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Christian Mott@cjmott.bsky.social |
187 followers 430 following 178 posts
Moral psychology & experimental jurisprudence. Interested in mental state attributions, risk, punishment, personal identity, statistics, the Federal Arbitration Act, consumer protection law, common law constitutionalism, etc., etc., etc. christianmott.com
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Christian Mott
@cjmott.bsky.social
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Baude's podcast is even more revealing on this point. He criticizes the immunity decision on originalist but not consequentialist grounds. He also suggests that prosecuting Trump for the insurrection was unlikely to make a difference to the election or to any president's behavior. Roberts may agree.
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Christian Mott
@cjmott.bsky.social
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The best arguments against proportional representation seem to be: (1) no one wants that many members of Reform UK in the Commons and (2) every election would ultimately come down to the Lib Dems (maybe plus a regional party / the Greens) deciding whether Tories or Labour get to form the government.
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Christian Mott
@cjmott.bsky.social
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Tories will need help with that one.
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Christian Mott
@cjmott.bsky.social
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Particularly dumb because even if not voting is permissible because of its minimal causal effect, publishing this piece, which might encourage many people not to vote, is not. (Also, this article is just a repackaging of arguments made, and countered, much better elsewhere.)
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Christian Mott
@cjmott.bsky.social
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PredictIt has been extremely volatile today. It now has Biden back in the lead for the Democratic nomination.
Worth reflecting that back in 2012, there was some evidence of a well-resourced bettor intentionally moving prediction markets to benefit a preferred candidate: slate.com/news-and-pol...
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Christian Mott
@cjmott.bsky.social
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Sorry, that only referenced the House passing the bill. Here's the story on the Senate passing it too: ohiocapitaljournal.com/2024/05/31/o...
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Christian Mott
@cjmott.bsky.social
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Ohio passed a legislative extension of the nominating deadline at the end of May: abcnews.go.com/Politics/ohi...
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Christian Mott
@cjmott.bsky.social
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If this were the UK, we'd soon find out that most of these bets were placed by Biden's staff.
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Christian Mott
@cjmott.bsky.social
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The most disturbing part of the Court's opinion is not the abstract rules or categories it sets out, a version of which might even make sense (if their scope were clarified and the presumption weakened). It is the application of those rules and categories to the facts of this case.
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Christian Mott
@cjmott.bsky.social
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Why? We generally punish attempts to stop people from trying to cause harms over and over until they succeed. But for most crimes, the success is punishable too. That is not true here due to the nature of the harm. A President who successfully retains power unlawfully will never receive punishment.
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Christian Mott
@cjmott.bsky.social
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Everyone is doing presidential immunity hypos right now, since the Court's ruling is so unclear, but the most disturbing application of the new immunity regime is to the Trump case itself: An attempted autogolpe by a sitting President. This is the single most important crime to deter.
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Christian Mott
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The difference is that before the ruling, it was an open question whether the President could be convicted for issuing pardons as part of a criminal plan. This ruling holds that he cannot and that any evidence that he issued the pardons in order to carry out a criminal conspiracy is inadmissible.
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Christian Mott
@cjmott.bsky.social
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(I know that you know all this. Just adding this point for non-lawyer readers.)
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Christian Mott
@cjmott.bsky.social
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Strictly speaking, you can get a writ of habeas corpus by showing that there is no legal basis for detention, which does not require showing an improper motive. But that means your liberty will depend on whether the President's lawyers can come up with any legitimate reason. Cf. Trump v. Hawaii.
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Christian Mott
@cjmott.bsky.social
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Given that an audit is, in substance, an investigation of a potential legal violation, it is hard to see how directing a baseless audit could fall into a different category than directing a baseless DOJ investigation for the purposes of immunity.
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Christian Mott
@cjmott.bsky.social
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Spiking the ball is only really a celebration if everyone can see.
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Christian Mott
@cjmott.bsky.social
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(As an aside, it would be deeply funny if the emanations and penumbras of the Third Amendment ended up being the reason the President couldn't use SEAL Team Six to assassinate his political rivals -- at least while they're in the US.)
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Christian Mott
@cjmott.bsky.social
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The Court seems to buy the unitary executive theory, so it would likely say that the war powers do contain an unregulable core, which precludes prosecutions related to things like the Abbottabad raid. But there may be a domestic vs. foreign distinction on what falls in the core, as Jackson suggested
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Christian Mott
@cjmott.bsky.social
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This paragraph raises a confusing issue: The absolute immunity applies to the President's "core constitutional powers." That seems to mean those powers Congress cannot regulate by statute. But it remains unsettled where that line is for war powers -- it's unclear if the WPR is constitutional!
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Christian Mott
@cjmott.bsky.social
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I take the SEAL Team Six example to function not as an example of a case where the ability to prosecute has a high practical importance (in part, for the reasons you give) but as a reductio ad absurdum of the Court's test.
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Christian Mott
@cjmott.bsky.social
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I think we agree: The ruling at most changes the President's potential criminal exposure for that behavior. That still seems significant to me.
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Christian Mott
@cjmott.bsky.social
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The potentially new ground broken by yesterday's opinion on this point is the holding that the President himself cannot be prosecuted for using the pardon power to commit a crime (in this example, as part of a conspiracy to commit murder).
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Christian Mott
@cjmott.bsky.social
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But it quite clearly gives the President immunity for promising to pardon and then pardoning the members of SEAL Team Six, even though the pardons are offered and granted as part of a conspiracy to commit murder.
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Christian Mott
@cjmott.bsky.social
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It is certainly the case that some laws in technical areas are vague or ambiguous and the agency has been selecting between available meanings in rulemakings informed by scientific experts. Under the new scheme, courts would take those decisions away from the experts. Idk if that affects airplanes.
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Christian Mott
@cjmott.bsky.social
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This is my understanding as well (though my admin law class was also years ago). Chevron addresses whether statutory vagueness or ambiguity is an implied delegation. It does not address explicit delegations. (Though some justices would like to undermine those through the non-delegation doctrine.)
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Christian Mott
@cjmott.bsky.social
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The actions underlying Clinton's impeachment probably would not be immune.
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Christian Mott
@cjmott.bsky.social
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Directing audits of certain justices, which would otherwise violate 26 USC 7217. (Note that the justices would probably find a reason to say that this one wasn't immune.)
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Christian Mott
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Pressuring the AG to start an Espionage Act investigation against a journalist sure sounds like an official act under the Supreme Court's test. And if it was motivated by the President's desire to retaliate against that journalist for a prior critical article? That would be irrelevant.
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Christian Mott
@cjmott.bsky.social
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Directing an audit would ordinarily be illegal under 26 USC 7217, which explicitly names the President, so one might think that it is therefore not within the President's core powers. But the criminal laws cannot define those powers or the DOJ portion of this case would have come out the other way.
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Christian Mott
@cjmott.bsky.social
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If I'm understanding correctly, Trump would be immune from prosecution if, with the intent to interfere with people's constitutional rights, he promised to audit everyone who donated to Biden and then, on assuming office, ordered the IRS to do so and promised pardons to everyone who participated.
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Christian Mott
@cjmott.bsky.social
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With Menendez at trial, Democrats are effectively down one senator. Manchin has already said he would not vote for any judicial nominee that didn't also have one Republican vote. In other words, Democrats could not confirm replacements on a party-line vote.
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Christian Mott
@cjmott.bsky.social
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Trump can't prosecute Biden, but Trump also cannot be subject to civil or criminal liability for issuing an order for military/federal law enforcement to hold Biden without cause based on some trumped up national security justification. It seems that would fall into the absolute immunity bucket.
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Christian Mott
@cjmott.bsky.social
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In honor of Justice Thomas's recent birthday, the Court is working hard to make the "barges off GITMO" a reality.
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Christian Mott
@cjmott.bsky.social
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I hope I'm wrong. (And I hope I have the chance to find out that I'm wrong.)
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Christian Mott
@cjmott.bsky.social
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I read the Court to suggest that the Trump January 6th case must be limited to the fake electors scheme. Pressuring DOJ to launch a fake investigation? Out. Pressuring Pence to reject the certification? Most likely out. The speech on January 6th? Probably out. All out both as charges and as evidence
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Christian Mott
@cjmott.bsky.social
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Except that decision would be immediately appealable and the trial would once again be stayed for several rounds of appellate review. (Barrett addresses this point explicitly.) A court motivated to prevent a trial before the election couldn't have done more -- though we mustn't inquire into motives
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Christian Mott
@cjmott.bsky.social
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The Supreme Court's immunity decision is much worse than expected in substance. Procedurally, it is about as bad as expected: The additional rulings required from the district court and inevitable appeals therefrom will ensure that Trump is not tried before the election.
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Christian Mott
@cjmott.bsky.social
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Still on the syllabus, but I am very much looking forward to the "teach the Fifth Circuit how the First Amendment works" section of the opinion.
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Christian Mott
@cjmott.bsky.social
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Thank God -- Kagan has NetChoice. Perhaps Alito lost the opinion. His concurrence in the judgment may provide some clues.
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Christian Mott
@cjmott.bsky.social
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This decision means, for instance, that if the Alliance for Hippocratic Medicine can find a plaintiff with standing, they can challenge the original approval of mifepristone -- which happened in 2000 -- at any time.
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Christian Mott
@cjmott.bsky.social
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Not sure what's worse: The outcome of Corner Post, which will ensure there's always a vehicle for the Court to strike down any regulation they don't like at any time, no matter how long ago it was promulgated, or the fact that Barrett has the opinion, which suggests that Alito has NetChoice.
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Christian Mott
@cjmott.bsky.social
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8(?). Create a Supreme Court of Appeals that can hear cases on certiorari from the current CoAs and state supreme courts. Federal judges are designated to this court on 18-year terms. Current Supreme Court can only grant cert from the new Supreme Court of Appeals and it requires a unanimous vote.
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Christian Mott
@cjmott.bsky.social
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Pages 130-140 of the SCOTUS Commission Report contain a pretty good discussion of three different ways to do this by statute, including the option you mention, and whether they would be constitutional: www.whitehouse.gov/wp-content/u...
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Christian Mott
@cjmott.bsky.social
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This is an exceedingly thin reed, but this exchange during the Trump v. United States argument made me think Gorsuch did not have Fischer:
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Christian Mott
@cjmott.bsky.social
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For April, Jackson needs an opinion (unless you think she had EMTALA), and at oral argument it seemed unlikely the liberals were going to win in Grants Pass. That suggests: Gorsuch - Grants Pass Jackson - Fischer
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Christian Mott
@cjmott.bsky.social
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Time for a mea culpa: Separate opinions in DIGs are more common that I'd thought:
www.supremecourt.gov/opinions/21p...
www.scotusblog.com/case-files/c...
www.scotusblog.com/case-files/c...
www.oyez.org/cases/2002/0...
This one even had a short majority explanation: www.oyez.org/cases/2006/0...
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Christian Mott
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With DIGs, the modern practice is not to issue a majority opinion beyond saying the writ was dismissed. (Though I have now learned, after to an earlier error on my part, that this was not always the practice.) Many long separate opinions like this are also somewhat unusual in this context.
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Christian Mott
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Freaked out at the public attention... in an election year. Several of the opinions, including the DIG (if true), make it easy for the Court to rule differently in a future case raising the same or similar issues. Even Rahimi is written quite narrowly. (Expect a different lineup in 922(g)(1) cases.)
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Christian Mott
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Ok, this new article suggests that there are indeed concurring and dissenting opinions to this (maybe?) DIG: news.bloomberglaw.com/us-law-week/...
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Christian Mott
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Note that in the past when justices have dissented from DIGs, they also haven't issued full opinions. In this case, Sotomayor dissented from the DIG: www.supremecourt.gov/opinions/21p...
Though I haven't done a fully canvass of all DIGs, so there may be cases where full dissents were filed.
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