Katyal: It's going to fail and your viewers shouldn't tear themselves up about it

[Nevilledog]

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[Frasier Balzov]

1. Is Neal whistling past the graveyard?

I appreciate the fact that Neal Katyal is learned and experienced, but I wish he would address the controlling jurisprudence in a way to overcome its clear implications:

"Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated."

MacPherson v. Blacker cited in Bush v. Gore.

[Thekaspervote]

2. MI law is VERY clear..what you are saying does not apply here..please, just read the link

https://www.michiganadvance.com/2020/11/10/courts-could-step-in-if-theres-a-deadlock-to-certify-bidens-election/

[StarfishSaver]

3. The right of legislatures to choose electors can only be exercised prospectively

It cannot be exercised retroactively. Neither MacPherson nor Bush v. Gore changed that basic legal proposition.

The Michigan electors were selected on November 3. The legislature can not go back and undo it. If they want to have a say in selecting electors in the future, they can pass legislation to that effect. But they can't change the process for selecting the electors whom the voters have already chosen pursuant to state law in effect on Election Day.

[Frasier Balzov]

4. If you have a SCOTUS citation that the state legislature is now estopped

I would love to read that case, whatever it is.

"Resume the power at any time" does not equivocate. It doesn't distinguish between before and after election day.

This description of the power as plenary is what is giving me heartburn.

[StarfishSaver]

5. That is basic black letter law and nothing you cited overturned that

Your reference to MacPherson and Bush v. Gore was incorrect in that neither case held that a legislature could change election procedures retroactively.

I assume you are not a lawyer since no lawyer would ever assume "resume the power any time" authorized a retroactive application of a new law governing elections after Election Day.

[Frasier Balzov]

6. It's not the enactment, revision or application of statutory or common law.

It's the exercise of an exclusive power granted to the state legislature by the U.S. Constitution.

Even Chiafalo from earlier this year holds that state legislatures are possessed of the broadest power of determination over who becomes an elector.

You're saying that a general ex post facto prohibition is implicit in all that express empowerment as a generally accepted limiting doctrine?

An unspoken limitation that I would know was to be assumed if I had received a formal education in the law?

[StarfishSaver]

7. Please toss this word salad of empty legal jargon and irrelevant case references at someone else

I'm not impressed.

[Frasier Balzov]

8. Come on man.

You know what I'm asking and you're putting me down instead of supporting your argument.

The legislature is estopped from selecting electors after election day?

Is that written in the stars somewhere StarfishSaver?

I told you what I fear and why. If you can't help, then that of course is an acceptable answer.

[StarfishSaver]

11. I'm not a man

And yes, legislators are "estopped" from selecting electors after election day. It's not "written in the stars" - it's written in the Constitution (Article II) and federal statute (3 U.S.C. §1), among other places.

[Frasier Balzov]

16. Thank you for the U.S. Code citation!

I can see its importance in the process.

Your guidance has also pointed me to those U.S. Code sections providing for Certificates of Ascertainment and of the Vote.

[dansolo]

14. ex post facto prohibition is explicitly outlined in the Constitution

Read the Constitution. It is not an unspoken limitation. It is right there in the text.

[struggle4progress]

12. US Constitution, Article II, Section 1, Clause 4

The Congress may determine the Time of chusing the Electors ... which Day shall be the same throughout the United States

[struggle4progress]

13. 3 USC 1

The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President

[Cha]

9. Wow.. Lawyer Katyal is brilliant..

I could listen to him all day.. he explains it so well!

RX2 TY, Nd!

[Hekate]

10. Katyal is one of the most competent and brilliant legal minds out there. I find this comforting.

Hang in there, citizens.

[Hortensis]

15. MANY top experts are saying this and expected this. nt