"... meaning that states have no authority to make disqualification decisions under the Fourteenth Amendment unless Congress first passes legislation that authorizes them to do so.... Trump’s petition goes even further, asserting that only Congress, not states, may resolve questions about a Presidential candidate’s qualification.... Trump’s petition also includes an intriguing point that hinges on a sentence in the disqualification clause that has not previously been emphasized: 'But Congress may by a vote of two-thirds of each House, remove such disability.' That means a former government officer who did engage in insurrection or rebellion can hold office after all, with Congress’s permission. The petition argues that the clause, which is about '
holding office,' 'does not prevent anyone'—even an insurrectionist—'from
running for office, or from
being elected to office,' because it is always possible that Congress will vote to permit him to 'hold' office. That has in fact occurred in the past: multiple Confederate rebels won election to federal or state offices around 1868, and Congress removed their disqualifications. So, even assuming that Trump is disqualified from being President, he is not disqualified from running for President in expectation of Congress later allowing him to take office...."
If the Supreme Court chooses that interpretation, then electing Trump will become a way to make the VP candidate President, because we would expect Congress to deny Trump that super-majority vote he needs. Trump would still get all the glory of winning and a monumental new complaint against his antagonists. Imagine the effect on his supporters. Where does all that strange new political energy go?
And then, who is this VP person who becomes the next President? How will he fare with Trump out there, the "real" President, denied by what could be a minority of Congress, all from the party that just lost the election?
Can you picture Democratic Senators and Congresspersons voting to remove the disqualification out of a dedication to democracy? I can't, but pin them down before the election, and maybe enough of them will to say that they will.
But I doubt very much that the Court will pick this resolution of the case.
Posts
75 comments:
"But a few minutes later, he hears somebody calling, “Oh, yoo-hoo, Br’er Fox! Over here!” and he looks – and he sees Br’er Rabbit, sitting on a rock, combing the tar out of his fur with a stick. “Didn’t you know, Br’er Fox,” called Br’er Rabbit. “I was bred and born in the briar patch! Bred and born!” And he hopped away."
So Trump could win, and Congress could disenfranchise all of his voters by disallowing him the Presidency, and that protects democracy. Got it.
I'm going to delete the "off topic" comments. I appreciate your participation, but this thread can't start off with the wrong topic.
Trump could choose Biden as his VP and then take over the operation that makes words come out of Biden’s mouth.
Please stick to the topic raised in the post. I am deleting comments that say things like "It wasn't an insurrection." That's another ground for resolving the case, and it's a very good one, but we've talked about it before.
This post is about the congressional power to remove the disqualification. I need the comments to stay on this topic.
The Supreme Court is in a position to CHOOSE which ground to rely on. Professor Gersen is PUSHING for this ground (if the Court needs a ground to decide against the states that are taking Trump off the ballot).
I'm discussing the political problem with this choice of ground.
But there's no reason, because you, like me, prefer a different ground, to refrain from examining this ground. Its pros and cons need to be expanded upon and understood!
Under section 3 of the 20th Amendment it looks like the Vice President elect becomes President if the President Elect dies before inauguration; but only becomes acting President if the President Elect is disqualified — in which case Congress chooses.
He could poison pill it by having David Duke or Steve Bannon as running mates
@Lucien
What are you saying — "in which case Congress chooses"... what?
Gersen is assuming the running mate becomes the President.
That "acting President" concept is, I think, about a President going under aesthesia and things like that.
“This post is about the congressional power to remove the disqualification. I need the comments to stay on this topic.” You opened the door with, “But I doubt very much that the Court will pick this resolution of the case.”
If we accept the Senate Republican argument, Trump’s disqualification doesn’t become ripe for adjudication until after Trump takes office. Won’t that be fun, having a “President” we can’t be sure is the President.
Won’t that be fun, having a “President” we can’t be sure is the President.
Are you so sure that Biden is President?
It would be very interesting to ask this question of Tammy Baldwin during the run-up to Election Day. I doubt anyone in the WI Press Corps wants to do that however.
It's interesting, but wouldn't there have to be some kind of finding that Trump is ineligible to hold office? To date, he hasn't been convicted of anything. So, if he wins the election, there is no real credible argument that he is ineligible to hold office. It seems this particular issue isn't ripe.
Before everyone on the left gets excited, keep in mind that the numbers favor a Republican Senate next year, and probably. A Republican House.
@Lucien
I think in Amendment 20, the idea of "qualifying" related to controversies in the past where it had not yet been resolved who had won the election. It anticipates a President later qualifying. I think the historical references were the elections of 1800 and 1876.
With this 14th Amendment disqualification, Trump would be disqualified and anticipating a possible removal of the disqualfication. Is that the same as "qualifying"?
If so, then the 20th Amendment says "the Vice President-elect shall act as President until a President shall have qualified" — but how does that "until" work? No one is in the process of qualifying. (It's not like 1800 and 1876.)
Then the 20th Amendment says Congress "may by law provide for the case wherein neither a President-elect nor a Vice President-elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified." That's a power to legislate. Not a power to pick somebody else to be President.
Lucien is referring to this clause in the 20th Amendment:
“If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”
That overrides this part of the 12th Amendment:
“And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President.“
The question would be whether failing to qualifying just refers to a deadlock in the Electoral College and House of Representatives or whether it also extends to the eligibility requirements.
"Before everyone on the left gets excited, keep in mind that the numbers favor a Republican Senate next year, and probably. A Republican House."
But it takes a 2/3 vote to remove the disqualification, so the majority is not what matters.
"It's interesting, but wouldn't there have to be some kind of finding that Trump is ineligible to hold office? To date, he hasn't been convicted of anything. So, if he wins the election, there is no real credible argument that he is ineligible to hold office. It seems this particular issue isn't ripe."
The Supreme Court has taken the case and will give an answer that could cause this to become the issue.
So let's assume for the purposes of this discussion that the Supreme Court will have resolved the disqualification question so that Trump is in fact disqualified but he is not taken off the ballot, because, as has happened before, he still can run for office and present himself for removal of the disqualification.
I don't think that's likely, but that's the topic I'm isolating for discussion.
"Where does all that strange new political energy go?"
To Vivek.
Meaning, IF Trump the yuuge loser commands strange new energy, and somehow gets elected, and then gets disqualified, the energy boosts his best VP option, who also happens to be a person far superior to anyone else running. Win-win.
I think the part that leads off today’s excerpt, “not self-executing,” is pretty firm ground to fight on for Trump. What gives CO or ME the power to interpret a Federal law that explicitly says Congress shall do so?
I think it's a strong argument on the legal merits, but it doesn't solve anything for anyone. I think it would mean that the court would be protecting Trump's right to compete for and possibly win the election; but, if he wins, somebody (Congress? The EC? Individual states?; His running mate?) could take action to prevent him from actually assuming the presidency under section 3. At that point, the court would again have to confront all (or at least some) of the same questions we have been talking about for weeks (e.g., Does section 3 apply to presidents?; Was it an insurrection?).
I feel pretty confident CJ Roberts is not going to favor an approach that keeps the court in the spotlight on this issue for the entire next year. Ripping off the band-aid all at once would be his preferred approach.
The dems don't seem to stand to get much out of it, either. It's conceivable that it would hurt their chances of defeating Trump. People could support him on the theory that they were actually voting for his running mate. The more the dems screamed, "Trump's an insurrectionist, he's disqualified!," the more license they'd give to suburban women to cast their vote for him on the theory that he will never actually get into office. It'd give Trump's candidacy a Schrodinger's Cat quality -- nobody would know if it was dead or alive.
Of course, for Trump to take major advantage of that uncertainty, he might have to pick Bird Brain as his running mate, something he'd obviously be loath to do. And he'd be just as in the dark as everyone else about the ultimate outcome of the process.
I suppose the strategic appeal of the argument from Trump's standpoint is that, if an when he's elected, nobody's at that point would have the nerve to prevent him from taking office, certainly not CJ Roberts.
Howard said...
“He could poison pill it by having David Duke or Steve Bannon as running mates.”
Clarence Thomas. Or Tucker Carlson or Rand Paul.
Since kids today get their news from TikTok, go with a Twitter - sorry, ‘X’ - personality like Iowahawk, Josie the Redheaded Libertarian, Jesse Kelly, or Three Year Letterman.
Heck, include Elon Musk or Javier Milei on the list as well. Of course the last two would be problematic from an eligibility standpoint.
... then the Vice President elect shall act as President until a President shall have qualified;...
=======
Q: whence cometh such a person who can be "a President shall have qualified;"
Q: how does Congress build roster of who shall qualify in such manner?
Dread pirate roberts (ht marko) yes i have little confidence.
With the guidance provided, then this creates a situation I was hoped Trump would do on his own. He becomes “King Maker” in choosing his running mate that will then progress to President. This seems clearer with Charles quotation of the 20th Amendment, particularly,
if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified
Again sticking with accepting the argument, President Elect Trump would fail to qualify. The Vice President elect act as President. The wording suggests the Vice President doesn’t automatically become President, just acting, but that’s because the next clause says that Congress may make a law that might disqualify both and then make the decision. As noted, Congress on January 3, 2024 will likely have one house with a Republican majority, so such law is unlikely.
One thing interesting when considering the power of Congress here is how much the statement in Amendment 20 Section 3 bolsters the statement of Amendment 14 Section 5, which is being ignored by the supposition. Congress has made no legislation to enforce the articles nor to determine if Trump and others are to be disqualified. There is a scenario in which Republicans can lose their majority in the House before January 2024 and provide that legislation. Congress could then disqualify Trump and anybody that runs as his Vice Presidential candidate. That scenario would probably be the best scenario for Democrats, but I’m not sure they have the will amongst the entirety of their party to carry it out, if given the chance. Such an act would essentially disqualify the GOP from running a candidate for either President or Vice President unless prior to the Republican National Convention, where the GOP could rule Trump disqualified due to legislation and then have the delegates choose another. I’m sure Democrats would love that chaos, and it may protect them for choosing to do the same with Biden. Heck, it is almost a DC insider’s wet dream at that point.
Here’s a monkey wrench. How does Trump become disabled from serving as President, because he was involved in an insurrection? That Congress has the power to waive the disability, suggests that the determination of being an Insurrectionist must be at the federal level - we can’t have 1 or 2 states deciding this, because then some states would always decide that the other party’s nominee was disabled by virtue of being involved in an insurrection, giving aid and comfort to the enemy, etc. Before the election, any such disability case would likely be barred as not involving an actual Case or Controversy - because that nominee could lose. Indeed, you could argue that it wouldn’t be ripe until Congress had met in early January to count the electoral votes - because Electors could possibly vote the other way. That leaves between 1 and 3 months to determine whether the President, or VP, was disabled under § 3, and that is impossible under federal law, in federal courts (I.e. no CO type expedited election hearing, that bars most evidence, for the sake of quick closure). Of course, if the Presidential nominee has been convicted in a federal criminal case of Insurrection, etc, this wouldn’t be an issue - he would already be disabled. But criminally prosecuting the other party’s nominee for that, absent unrefutable evidence, would likely be political suicide. And, they don’t have anything like unrefutable evidence. All they have is the report from Nancy Pelosi’s J6 witch trial, which for the most part would be inadmissible under the FRE as unreliable hearsay (CO Supreme Court, that controls the CRE, found them reliable, and thus admissible - but the majority were all Dem nominated Ivy League educated Justices). Where, exactly, does the federal evidentiary hearing fit into the time line? I don’t see it.
Which relied on dubious affirmation that are being challenged by judicial watch by the dominion trial in atlanta
It would seem an odd distinction for the ratifiers of the 14th amendment to make where they don't want insurrectionists to hold office but they are fine with them running for office. If there was some Southern firebrand running for office somewhere in say 1870, and he won overwhelmingly and then the Federal Government swooped in and said sorry you can't actually hold office, I feel like that would reopen a lot of old wounds. Similarly if Trump were allowed to run and he won overwhelmingly but then was prohibited from taking office then this would be more than upsetting to most of his supporters. Also, this might backfire politically on the Democratic base. A significant portion of Democrat voters might feel like this is dirty pool and grow disillusioned with the party. It reminds me of the 2016 Republican primary. I'm not certain which state this was in, it might have been Colorado, but Ted Cruz had talked about a way he would still win the Delegates for the convention even if Trump won the vote in that state. This lost Cruz a lot of support in the Republican primary voters. It even caused some previously supportive media personalities like Sean Hannity to ask him to disavow that strategy.
If this interpretation is allowed does it also apply to other ineligibility standards for President? Could a foreign born citizen or even just a foreigner run for office but not actually take it? Could a 2 term President run again and then rather than he or she take office slot in their VP candidate who they may or may not have control or influence over?
“But it takes a 2/3 vote to remove the disqualification, so the majority is not what matters.”
Yeh, thanks - I realized that after I posted. But that means that absent ironclad proof, in today’s political climate, the disability would never be removed, for the same reason that the Senate is not going to remove anyone who has been impeached by the House, unless there is overwhelming evidence to support the impeachment, and if we are talking Dems, probably not even then.
Can I note the language of “skeptics of disqualification” like “skeptics of climate change” as if the one thing is an accepted given “that Trump can be disqualified” but the skeptics don’t accept it. In this case, I think Trump can be disqualified, but without a law passed by Congress or Due Process, then it can’t happen under the 10th Amendment, which seems like the only standing Colorado has to individually make a disqualification.
This all suggests another can of worms for Democrats to open. Could they, by simple majority pass a law signed by a President disqualify whomever? I think they could. And that’s alarming when you consider the hearings of the first Trump Impeachment in which the discussion was basically if the House could impeach the President for any reason they chose, because Trump did not commit any statute crime or misdemeanor in his conduct with the Ukrainian aid. They made it clear they were impeaching because they could, so why wouldn’t they disqualify because they could? I’m not skeptical they wouldn’t ever try.
Difficult to find - the dissenting judge on the CO supreme court wrote the best dissent ever.
Taken together, I think the 12th and 20th amendments say this:
(1) Vice-President elect, if his own election has been certified by Congress, becomes the President if the House has not certified or selected a President from the three highest electoral vote recipients in the election by the time the previous President's term expires on January 20th of 2025.
(2) If neither a President or Vice-President has qualified by the time the previous President's term expires on January 20th, then and only then can Congress act to appoint an acting President until such time as a Presidential candidate qualifies.
Trump gets the most votes, but doesn't have the disqualification removed. Why not then look to the next highest vote getter, and if eligible, make the president? Biden, right? With a Republican VP.
Someone needs to read “ Shelley’s Heart” by Charles McCarry— stolen election mystery.
https://www.publishersweekly.com/9780679415336
SCOTUS is not going to declare Trump ineligible to hold office but be able to run for office. The most likely decision is that SCOTUS simply writes that the power of disqualification lies with Congress alone- no other entity, which is pretty clearly what is actually required.
Gersen's argument is more wish-casting by the left- it is still arguing that the 14th section 3 is self-executing by asserting that Congress must remove the disqualification by a 2/3's vote. Congress can disqualify Trump next January, should he win a majority of the electoral votes in November, by a simple majority vote by refusing to certify the Electoral College vote and throwing the election into the House under the procedures of the 12th Amendment.
However, let's suppose that SCOTUS does, in fact, decide that Trump is ineligible and that individual states can remove him from the November ballot. The best strategy for the GOP would be to simply put another candidate at the top of the ballot in those particular states, like Nikki Haley or Ron DeSantis. Now that would be an interesting outcome- and probably one that a lot of Democrats would not like one bit, especially if one simply accepts the proposition that those two candidates are stronger electorally than Trump is. Trump would get to win all the solidly red states, while Haley or DeSantis gets to pick off the more purplish states like NV, WI, MI, AZ, GA, PA- the effect of which would likely be that no candidate gets a majority of the electoral votes and the House selects from the top 3 vote getters.
"What gives CO or ME the power to interpret a Federal law that explicitly says Congress shall do so?"
The Supremacy Clause: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding."
And Article III (which leaves it to Congress to create the lower federal courts and therefore gives rise to the inference that state courts must decide questions of federal law).
There is a presumption that the states have "concurrent jurisdiction" over issues of federal law. There can be exclusive federal jurisdiction, but that requires overcoming the presumption.
Your suggestion is, essentially, that the case is nonjusticiable under the "political question" doctrine (that the Constitution gives this particular issue exclusively to Congress).
Ann Said: "So let's assume for the purposes of this discussion that the Supreme Court will have resolved the disqualification question so that Trump is in fact disqualified but he is not taken off the ballot, because, as has happened before, he still can run for office and present himself for removal of the disqualification."
If SOCTUS found that Trump is in fact disqualified (when it can apparently only let stand the Colorado case finding of that fact, without that being binding on other States or Congress...), Trump could indeed seek removal of that or any other finding of disqualification.
But under that set of circumstances, the Colorado decision on disqualification (as to ballot access) might then exhibit insufficient due process (as to the right to hold a particular office), because if Trump had winning electoral votes, he'd have a much more firmly established and more significant property right (right to hold a particular office), the deprivation of which may require greater due process than was present in the Colorado case. See Judge SAMOUR's Dissent in the December 19, 2023 Colorado decision.
Ok, that way out of that trap is for TRump to choose Tucker Carlson as his VP. In any case, the SCOTUS had better knock down this entire "insurrectionist" nonsense. We don't need people twisting some 150 year old words in the 14th admendment to disqualify a Republican POTUS nominee.
The petition argues that the clause, which is about 'holding office,' 'does not prevent anyone'—even an insurrectionist—'from running for office, or from being elected to office,' because it is always possible that Congress will vote to permit him to 'hold' office.
Ironically, the mechanism to accomplish this sounds like it would entail anti-Trump state actors to disqualify Trump electors following Trump's election and replace them with other electors in the absence of 2/3 Congressional action.
Isn't that, in part, the very conspiracy Trump is accused of?
My take:
The Supreme Court will be most mindful of how their ruling affects FUTURE elections. Therefore, any ruling that leaves open the possibility of this kind of labyrinthine maneuvering in the future will be rejected. To see how the SC is thinking, drop the Trump-framing and think beyond this election.
I'm guessing they will do something pretty simple and I don't see how they can allow ballot elimination in any but the most extreme cases. Imagine the nightmare each election will become if 50 different states are allowed to tamper with the ballots based on idiosyncratic findings of fact. Maybe they will say that the 14th amendment applied to the Civil War only (where hundreds of thousands of Americans died) and that a similar injunction against post-Civil-War insurrectionists will require a new amendment.
The sentence giving Congress power to override the disqualification certainly disposes of the CO and ME decision to disqualify a purported "insurrectionist" from the ballot. If Roberts were looking for the narrowest ground to decide the case that would ensure unanimity, I could easily imagine him crafting such an opinion.
I suppose the 5 other Justices could write a concurring opinion making it clear that a majority of SCOTUS would prohibit disqualification on the lack of enabling legislation, which would presumably cut off any post-election attempt to challenge Trump's election. Would the 3 Democrat-appointed justices sit silent, or feel compelled to dissent from the concurrence--just to provide some red meat for the MSM narrative?
Progressives spend more time trying to figure ways to disqualify their opposition than they do developing policies that would encourage people to vote for their candidates.
"Where does all that strange new political energy go?"
Don't know, FAFO comes to mind.
Does seem like the best of all worlds. I want to see a president other than Trump or Biden.
"Where does all that strange new political energy go?"
I don't know. But it won't work under water, I know that much.
"What gives CO or ME the power to interpret a Federal law that explicitly says Congress shall do so?"
It's not a state's ability to interpret a federal law that's at issue. It's a state's ability to adjudicate a claim under section 3 under the rubric of its own election law, rather than the federal statutory scheme contemplated under section 5, that's at issue.
If there were a federal statute in force establishing procedures for adjudicating a person's alleged disqualification under section 3, and it conferred jurisdiction on state courts to hear and decide such claims, then Colorado would be good to go. But there isn't, and so Colorado just assumed jurisdiction under its own elections law to decide the section 3 claim against Trump. As the second dissent argues quite persuasively, Colorado's election law cannot serve to fill the void left by the lack of federal legislation establishing an adjudication mechanism for section 3 claims. Among other problems, Colorado's election law doesn't provide the necessary due process.
No disqualification that's a cop out'this fellow will be beat like a drum again andbits the only way to se ND him packing for good.Total immunity is a joke and will not fly use your common sense SEAL TEAM 6!Righties will be forced to vote for this fella and will continue to back losers .
One wonders: Is everyone who has 1) sworn to support the Constitution and 2) given aid and comfort to the "insurrectionists" (e.g., blog comments or defense funds) himself or herself capable of being adjudged an "insurrectionist" and therefore disqualified from the Presidency?
The comments on this thread are outstanding!
Meanwhile, DC U.S. Attorney Matthew Graves, who is prosecuting Jan. 6 cases, has raised the possibility of bringing federal criminal charges against the thousands who went to the Capitol but did not enter the building but simply walked onto the grounds.
Dissent was the highest form of patriotism.
I thought this was an exaggeration when I first saw it. But, no. It is a threat.
“I think the part that leads off today’s excerpt, “not self-executing,” is pretty firm ground to fight on for Trump. What gives CO or ME the power to interpret a Federal law that explicitly says Congress shall do so?”
Ann - I think that Mike was asking a different, but related question. The issue is that some provisions of the Constitution are self executing to enforce, and some require (presumably Federal) legislation. § 5 provides that: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” That suggests that § 3 is not self executing AND that only Congress can enact enabling legislation, which it has done twice, in regards to eliminating disabilities under § 3. If enabling legislation were not necessary, to enforce § 3, then why was § 5 included in the 14th Amdt?
“Your suggestion is, essentially, that the case is nonjusticiable under the "political question" doctrine (that the Constitution gives this particular issue exclusively to Congress).”
I don’t see that. You are the Con Law expert, but I see this more as an issue of power granting versus power limiting, and as such that power has not been granted to enforce § 3, absent federal legislation. Political Question, on the other hand, would be power limiting.
Vault Dweller,
In 1860, elections were shorter, information travelled a lot slower and Senators were appointed by State Legislators.
Agree that it's unlikely that SCOTUS will adopt the view that the 14th Am may preclude Trump from 'holding' the office of president but does not bar him from running for the office of president. Still, you have to admire the cleverness of the argument, which will undoubtedly have a certain appeal to a devoted textualist. By citing the Civil War era precedents, a textualist-minded judge can also rely on that history to construe the original understanding of the text. Yet the overwhelming disadvantage to that approach is the one Althouse notes -- it almost guarantees strong protests across the country, keeps the result of the 'election' up in the air for months and de-legitimizes the very event (the voters' choice!) that should be paramount.
But the textualist argument has one great advantage that I think the SCOTUS will want to achieve even if by other means: it makes the 14th Am disqualification issue exclusively for decision by a federal entity (Congress) rather than permitting the states to decide it one by one. Who is qualified to run for president is obviously an issue that needs a single, nation-wide answer -- can't be one rule applicable in Colorado and a different one in Michigan, one rule for Maine and a different one in California, but that's what you get if it's all up for grabs in the 50 states plus DC. There are several ways the SCOTUS could reach that result without adopting the distinction between 'running' and 'holding' and I suspect they will grab on to one of those alternatives to reverse the Colorado/Maine approach.
Agree that it's unlikely that SCOTUS will adopt the view that the 14th Am may preclude Trump from 'holding' the office of president but does not bar him from running for the office of president. Still, you have to admire the cleverness of the argument, which will undoubtedly have a certain appeal to a devoted textualist. By citing the Civil War era precedents, a textualist-minded judge can also rely on that history to construe the original understanding of the text. Yet the overwhelming disadvantage to that approach is the one Althouse notes -- it almost guarantees strong protests across the country, keeps the result of the 'election' up in the air for months and de-legitimizes the very event (the voters' choice!) that should be paramount.
But the textualist argument has one great advantage that I think the SCOTUS will want to achieve even if by other means: it makes the 14th Am disqualification issue exclusively for decision by a federal entity (Congress) rather than permitting the states to decide it one by one. Who is qualified to run for president is obviously an issue that needs a single, nation-wide answer -- can't be one rule applicable in Colorado and a different one in Michigan, one rule for Maine and a different one in California, but that's what you get if it's all up for grabs in the 50 states plus DC. There are several ways the SCOTUS could reach that result without adopting the distinction between 'running' and 'holding' and I suspect they will grab on to one of those alternatives to reverse the Colorado/Maine approach.
The petition argues that the clause, which is about 'holding office,' 'does not prevent anyone'—even an insurrectionist—'from running for office, or from being elected to office,'
Glad we’ve caught up to my argument from about six monthsago. Ballots aren’t mentioned anywhere in the 14th amendment.
It says hold office.
Let him get elected and then see if congress still wants to keep him out of office.
“"What gives CO or ME the power to interpret a Federal law that explicitly says Congress shall do so?"
The Supremacy Clause: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding."”
So state courts are empowered to interpret and rule on federal law, because they have to decide where their bounds are. But if they decide that federal law does apply, they are bounded and can’t rule on the issue using state law. Does that really mean that they can then rule on the case using Federal law or do they order the issue moved to a federal court? I think that ruling on state vs federal is different than ruling on the issue of the case itself.
"Trump gets the most votes, but doesn't have the disqualification removed. Why not then look to the next highest vote getter, and if eligible, make the president? Biden, right? With a Republican VP."
This is the wishcasting Gersen is doing, if subtly unstated inside her essay. Biden/Democrat would be the next highest vote getter in that scenario, and with Trump disqualified, the House would then vote to decide between Biden and "none of the above" if no other candidate wins an electoral vote. Can a House state delegation cast a vote for "none of the above", and if the Republicans hold a majority of the House delegations (likely to be the case even if they lose the House), can they then deny Biden/Democrat the Presidency? Republicans had better be prepared for this sort of possibility before the various states certify any electoral votes, because I promise you the Democrats are already planning for this possibility- you can see in this essay in particular.
Let's say the sitting House next January 6th decides they are going to disqualify Trump on that date by refusing to certify his electoral votes. The Democrats will then be prepared to argue that Biden/Democrat is the only other candidate that meets the requirements of the 12th amendment which require the House to choose between the 3 highest electoral vote recipients and that "none of the above" isn't a valid option for a state delegation. Abstaining from the House vote will then be the only option, denying Biden/Democrat a majority of the state delegations. If the Democrats have also refused to certify the VP choice, then a majority of Congress gets to choose the acting-President, which, if the Democrats control the House could be Biden/Democrat, and probably would be. The thing the GOP needs to do if this has a possibility of happening is for some GOP elector/s, somewhere, to choose DeSantis/Haley/whoever so that there is at least one GOP candidate for a House election procedure. Of course, if the Democrats see an opening to overcome a Trump victory, they might try the "faithless elector" route to occupy all three top spots in case of a Trump/VP disqualification. Just my warning to the GOP- trust the Democrats to try to win all costs.
The position of these law professors, including "conservative" Michael Stokes Paulsen and "libertarians" Will Baude and Ilya Somin, that some state election official can bar a candidate from the ballot without a hearing is madness.
Goldberg v. Kelly, 397 U.S. 254 (1970), held that the termination of welfare benefits requires some sort of evidentiary hearing. Boumediene v. Bush, 553 U.S. 723 (2008) held that enemy combatants captured in a foreign war are entitled to a hearing. It makes no sense that a government official can make such a ruling without a hearing. Section 1 of the 14th Amendment provides,
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
There is nothing in the 3rd Section which negates this.
It is only a hatred of Trump which has caused these law professors - left, right, and center - to lose their collective minds.
“Your suggestion is, essentially, that the case is nonjusticiable under the "political question" doctrine (that the Constitution gives this particular issue exclusively to Congress).”
I don’t see that (that this is a Political Question issue). But agree as to Supremacy Clause. The problem I see is that § 5 provides that Congress can enact legislation to enforce other provisions of the 14th Amdt (including § 3) and, § 3 provides that Congress can remove the Insurrection disability. This strongly suggests federal Supremacy, and exclusivity. If § 3 were self-executing, then § 5 wouldn’t have been necessary. And without being self-executing, and Congress having exclusive jurisdiction in legislation enforcing the 14th Amdt, states have no role here, unless the legislation to enforce a specific provision of that Amdt provides them such a role. And while that has occurred in regards to other §§ of that Amdt, there isn’t currently a federal statute enforcing § 3.
As to justifiability, the CO case is Justiciable, because the harm is real, but likely wouldn’t be, until after the election, at least, on Ripeness grounds, in the case of this scheme to require 2/3 of Congress to relieve the Insurrection disability from Trump.
I still think Trump's attorney today had the better argument when he said the proper remedy for Presidential acts is impeachment and removal, after which they can be tried criminally should a prosecutor be inclined. Trump was undoubtedly president when J6 took place and he was undoubtedly impeached for it as well, just after leaving office, but not convicted. Therefore, the threshold for prosecuting was not met.
Outside of immunity questions or coverage of the "office" of President questions, this one gets to the heart of the matter and does not require the SCOTUS to decide too much. They can simply find that since the second impeachment failed to convict Trump all available remedies for his actions on J6 are exhausted.
I'd prefer they decide the immunity question, because it hangs over the office like the sword of Damocles waiting for some sane prosecutor (or perhaps Smith will give it a real test) to take it to a place where SCOTUS must finally delineate the actual boundaries for Immunity.
Finally, when it comes to preferences, I wish Althouse was always vigorously weighing in on legal issues like she has today. What a nice addition it brings to this topic!
resident Biden, was at Valley Forge, explaining that This Country was founded by people in insurrection against their King..
resident Biden further explained, that HE would be funding an initiative to create time machines..
so that his forces could go back in time; and EXECUTE each and every one of those "terrorists"
So.. When a judge (or sec of state) in Ohio rules that Biden is disqualified under the 14th..
What do the democrats do? I mean, of than scream and shout
Ann’s criticism of my earlier post seems right.
Also, in olden days “strict constructionists” argued that Congress had rather limited powers, so a clause saying that Congress shall have power to pass laws consistent with an amendment makes such power explicit, rather than suggesting federal preemption of the subject.
Context matters.
If we assume that the Court says something like Trump is eligible for the ballot in Colorado (for reason X) and that is separate from being ineligible to hold office (for reason Y), but that a state can determine if a person is an insurrectionist via state charges (for reason Z) and that is binding.
Then it would take about 10 microseconds for some forum shopping democrat party aligned DA to bring charges of insurrection against Trump (maybe in Illinois?) and quickly find him guilty of insurrection. Every other democrat from sea to shining sea would loudly trumpet that Trump is ineligible.
This is (more or less) the situation you want this discussion limited to, yes?
If Trump loses no biggie, he looses and it is a moot point.
If Trump wins big, like Joe Biden babbling incorherently on mic the first week of October and the electorate collecitvely saying "yeah he is pudding brian", and Trump gets 60% of the vote and 345 Electoral Votes, then the democrats would back away from the finding that Illinois claims he is an insurrectionist. Trump becomes president.
The question is if Trump wins 48% of the vote (to Biden 49%) and a clear electoral college victory will the democrats decide to die on the hill that an Illinois court has invalidated a nationwide presidential election result? Yes, I think the Democrats would die on that hill.
We're just sooo close to emanations and penumbras rendering elections moot.
...your choices are the Democrat or...the other Democrat pretending to run against the Democrat.
Meanwhile, DC U.S. Attorney Matthew Graves, who is prosecuting Jan. 6 cases, has raised the possibility of bringing federal criminal charges against the thousands who went to the Capitol but did not enter the building but simply walked onto the grounds.
Also meanwhile, Ray Epps gets a year probation with no jail time because "he didn't actually go into the Capitol". So why spend any prosecutorial effort in going after other person that never went into the Capitol?
It wouldn't make sense to hold that, even though Congress needed explicit authorization to enact legislation to enforce the section 3 of the 14th Amendment, the States didn't need any such explicit authorization.
I suppose a counterargument might be that section 5 gives Congress explicit authorization to enforce other provisions of the 14th Amendment (e.g., the equal protection clause in section 1), but not section 3 because it wasnt required. But then the question would be: what supports that distinction? Nothing springs to mind.
Justice Samour's dissent, I Stand With etc.? I just read all three and I liked that one the most - not least because of the Princess Bride footnote. But that justice also gave (in my NAL opinion) the best historical context as to when, why, and how Sec. 3 is or is not self-executing.
"meaning that states have no authority to make disqualification decisions under the Fourteenth Amendment unless Congress first passes legislation that authorizes them to do so."
Why yes, that would be what Section 5 says:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
SCOTUS announced on 1/5 they were taking the Colorado case:
https://www.supremecourt.gov/orders/courtorders/010524zr2_886b.pdf
The case is set for oral argument on Thursday, February 8, 2024. Petitioner’s brief on the merits, and any amicus curiae briefs in support or in support of neither party, are to be filed on or before Thursday, January 18, 2024. Respondents’ briefs on the merits, and any amicus curiae briefs in support, are to be filed on or before Wednesday, January 31, 2024.
Starting late Wed 1/31, and going in to 2/1, we're going to get some great blog posts about how utterly stupid the Respondents’ briefs and amicus curiae briefs in support are. Heck, I may play myself.
I don't see how they can allow ballot elimination in any but the most extreme cases.
The problem is that they're framing this as the most extreme case.
Samour's dissent points out (among many other things - it was pretty dang gripping even for me) that the whole basis of the 14A is that the federal government didn't trust the States in the aftermath of the Civil War. It was enacted to expand the power of the federal government and constrain the power of State governments. So this reading - that the section is self-executing and each State can do as it pleases with it - is backwards, in his view.
Interestingly, he was born in El Salvador, where they know little something about election fixing. His frustration with the "reasoning" of his "colleagues in the majority" is out and proud.
Won’t that be fun, having a “President” we can’t be sure is the President.
Apparently you - like Biden - have been asleep for the past three years.
The Supreme Court has until about December 10 to decide Trump's eligibility, because up until December 17, nobody will vote for Donald Trump or Joe Biden. In the primary elections, they will vote for delegates to their party's convention, and in the general, they will vote for Electors.
So if Trump is disqualified (or dies) before the RNC, the delegates pledged to him can vote for someone else, and if he's disqualified or dies before the Electors vote on December 17, the Electors pledged to him can vote for whoever they want. (For that matter, they can do that anyway, but rarely do.) That freedom is part of the point of having Electors.
Left Bank of the Charles said...
"Won’t that be fun, having a 'President' we can’t be sure is the President."
There used to occasionaly be anti-popes; maybe we can elect an anti-president. And just as one of the anti-popes ruled from Ravenna instead of Rome, our anti-pope can set up shop in Madison.
It seems likely that the decision will be on the self-executing nature.
The needle can be threaded as such, the 14th is self-executing but the Federal government has already determined the process by which someone is found guilt of insurrection under 18 U.S. Code § 2383.
So since the government hasn't tried Trump for insurrection and found him guilty, then the issue is moot.
Come back when he's guilty. He stays on ballots and is eligible for the office.
I must confess, it would be very amusing for Trump to win the election that even teh Dems couldn't "fortify" enough, and then have teh Dems try the "he committed insurrection, therefore he can't become President, Nikki Haley will take the job".
Because then we would get to see an actual insurrection, with people who do all bring their guns this time.
And 2/3 of the living House and Senate members WOULD vote to "remove the infirmity" from President Trump. Eventually.
Note: I dont' want Trump to be the GOP nominee. He's an ass, and a loser. And as President he would spend another four years being beaten by the Deep State, and sabotaged by his appointees.
Just like he did for his first four years.
But he's still infinitely superior to Biden, and the Democrats attempt to use lawfare to deny the voters their (potentially) chosen candidate is an action that deserves a 9mm solution
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