"In other words, you know, this question of whether a former president is disqualified for insurrection to be president again is, you know, just say it, it sounds awfully national to me. So whatever means there are to enforce it would suggest that they have to be federal, national means. Why does -- you know, if you weren't from Colorado and you were from Wisconsin or you were from Michigan and it really -- you know, what the Michigan secretary of state did is going to make the difference between, you know, whether Candidate A is elected or Candidate B is elected, I mean, that seems quite extraordinary, doesn't it?... Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?"
Said Justice Elena Kagan in today's oral argument in Trump v. Anderson (transcript here).
Kagan's question was reinforced by Justice Ketanji Brown Jackson: "Can I just ask you about... the concern about uniformity and the lack thereof if states are permitted to enforce Section 3 in presidential elections.... I guess my question is why the Framers would have designed a system that would -- could result in interim disuniformity in this way where we have elections pending and different states suddenly saying you're eligible, you're not, on the basis of this kind of thing?"
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26 comments:
It was a bad day for CO. I listened as well and it was a SCOTUS beatdown.
"Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?"
Some people were asking this in 2020, when secretaries of state unilaterally altered their own state's election processes.
Maybe it's the cynic in me given the events of the last 15 or so years, but I get the sense the liberal justices aren't so much interested in the legal questions before the court per se, as they are probing the fences like velociraptors to make certain the legal precedents the will enshrine can never be turned back on any future leftist presidential candidate.
Again, maybe I'm just cynical.
In other words, you know, Justice Kagan is incapable of speaking in public.
I am beginning to like the 14th amendment more and more. Say if Missouri decided that Sen Durban the Dick from Illinois was an insurrectionist they could force Illinois to remove him from the ballot. Because of course the 14th amendment is self executing and Illinois can’t stop it, it’s a rolling freight train!
Justice Kagan hit the nail on the head.
Good gravy. I am impressed by something Justice Jackson said.
This is an odd case.
Electing a president is a bit different process from selecting those offices listed in Section 3 of the 14th Amendment. State legislatures determine the manner in picking the Electors who then vote for President.
And the primary/caucus system precedes that process. I think it would be hard for a state legislature to exclude a candidate from the primaries. Even a candidate who doesn’t meet the constitutional requirements for president (35 years old, etc). They can’t add to the qualifications for President or do an end run around the Electoral College process by cutting off a candidate at the knees in the primary.
The state courts also can’t do it (or the federal courts).
To the extent the Insurrection in Section 3 could even be considered, it would be up to the Electors to decide. At best, it is a qualification added to those in Article 2, it’s up to the Electors.
Not a good day for KJB either. The Framers didn't write the 14th Amendment.
Kagan was in good form. Quite a surprising day.
I think Elie Mistal is going to have an aneurism when the results come out given his early responses to the oral arguments.
There is a distinct lack of diversity at the Supreme Court. Where is the proportional representation for People of Yellow (PoY)? People of White (i.e. albino)?
KBJ I guess my question is why the Framers would have designed a system that would -- could result in interim disuniformity in this way...
The Framers DIDN'T design a system to (mis)function in the way she implies. The plain language of the Constitution gives the Electoral College complete freedom to choose anyone meeting the qualifications laid out in Article II, Section 1, Clause 5, including judgement on those qualifications as amended by the 14th Amendment Section 3. It is the Progressive fetish for 'democracy' that is creating a situation where the EC is little more than a rubber stamp for popular vote, coupled with the Democrat's desire for politics by lawfare.
It's not a single state but that it's some judge or politician in a single state.
"It was a bad day for CO."
I'd say it was a bad day for 4 democrats on the Colorado Supreme Court.
Do justices ever feel embarrassed?
I thought this was a good comment from user "mlhouse" in a thread on Instapundit. This is exactly my view as and close to what I would have written, except I think what he produced is better, especially the last paragraph, so I will share it here:
"There is a reason why President of the United States is not explicitly mentioned in Section 3. That is because it does not apply to the President of the United States. Clearly the Framers of the Amendment would not roll the most important office in the bucket of "ALL OTHERS".
The rationale for this exclusion is simple and needs to be made (for example it is lacking in John Yoo's brief). That is the reason for the Insurrection Clause was to prevent rebellious STATES from reelecting seccessionists to federal offices in STATE elections. Why have a Civil War if at the end of the Civil War the rebelllious states simply reelect the ante bellum politicians that started the war.
But the President of the United States is different in that it is the only office elected on a NATIONAL basis. The Framers had no desire to limit the choices ot The People.
Lastly, another issue not mentioned in most analysis is that the Insurrection Clause is narrowly focused because of the separation of power doctrine. The offices that are potentially excluded are only those controlled by Congress: its own members (Congress can seat its own members), Presidential Electors (Congress certified the electoral counts), and "officers" of the United States (Congress confirms these appointed officers). A Congress or a judiciary, much less a Secretary of State of Maine simply does not have the power to limit who The People choose to be the President."
"Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?"
But it isn't a "single state." The "single state" was one of 51 states that voted that way ... and without the other 50 states voting that way the so-called "single state" would have had no power at all.
"The "single state" was one of 51 states that voted that way"
57 states, please.
"The Framers didn't write the 14th Amendment."
Perhaps not, but they created the laws of the legal universe in which it operates.
"Not a good day for KJB either. The Framers didn't write the 14th Amendment."
Yeah, that was clumsy.
"Say if Missouri decided that Sen Durban the Dick from Illinois was an insurrectionist they could force Illinois to remove him from the ballot."
All they would need to do is to get some newspaper to write an article calling something he had done part of an insurrection, and the thing is self executing! No trial required.
What about Kamala Harris raising money for the rioters who threw explosives into a Federal Courthouse in Portland? Sounds open and shut to me by the new rules. Florida can point to this blog comment as "proof" and the rest is "self executing"! That's what we have been given to understand, that the standard of evidence is when "everybody knows it's true, it goes into force."
"Some people were asking this in 2020, when secretaries of state unilaterally altered their own state's election processes."
Or when the Supreme Court of PA said that the vote count violated PA law in favor of Joe Biden, but there was nothing to be done. Better luck next time. Of course the plain language of the Constitution says that it's up to the legislature, just like Trump said, and the wisdom of this is that there has to be some possible redress, and the courts will be unable to provide it in a timely manner.
There is no requirement at all for a popular vote in the Constitution, selection of the president is the job of the State Legislatures. We saw that in Bush v Gore, but we are all supposed to not remember that.
Favorite sentence so far (from Murray): "Here, there's no real First Amendment problem and -- and a state is just trying to enforce an existing qualification that's baked into our constitutional fabric." Nothing like a good metaphor mixer to make the baking go easier.
The people of Colorado won't vote for Donald Trump, or Joe Biden.
They will vote for Electors who are "pledged" to vote for those men, but by making the Electors actual people, there's plenty of room for exercising judgment in situations which the Constitution doesn't contemplate.
The Insurrection Clause probably *would* apply to the position of Elector, but I would argue that the Electors are the proper enforcers of the Insurrection Clause for the offices of President and Vice-President.
Rick67 said...
Justice Kagan hit the nail on the head.
Good gravy. I am impressed by something Justice Jackson said.
Yeah, Kagan was all "I hate State's Rights, WTF would I vote for this?"
And Jackson asked intelligent, to the point questions.
Thern there's Sotomayor, who was probably feeling sick to her stomach at the thought of voting for Trump, so she came up with a way to say "this can't be used against any Presidential candidate", rather than just Trump
9-0
I'm disappointed by all of these comments. You'all keep coming up with every excuse on both sides on how to interpret the 14th and "insurrection" clause. Yet, none of you criticized the Colorado Supreme Court for making its decision. In fact, they even cited Trump is a insurrectionist yet he has never been charged with let alone convicted. This was purely a disgusting political decision by a bunch of Judges who washed their credibility down the toilet. Should, God forbid, the U.S. Supreme Court decide in the same direction as Colorado's we better pray for our country. It's time people, to stop this disgusting political war. If we don't our country will splinter - maybe that's what the Left/Liberals want in the end.
I am pleased to see even the liberal justices noting the obvious, that this Amendment was designed to limit state power. Its Section 5 explicitly gives Congress the authority to enforce the amendment through appropriate legislation.
Now if only we could haul Michael Mann before this Supreme Court instead of the nullification "jury" they assembled in D.C.
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