana, Mississippi, Missouri, Montana, West Virginia, Wyoming and Texas.

 

Rulings on applications for stay are not opinions decided on the merits. It is in the first paragraph of the image in the tweet. The stay is automatically lifted when the case is decided on the merits or if writ of certiorari is granted. It is not at all unusual for the court to handle many of these types of ministerial matters without issuing a written opinion. The court didn't repeal the clean water act. There was a district court ruling, that ruling is stayed pending appeal. This would have no effect beyond that. The rules remain in place.

No, it is not at all absurd to think that section limits Congress to calling out the militia, it is the militia clause. You are right that it is a list, but it is a list of things for which Congress can call out the militia.

 

No but what is different is the casual nature of issuing stays. Normally the court justifies issuing a stay on some sort of grounds. They're just issuing injunctions nowadays without explaining why.

To me this is just cowardly. If you're going to strike something down, just do it and give the legal justification why. Issuing stays at random is absolute judicial activism. That's nullifying laws (even if its temporarily) with no justification whatsoever. This is where the 6-3 majority really rears its head. No side ever had a majority for silently issuing rulings like this. Roberts clearly isn't a fan but he's now irrelevant with the extra conservative justice.

 

What's the emergency nature here that requires such a relief? There was none.

 

The text again:
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;"
It doesn't say "To suppress insurrections Congress can only call out the militia."

If we are to take your argument that limits Congress' ability to suppress an insurrection to callout the militia Congress couldn't have even deployed the Capital Hill Police on Jan. 6th as that force isn't a militia.

 

once again, your poor reading comprehension---reading what you want to read---manifests itself.

 

They are just not using an Oxford comma (which is why the Oxford comma is good, it provides clarity). With it, the sentence would read: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions. You already said it is a list of things:

What are the items that you believe are in the list? I gave you two possible interpretations, I would love to know what third option I am missing. Here are the two I came up with.
1. To provide for calling forth the Militia to:
a) execute the Laws of the Union
b) suppress insurrections
c) repel invasions.
This seems the most likely, as those are all things for which calling forth the Militia might be a good idea.
2. a) To provide for calling forth the Militia to execute the Laws of the Union
b) suppress insurrections (unrelated to the Militia)
c) repel invasions. (also unrelated to the Militia).
This interpretation seems more strained. Why would the first power give both the purpose and a very specific mechanism, but the other two powers just be purposes without any indication of how they are to be achieved? Congress can execute the Laws of the Union only with the Militia, but what can they do to suppress insurrections or repel invasions? Only use other enumerated powers? That wouldn't let them investigate, subpoena, etc. Act directly as 535 people? You already agreed that was absurd. Anything they want? Why bury it in the militia clause? Why provide Congress unlimited power in this one area when their power is circumscribed everywhere else? Further, there is already a power to raise an Army and a Navy and to declare war. Clearly Congress has other enumerated options to repel invasions at a minimum.

 

What does given aid and comfort means?

14a Section 3

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

 

I find it interesting for someone who argues for close reading of the Constitution you are arguing for reading more into it.

Further under this interpretation the Congress wouldn't have been able to use the Capitol PD to suppress an insurrection. The only means would've been calling the militia what I think we could agree would be absurd.