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zataomm  11mo ago (text post)   5749 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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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.

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