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zataomm  11mo ago (text post)   5751 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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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.

I had this argument at the time. I was arguing what you said (more eloquently compared to what I said). But it was quite clear that the court was acting in the way of a court of equity allowing a wrong to be orderly stopped as opposed to creating chaos. Then, Biden acting in bad faith to try to exploit a gap. Unique to my knowledge in this kind of bad faith flouting of the constitutional order.

Your own link re ultra vires states that it refers to govt acting outside of constitutional powers, not to acting outside its statutory powers. Obviously the former raises constitutional claims, not the latter.

And as for nitpicking, OP made a claim of the administration acting "outside the constitutional order," which is silly. Refusing to comply with a court order is acting outside the constitutional order; pursuing policy which will probably be held illegal and stopping when ordered to do so isn’t. It is SOP. You are engaging in special pleading.

SOP, you say? I'll admit I wasn't quite as plugged into the social justice fandom at the time, what with tumblr upsie-wupsie a fucky-wusky, and I couldn't (and can't) stand dealing with the non-transcript version of a Trump speech. Still, would have expected to hear about Trump getting to enforce a Muslim ban for a couple weeks after a SCOTUS order made clear he was going to flunk the likelihood-of-success, giving a long series of public pronouncements about how he couldn't do it, telling SCOTUS he would expire and not renew the ban, and then just doing it again.

But you've used it as an SOP example. Got a link?

I'm sorry, "pursuing policy which will probably be held illegal and stopping when ordered to do so" isn't my complaint, nor anyone else's complaint, and you know it.

I'm sorry, "pursuing policy which will probably be held illegal and stopping when ordered to do so" isn't my complaint, nor anyone else's complaint, and you know it.

That is precisely OP's complaint, because that is what happened.

Edit:

Still, would have expected to hear about Trump getting to enforce a Muslim ban

The Biden Admin did precisely what the Trump Administration did: It promulgated a narrower rule in an effort to save it.

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.

But what does that have to do with being partisan? His point is that Thomas, by being very willing to throw out precedent, ends up being ineffective as a justice. Like it or not, the ability to influence other justices, and thereby influence majority opinions, is a big part of the job. You say that Alito's reasoning is political, not legal, but the internal deliberations of the Court are partly political, in the broad sense. If including "all deliberate speed" in Brown was necessary . But that is not the norm. You are singling out Alito for behavior that all the justices engage in. Moreover, that kind of behavior is often necessary in order to do what you think the law demands in the long run, because judge-made law is nothing but slippery slopes. See, eg, the de facto abandonment of the Lemon test.

I thought that was obvious enough to not need stating. He is a partisan hack because he reliably finds his way to the GOP-aligned position every time, and he's flexible about how he gets there.

I guess I don’t understand why you are saying that, when I specifically asked what evidence you have for that exact claim. No offense, but it sounds like you don’t have any.

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?

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