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this post was submitted on 29 Dec 2023
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Politics
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The irony here is that Trump and the Republicans worked really hard to stack the SCOTUS with originalists, because that tends to play well with a conservative Republican agenda.
But it also upholds the Insurrection Act. Remember that SCOTUS may be conservative, but they’re not all Republican lackeys. In order to decree this unconstitutional, SCOTUS would have to make a majority decision that what Trump did doesn’t fall under insurrection. I can see them wanting to stay out of THAT one completely, refusing to make a finding that would create SCOTUS precedent; that means they would leave these decisions in place in order to preserve future flexibility.
No, they wouldn't. They would just have to accept a due process argument, essentially that the opinion of a CO state judge is not the appropriate venue or process for determining if someone is an insurrectionist. Probably calling for either Congress or criminal courts to establish that.
This is notably different than the CSA, as CSA officers were openly and publicly members of an organization that openly and publicly waged a war against the US.
What do you call storming an election certification and killing a cop?