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To: OldDeckHand
To me, it's clear from everything I've read as either a student, or a practicing attorney... People seemingly wish to interpret this "failed to qualify" phrase as an invitation for an ex post facto judicial review over the results of an Electoral College election. When in fact, the Constitution specifically and singularly gives oversight of the Electoral College to the Legislative branch, not the Judiciary.

Well, you certainly redirect focus like a practiced attorney, I'll give you that much. Because, as you no doubt are aware, no one has ever asserted that the judiciary had, has, or should have the power to review an electoral college election, or claim oversight of such.

Instead, the issue has always been to find a judicial remedy for compelling the Congress to act according to the Constitution, should they fail to do so, and as they clearly have in the case of their lack of properly qualifying the president-elect before confirming his electoral election - you know, the one you declare to be legitimate because you saw it on TV.

So, as a practiced attorney well-versed in both Constitutional and statutory law, you are also aware that such a remedy has existed as the prerogative writ of mandamus in common law for centuries, and that this writ directly addresses such the issue actually being addressed by this thread.

Further, however, as a practiced attorney, you also know that the federal courts hearing these cases are sitting under administrative jurisdiction, rather in their common law capacity, and so are operating under the presumption of 14th amendment plaintiff status, which you know to be that of privileges rather than rights.

Which is why you know that a writ of mandamus, while conceptually appropriate for this situation, is a common law writ, and so cannot be accessed by an administrative plaintiff (for lack of common law "standing"). And so, since the actual judicial mechanism for this situation is presumptively barred at the moment of filing these suits, you are safe to ignore it's existence, and the existence of the jurisdiction issue itself, while you indulge in your lawyerly pontificating - without letting anyone know that these are the real legal issues behind the court's constant rejection of standing.

How enjoyable for you.

254 posted on 10/22/2009 2:38:13 PM PDT by Talisker (When you find a turtle on top of a fence post, you can be damn sure it didn't get there on it's own.)
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To: Talisker
You should read the question(s) or statement(s) that I was responding to. It had nothing to do with this specific case, but everything to do with the argument the poster was making.

"no one has ever asserted that the judiciary had, has, or should have the power to review an electoral college election, or claim oversight of such."

As a practical matter, especially in the context of the comment that I made to another poster, that's exactly what the practical implication was.

While all these cases (to my knowledge) have failed to prevail on the issue of standing, even if they did, the court would still have to decide it's ability to provide something else - a remedy. And this was the context or impetus for the comments that I made, and that you responded to.

If, in these particular cases - they had prevailed on standing, the court would still have to address it's own ability to provide a remedy. What remedy can the court provide here? None, zip, nada, nothing.

"without letting anyone know that these are the real legal issues behind the court's constant rejection of standing."

I have discussed standing, subject matter jurisdiction and justiciability ad nauseum on these threads. You must have missed it. And, you accuse me of pontificating when you go an a three paragraph bender about prerogative writs and the such. Nice.

Lastly, since you brought it up, what statutory obligation exactly would you have a Writ of Mandamus compel the legislative branch to execute? Do you know of any other instance in the 230+ years that either Congress or the Electoral College demanded to see the birth certificate - in what ever form - of any President-Elect. Where in the US Code does it demand that they do this?

256 posted on 10/22/2009 4:03:13 PM PDT by OldDeckHand (No Socialized Medicine, No Way, No How, No Time)
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