Keeping Insurrectionists Out of Office
It's easy if you try.
Steven and I briefly weighed in yesterday afternoon on the Supreme Court’s unanimous ruling that state courts lack the authority to keep Donald Trump off the ballot via Section 3 of the 14th Amendment. While we both expected this outcome, we each had different quibbles with the ruling.
SCOTUSblog’s Amy Howe (“Supreme Court rules states cannot remove Trump from ballot for insurrection“) does her usual fine job of summarizing the analyses from the overlapping opinions:
The Supreme Court on Monday ruled that states cannot disqualify former President Donald Trump from the ballot for his role in the Jan. 6, 2021, attacks on the U.S. Capitol. In an unsigned opinion, a majority of the justices held that only Congress – and not the states – can enforce Section 3 of the 14th Amendment, which was enacted in the wake of the Civil War to disqualify individuals from holding office who had previously served in the federal or state government before the war but then supported the Confederacy, against candidates for federal offices.
All nine justices agreed that Colorado cannot remove Trump from the ballot. But four justices – Justice Amy Coney Barrett in a separate opinion and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson in a joint opinion – argued that their colleagues should have stopped there and not decided anything more.
[…]
The justices explained that the 14th Amendment was intended to expand the federal government’s power at the states’ expense. And in particular, they noted, Section 3 was designed to “help ensure an enduring Union by preventing former Confederates from returning to power in the aftermath of the Civil War.”
But before disqualifying someone under Section 3, the justices observed, there must be a determination that the provision actually applies to that person. And Section 5 of the 14th Amendment gives the power to make that determination to Congress, by authorizing it to pass “appropriate legislation” to “enforce” the 14th Amendment. Nothing in the 14th Amendment, the court stressed, gives states the power to enforce Section 3 against candidates for federal office, nor was there any history of states doing so in the years after the amendment was ratified.
Moreover, the court added, allowing states to enforce Section 3 against candidates for federal office could create a variety of problems. First, although Section 5 requires Congress to tailor any legislation that it enacts to implement Section 3 so that it specifically targets the conduct that Section 3 was adopted to prevent, state efforts to enforce Section 3 would not face this same limitation. “But the notion that the Constitution grants the States freer rein than Congress to decide how Section 3 should be enforced with respect to federal offices is simply implausible,” the court concluded.
Allowing states to enforce Section 3 for federal candidates could result in a scenario in which “a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record),” the court warned. And that could create a “patchwork” that could “dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times.” “Nothing in the Constitution,” the court wrote, “requires that we endure such chaos.”
The court did not reach some of the other issues that Trump had urged them to decide in his brief on the merits – such as whether Trump “engaged in insurrection” on Jan. 6.
Barrett penned a one-page opinion concurring in part and concurring in the judgment. In her view, the court’s holding that states cannot enforce Section 3 against presidential candidates was “sufficient to resolve this case.” The court should not, she suggested, have weighed in on “the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”
And in a relatively rare move, she appeared to criticize the tone of the joint opinion filed by Sotomayor, Kagan, and Jackson, asserting that “this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.”
In their six-page joint opinion, Sotomayor, Kagan, and Jackson agreed with the result that the per curiam opinion reached – that Colorado cannot disqualify Trump – but not its reasoning. The three justices acknowledged that permitting Colorado to remove Trump from the ballot “would … create a chaotic state-by-state patchwork.”
But the majority should not, in their view, have gone on to decide who can enforce Section 3 and how. Nothing in Section 3 indicates that it must be enforced through legislation enacted by Congress pursuant to Section 5, they contended. And by resolving “many unsettled questions about Section 3,” the three justices complained, “the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.”
As I noted in anticipation of the ruling yesterday morning, that so many of the Justices took a consequentialist view during oral arguments—which is now reflected in the opinion—is odd. That question is whether state election officials and/or state courts have the authority to apply Section 3, not whether a patchwork system would create chaos. As Steven rightly noted yesterday, ours is and always has been a patchwork system.
Still, while their reasoning varied, all nine Justices agreed that the states lack this power. The liberals simply wanted to stop short of saying who did have the power. While it had not occurred to me in all the months I’ve been writing about “14th Amendment solutions,” the majority’s view that Congress must pass legislation under Section 5 (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”) strikes me as a perfectly sensible answer to that question. Indeed, it’s really the only answer that makes sense.
I share Steven’s frustration that “this is not a ruling that addresses the real problems we are facing in regard to the very real possibility that a fellow who said he understood and loved the rioters at the Capitol may well be the next president of the United States.” But I don’t think that was the Court’s role. The fact that the Republicans are poised to nominate this yahoo for a third consecutive time and that the Democrats are poised to nominate a candidate who could lose to him is outside the purview of the judiciary. Ditto an antiquated Presidential election system that could, for the third time in seven cycles, put a man in office who received fewer votes than his opponent.
No, their role here was simply to rule on whether Colorado had the authority to declare Trump an insurrectionist and bar him under Section 3. All nine Justices ruled that they couldn’t. Thus, as I’ve been saying since I first saw the prospect raised, it’s going to be up to the American people to keep Trump out of office.
Not shockingly, Slate‘s Mark Joseph Stern (“The Supreme Court’s ‘Unanimous’ Trump Ballot Ruling Is Actually a 5–4 Disaster“) isn’t happy with this.
On Monday, the Supreme Court unanimously reversed a Colorado Supreme Court decision removing Donald Trump from the ballot because of his engagement in an insurrection on Jan. 6. But that top-line holding is where the unanimity ended because five conservative justices just couldn’t help themselves: They went much further than the case required, announcing an entirely new rule that Congress alone, through “a particular kind of legislation,” may enforce the constitutional bar on insurrectionists holding office. As the three liberal justices pointed out, in a separate opinion that glows white-hot with indignation, the majority’s overreach “attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.” They are, of course, correct. After this decision, it is impossible to imagine a federal candidate, up to and including the president, ever being disqualified from assuming office because of their participation in an insurrection.
No, it isn’t. All it would take is Congress to pass a law outlining, prospectively, what Section 3 means in a context other than the U.S. Civil War. Does it require conviction of charges under the Espionage Act? Something less than that?
Rather obviously, this Congress isn’t going to pass a law banning Donald Trump from office. The impeachment trial was their chance to do that and, because of the cowardice of most of the Senate Republican Caucus, they abrogated that responsibility. There’s the possibility that they could pass a law that kept some of the worst Capitol Riot offenders, such as the Proud Boys and Oath Keepers leaders convicted of seditious conspiracy, off the ballot but I wouldn’t hold my breath for that. (And, really, I’m not super worried that they’d get elected to federal office, anyway.) So, again, I think we need to think prospectively: what constitutes “insurrection” in a context other than the one Section 3 was written in response to and who adjudicates whether a particular candidate is guilty of it?
Stern at least acknowledges something that many enthusiasts don’t:
This case involved a genuinely difficult dispute: Section 3 of the 14th Amendment, enacted in the wake of the Civil War, bars former insurrectionists from reclaiming office but does not explain how this bar should operate.
That’s been the crux of the issue all along and far too many simply glide over it. Why, it’s obvious that Trump was an insurrectionist, damn it, and the 14th Amendment is self-executing! And, interestingly, Stern concedes this as well:
A group of voters urged the Colorado courts to enforce the amendment on their own, under a state law that lets voters challenge any candidate’s legal qualifications for office. The Colorado Supreme Court heeded the call and dumped Trump from the ballot. All nine justices have now agreed that states may not unilaterally disqualify a presidential candidate. Doing so, they reasoned, would allow a handful of states to effectively determine the outcome of a presidential election, undermining the inherently national nature of both the election and the presidency itself. The Constitution’s division of authority between the federal and state governments cannot permit a state’s go-it-alone effort to disqualify a federal candidate who’s running to represent the entire country.
But that pretty much ends it, no? If neither Colorado nor any other state has the authority, then Trump is on the ballot unless some other entity with the authority removes him. After some back-and-forth about precedents and the arguments between SCOTUS’s conservative and liberal justices in their clashing opinions, Stern writes,
[I]t is bizarre to claim that the insurrection clause requires enabling legislation by Congress when the remainder of the 14th Amendment—indeed, all three amendments ratified after the Civil War—is “self-executing” (meaning it does not require congressional action for enforcement). Everyone agrees that Congress need not pass a law to ensure that all persons have due process, equal protection, and freedom from enslavement. Why, the liberals wondered, did the majority create “a special rule” for the insurrection clause alone? They added that the clause does mention congressional action, but only to say that Congress may lift a disqualification by two-thirds vote: “It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation.”
This is comparing apples and bowling balls. All of the other provisions limit state action, albeit in ways that would require Congress and the courts to weigh in on. Section 3 is unique in that it limits individual action. Rather obviously, then, someone has to determine who is an insurrectionist.
These disagreements matter a great deal. As the liberals point out, the majority’s sweeping Congress-only approach “forecloses judicial enforcement” of the insurrection clause—in, for instance, the context of a criminal trial involving an insurrectionist. It also bars future enforcement on the basis of “general federal statutes” that compel “the government to comply with the law,” since the majority says any congressional enforcement must be “tailored” to the insurrection clause. And it even empowers the Supreme Court to prevent Congress from disqualifying an insurrectionist in the future, because the court can claim that any enabling legislation did not adhere to the made-up rules in Monday’s opinion.
This all strikes me as nonsense. There’s nothing in the ruling precluding judicial enforcement. Indeed, given that any application of a statute enforcing Section 3 ineligibility would result in a lawsuit, it’s damn near assured. Indeed, the legislation itself would be, as noted by the majority, “subject to judicial review.”
Stern closes:
In their incandescent opinion, the liberal justices walk right up to the line of accusing the majority of doing a special favor for Trump. They are right to do so, and they would have been justified to cross it. The majority had no reason to nullify the insurrection clause other than an obvious desire to ensure that no other federal candidates are nixed from the ballot because of their participation in Jan. 6. An optimist might say that by doing so, the majority was just trying to inject stability into the upcoming election. But close court-watchers know that every time this Supreme Court waves the flag of stability, it does so on behalf of Trump and his allies. Anderson’s bottom-line outcome is certainly defensible. But the rest of it serves as an unwarranted gift to Donald Trump and the oathbreakers who violently assisted his efforts to overturn a free and fair election
Again, this is absurd. All nine Justices agreed that neither Colorado nor any of the other 49 states have the authority to rule Trump or any other candidate ineligible. While it’s arguable that the majority went too far in saying who did—Congress—Stern and others would have been hopping mad if they’d left that rather obvious question unanswered.
The erstwhile Republican David French offers a broader critique in his NYT column “The Supreme Court Just Erased Part of the Constitution.”
As of Monday, March 4, 2024, Section 3 of the 14th Amendment of the Constitution is essentially a dead letter, at least as it applies to candidates for federal office. Under the U.S. Supreme Court’s ruling that reversed the Colorado Supreme Court’s decision striking Donald Trump from the state’s primary ballot, even insurrectionists who’ve violated their previous oath of office can hold federal office, unless and until Congress passes specific legislation to enforce Section 3.
But Section 3 was already pretty much a dead letter. As noted here endlessly, it was enacted to prevent the very real likelihood of former Confederate leaders being sent to Washington and, in short order, Congress actually passed legislation waiving that disability for all but a handful of them. For most of the last 156 years, it has been a veritable vestigial organ, as there has, thankfully, been a dearth of insurrections.
It’s frankly not at all unreasonable to ask that, if we’re going to enforce it, Congress use the power granted elsewhere in the Amendment to set forth procedures for implementing it. While the prohibition against insurrectionists serving may well be “self-executing,” enforcement of it clearly is not.
A narrow ruling for Trump might have held, for example, that Colorado didn’t provide him with enough due process when it determined that Section 3 applied. Or the court could have held that Trump, as president, was not an “officer of the United States” within the meaning of the section. Such a ruling would have kept Trump on the ballot, but it would also have kept Section 3 viable to block insurrectionists from the House or Senate and from all other federal offices.
The “officer of the United States” argument has always been absurd. Why on earth would we ban insurrectionists from serving as backbenchers in the House of Representatives but hand them the nuclear codes? And, again, all nine goddamn Justices agreed that states lack authority to enforce Section 3; due process has nothing to do with it.
This canard is beyond tiresome at this point:
We can bar individuals from holding office who are under the age limit or who don’t meet the relevant citizenship requirement without congressional enforcement legislation. We can enforce the two-term presidential term limit without congressional enforcement legislation. Section 3 now stands apart not only from the rest of the 14th Amendment, but also from the other constitutional requirements for the presidency.
These provisions are remarkably easy to “self-execute” and yet most of them have required clarification. The citizenship requirement has absolutely been legislated. It’s how we know that, for example, John McCain was a “natural-born citizen” despite being born overseas to American citizens serving in the Navy. Even though the ages of 18 (voting), 25 (serving in the House), 30 (serving in the Senate), and 35 (serving as President) would seem self-explanatory, we have legislation setting forth appropriate documentation to establish date of birth.
The Presidential term limit is set forth quite explicitly in the 22nd Amendment, including the provision that “no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President” is eligible for a third term. But, absent legislation (and I’m unaware of any that exists), it’s not at all clear what would happen if someone tried to exceed that limit. It’s just never been an issue because it likely never occurred to any President since its passage to try. It seems reasonable, though, that it’s not up to Colorado to figure it out.
It would be clearly preferable if Congress were to pass enforcement legislation that established explicit procedures for resolving disputes under Section 3, including setting the burden of proof and creating timetables and deadlines for filing challenges and hearing appeals. Establishing a uniform process is better than living with a patchwork of state proceedings. But the fact that Congress has not acted should not effectively erase the words from the constitutional page. Chaotic enforcement of the Constitution may be suboptimal. But it’s far better than not enforcing the Constitution at all.
While I don’t think consequentialism has place in a Supreme Court ruling on Constitutional law, I agree with them and disagree with French on the consequences. It simply makes no sense to me to allow states to decide, ex post facto, what constitutes an insurrection and then ban candidates from the ballot upon finding that they participated. It’s far, far better for Congress to do that prospectively.
Alas, I agree with WaPo’s Philip Bump that “The institutions of government aren’t going to protect democracy.”
The superficial agreement on the decision erodes in the details, which isn’t uncommon. The result, though, is that the institution of the Supreme Court has decided that the institution of Congress is the only element of the American system that can apply the 14th Amendment to a candidate. And Congress, very obviously, won’t do so for Trump.
One would assume that a democratic system predicated on checks and balances would have some process in place to enforce punitive measures when democracy itself was threatened or undermined, but it does not. It has decisions from motivated actors, enough of whom agree politically or ideologically with Trump that his specific actions are waved away. Instead of a defense of democracy, we are repeatedly asked to believe that anything short of Trump retaining power doesn’t count as a substantive challenge to democracy and, therefore, that his participation in the democratic process should be defended.
Had he retained power after Jan. 20, 2021? Then, perhaps, his efforts to do so would have been considered a legitimate threat. And by then, the system that we would assume might hold him to account would already be destroyed.
To be clear, the institutions could do these things; they simply won’t. As already noted, the then-Democratic-majority House impeached Trump for his actions surrounding the riots. Not enough Senate Republicans were willing to vote him guilty. Congress could pass legislation declaring, based on the January 6 Committee findings, that Trump and others who abetted the attempt to steal the election are insurrectionists under Section 3 and thus barred from holding office in the future. They will not.
Our system—any system, really—i predicated on honorable people holding high office. A democracy requires engaged citizens to ensure that they elect honorable people. If those conditions don’t hold—when citizens prefer demagogues to honorable men and politicians value their position over their honor—the system fails. Ben Franklin was on to something, after all, when he declared the Framers had given us “A Republic, if you can keep it.”
I may be wrong, but can’t the Civil Rights and Voting Rights acts be attributed to the enabling section of the 14th? Jim Crow effectively thumbed its nose at the equal rights and due process guarantees, and spawned Plessy’s separate but equal declaration that gave a SCOTUS blessing to discrimination. It could be argued that the drafters of the 14th added section 5 with the assumption that bad faith actors will always be with us, and that from time to time, their specific acts of bad faith would need to be specifically addressed.
The SC was never going to allow the states to toss trump off the ballot, the subsequent protests are, by and large, wasted digital ink. Now imagine what this AM’s Memeorandum page would have looked like, if the supremes allowed the states to toss trump off the ballot. Then imagine the howls when the Wisconsin legislature, that has a R super majority banned Biden because, reasons. In the tidy world of constitutional analysis, there is sense in not looking at the consequences, but that’s not the world we live in.
When we have a sane Congress again, controlled by adults, we need to pass laws clearly addressing this. Perhaps we could create a crime specifically for Section 3 offenses, allowing prosecutors to attach it to other charges where appropriate.
@Charley in Cleveland: Yes, the various CRAs are Constitutional precisely because of Section 5.
@MarkedMan: One hopes that insurrection, much less voter enthusiasm for insurrectionists, will not continue to be a problem. But, yes, there clearly needs to be legislation clarifying what constitutes “insurrection” under Section 3. I don’t know that criminal conviction needs to be the standard but there has to be a standard that’s knowable ahead of time.
Since we are now a country where norm breaking is rampant, the response is increasing and stultifying legal and bureaucratic remedies.
Imagine a State where the prevailing political powers claim increasing state sovereignty over their own affairs (e.g., my home state of Texas). I can totally see where they review the Supreme Court decision and respond: We are not disqualifying this candidate, we are just not publishing his name on the ballot.
Ridiculous, sure. But possible in this day and age. Also, sure. Because the remedy is federal takeover of state election machinery. See how that goes over.
I agree with this, to a point.
I don’t think it is SCOTUS’ role to solve the problem of Trump.
I do however think that it is SCOTUS’ role to take more seriously the broader issues at hand being raised by Colorado rather than punting on the issue.
I would add that their unwillingness to expedite the immunity issue reinforces, to me at least, their shirking of responsibility.
Even if they think Trump is fine and dandy, they could be providing one hell of a whole lot more clarity than they have. Instead, I think that they are contributing to a potential very serious constitutional crisis.
I find it hard to believe that several law professors, retired judges, and the Colorado state supreme court, all failed to notice section 5 of the 14th amendment.
BTW, I don’t think that the age and citizenship requirement comparisons are canards.
I think they are identical in formulation, if you are X you are disqualified. The issue is that the age requirement is incredibly easy to interpret and insurrection is harder. But make no mistake, the states can determine whether a candidate qualifies based on age and bar them from their ballot.
Citing a parade of Democrat hacks who defended FISA abuse.
NeverTrump Republican David French defender of FISA abuse.
I find it totally believable, after Judges created immunity for the law enforcement caste violating rights and suspended the Constitution for Covid
Allowing states to enforce Section 3 for federal candidates could result in a scenario in which “a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record),” the court warned. And that could create a “patchwork” that could “dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times.” “Nothing in the Constitution,” the court wrote, “requires that we endure such chaos.”
Lmao, the same patchwork is what animates conservatives. There was no way the court was going to rule otherwise, but you have to be dense to believe any of the rhetoric they all more or less signed onto. I guess the decision was wise, if you thin wisdom is something like giving in to a toddler’s tantrum.
I think there have been a couple decisions in the past couple years where the majority has basically said the law can’t apply because GOP grievances are above the law. With OSHA, for example, not being able to regulate workplaces on a political matter. This is basically a 9-0 decision which replays the same thing. Probably wisely, I guess. Unlike OSHA and vaccinations, Colorado should not have done this. It was a pointless error, and there was no other outcome.
After years of tortured arguments about originalism and textualism we find out they are consequentialists. I never had any doubt they would find some reasoning to keep Trump in the race. While I actually think it is the right thing for the country I have very little respect for SCOTUS as an institution that interprets the law.
Steve
@Steven L. Taylor: While I’ll reserve final judgment until I see the opinion, I fully concur that it looks like SCOTUS punted on the immunity issue precisely to make it a moot point for this election cycle. That’s highly problematic.
I think “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” is sufficiently murkier a category than age or citizenship to be a different animal entirely. (And even citizenship has had to be defined by legislation as our lives got more complex.) In the former cases, state officials are merely executing a function, not coming up with a novel interpretation post hoc. If the requirement were something more vague, like “attained sufficient maturity for the office” or “demonstrated undivided loyalty to the United States,” I don’t think we’d leave the ball in their court.
Perhaps it’s too cumbersome to allow states to keep traitors to the United States off the ballot, but who then will do it if Congress refuses?
I suppose we just need to give Russia the nuclear codes and be done with it.
The fact that the 5-4 sub-majority includes Clarence Thomas delegitimizes it. His wife most certainly was involved with the insurrectionists and could be directly affected by this, and if we believe her own words, her husband was also actively involved.
I think “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” is sufficiently murkier a category than age or citizenship to be a different animal entirely.
It is more complex rather than murky, and you can argue that the interpretation is correct or incorrect. But ‘insurrection or rebellion’ has a set of specific meanings, and using it in the 14th Amendment puts those meanings into play just like age or citizenship, even if the historical intent was against the Confederacy. Surely the writers of law understood that other insurrections and rebellions have happened and might happen in the future.
If they had said no ‘unhappy’ that would be murky. Or ‘rebellious’, perhaps. But ‘engaged in rebellion or insurrection’ is a rather clear concept. Just because Republicans can raise a bad-faith argument that anybody is engaging in rebellion does not mean it’s unclear. The ability of power to twist words is not the fault of the words.
@James Joyner:
And given the political ramifications of the delay of Trump’s trials–including setting up the real possibility of a conviction between the election and the inauguration–that’s going far beyond “calling balls and strikes” and going into “putting the thumb down on the scale to support one political party over the other one.”
It’s a punt that also sets up potentially far worse consequences down the line.
So the same court that allows partisan gerrymandering, which disenfranchises voters in that state, feels that the same state can make rules about one individual’s ballot access. Not the party mind you, just one person. I think they need to get their priorities straight.
Then next thing you know they will conjure up a new unearthed rule, found no where in the constitution, that no one running for president can have a trail after the convention.
Prepare for impeachment to be replaced by “ineligibility declarations”, because while it’s basically impossible to get 2/3 of the Senate to agree to convict someone, you only need 51 Senators to pass a bill. And prepare for “refusing to seat” to become an annual tradition – along with copious cases where our newfound Government Approval Court will need to weigh in.
A few observations.
First, I find it interesting that there was no comprehensive ‘originalist’ discussion of the relevant sections of the 14th Amendment in play here in the Court’s decision.
Second, the fundamental problem is that about 45% of the ‘popular vote’ country believes that the January 6th insurrection was justified.
Third, this feels like the end of an era, the way perhaps it might have felt back around 1877 when America gave up, appeased the ‘Confederate States,’ and pulled the plug on Reconstruction, which set back progress on race and civil rights for another 80 years. But these days controversial issues are cloaked in religion and disingenuous originalist interpretations of the Constitution. Dark times.
I love the Salt from the Democrats and their Communist/Socialist allies.
Clarence Thomas drug his nuts across the Colorado, Maine and Illinois Supreme courts.
Atrios has the most practical response I’ve seen to this farce.
The only tiny good that can be squeezed from this is further loss of respect for a Court that deserves none.
Good post.
A few points.
My basic view is that Congress needs to define the scope and terms of “insurrection” for the purposes of the 14th Amendment. What is the standard for defining that term, for adjudicating whether someone’s actions meets that definition, what level of due process is required, etc. What is needed is for Congress to make it crystal clear so that everyone understands what constitutes “insurrection” under the 14th Amendment.
I think this is a pretty good way of putting it:
I would also go back to the “natural born citizen” clause as an example. “Natural born citizen” is extremely vague. Congress understood it was vague which is why they defined exactly what it means via legislation in 1790. There is now no doubt about whether someone meets the requirement or not and it is easy for a court to fact-find on that question and determine whether someone meets that standard or not. Let’s say we didn’t have that law and we go back to McCain running for office. You’d have the same situation where a bunch of states in a bunch of different ways would make up stuff on the fly to conclude that McCain isn’t a “natural born citizen” because he was born in Panama, and then apply it to him to try to keep him off the ballot. That would also be a failure of Congress to do its job by not defining what “natural born citizen” means.
The same goes for age, except you don’t really need legislation in that case because age is black and white. There’s no gray area in determining whether you are 35 or 34. The only question is what evidence exists to prove how old you actually are.
And while IANAL, I think all the court has done here, is told Congress that they need set a standard and that it’s not up to the courts to do all the work to fill in all the missing details from Section 3.
The final point I’d like to make on this is the dissonance among the many people who simultaneously speak in hagiographic tones about democracy and how it is teetering on the edge but, at the same time, openly entertain and support anti-democratic moves like disqualifying political opponents via novel legalistic means. The kind of moves that Putin’s Russia and most authoritarian countries make. Disqualifying political enemies via legalese is one of the oldest tricks in the book and my view is that should be a high bar to cross and by a 9-0 decision, the SCOTUS agrees. If you’re on the other side of that decision, you probably ought to rethink things.
The dissonance includes people who have spent years complaining about “activist” judges and evil of “states rights” who now argue in support of states rights to unilaterally decide what insurrection means and whether candidates meet the standard they’ve chosen. They are suddenly arguing for originalism and textualism even though, IMO, their position doesn’t support either of those. One can’t legitimately lament the loss of norms in our society, but then justify burning down the village to save it.
@Steven L. Taylor:
While I agree, it should be noted that is the latest in a very long line of much more significant delays. It was always going to be a challenge to get the trial done before the election, considering all those previous delays. DOJ took something like 2.5 years to bring the initial indictment. That alone put this case on a very tight timeline if one’s goal is to get to trial before the election. On the motion the SCOTUS will decide on, the judge and DC circuit combined took at least six months for their part, maybe longer (I forget the exact times and don’t have time to look them up). At an estimated 2 1/2 months, SCOTUS will be at the shorter end. And even if they expedited, it’s not likely the trial would happen before the election anyway.
@Steven L. Taylor:
This plays out in the news every day. That Biden is 81 is a matter of public record. The more relevant observations that Trump is an obese sociopathic insurrectionist with scalp surgery and lifts in his shoes who is losing it mentally requires some small bit of interpretation.
@Modulo Myself:
That. ‘What if the gerrymandered WI lege declared Biden an insurrectionist and banned him from the WI ballot?’ Then the Supremes would have to do their damn jobs and find that WI had no proper grounds for doing so.
@Andy:
Yeah, no.
Look at actual authoritarian dictatorships. They don’t disqualify 1 (one) candidate in one (1) election, but rather scores to dozens of candidates in all elections. They also don’t resort to one reason, but many. And often using laws, statutes, or provisions that are distressingly vague and incredibly broad; not to mention these were often promulgated after the authoritarian takeover.
Moreover, it’s not the government that’s trying to disqualify Lardass. Biden didn’t bring any petitions, lawsuits, charges, etc. to disqualify his opponent in Colorado, Maine, Illinois, or anywhere else. Neither did state governors, nor secretaries of state.
We might more closely experience the difference in 2026, should Lardass win.
@Andy:
The Court had several opportunities on the immunity issue to act with substantially more speed than they have and it is rather impossible to see it as anything other than deliberate foot-dragging.
I would note that they could have drug out this CO ballot issue, but chose not to.
@Andy:
Or, you might be willing to respect that it is possible to have a different view on these things.
Speaking for myself, it is far less than I expected SCOTUS to disqualify Trump here, but I think we deserved more than a mix of garbled views of how states function in the electoral process and punting to the legislature.
I honestly would have liked to have seen the alleged originalists and textualists struggle a bit more with the intellectual implications of their own alleged views (not to mention Roberts show us how this fits into his previous views of state powers in the realm of elections).
If they are going to be Principled Sages then show us the sagacity.
I don’t think I have to be a Putinesque authoritarian to expect these things.
@Modulo Myself:
This, but some prefer to play naïve — pretending we didn’t in real time watch Trump incite a terrorist mob against Congress to on Jan 6 — rather than admit the court’s conservatives publicly lied about being textualists and originalists who hew to precedent, aren’t controlled by outcomes, oppose legislating from the bench, and practice judicial restraint not novel interpretation of a living constitution.
If Donald Hussein Trumphammad had sent a group of raging brown Muslims to assassinate politicians on Jan 6, no one would pretend this act of insurrection and rebellion was “murky.” But our legal system must twist itself into knots to excuse the criming of rich, well-connected Caucasian males.
David French and Mark Stern, no ideological twins, are right that this should have been resolved with a simpler due process argument: Colorado, Illinois, Maine etc have not allowed Trump to complete a robust defense via established legal processes.
That would have been less dangerous than greenlighting future insurrection, via the fake originalists/textualists unilterally amendending the insurrection clause to force their preordained outcome — actions they claim are judicial anathema.
Those who wrote the 14th Amendment removed language limiting it to civil war Confederates. Congresses of the era declined to pass legislation clarifying the language therein — because it’s not necessary. The words there are there for a reason, and those words have meanings.
So yes it is novel to look at those words 160 years later and pretend all of the sudden the meanings are “murky” to separate them the rest of the Civil War amendments and presidential requirement as uniquely needing congressional action pursuant to Section 5. I guess the previous 16 decades of courts and Congresses just missed it?
And, by the way, saying new federal law is required before the insurrection clause is actionable is itself a due process argument, albeit a more complex one. So the actual canard here is arguing for that new and novel interpretation of said clause while insisting “due proceess has nothing to do with it” in regards to simpler, less damaging due process arguments.
@Steven L. Taylor:
On the contrary, they waited until the last possible moment. The Colorado Supreme Court decision was on December 19th, 2 1/2 months ago. The Colorado Court paused the decision from taking effect until January 4th, and the SCOTUS didn’t formally take the case until January 5th – the last possible moment.
Their decision came at the very last possible minute – the day prior to the formal election date here. But that was still too late in many respects since ballots were already printed and mailed weeks ago – and this being Colorado, a vote by mail state – after a substantial number had already been filled out and returned. Had they ruled differently, it would have been a very big problem.
SCOTUS could have moved much faster on the Colorado case, but it acted when hard deadlines forced it to and did not decide the case before ballots were printed, mailed, and returned by voters.
@Steven L. Taylor:
Yes. The outcome of the case was both inevitable and necessary. I don’t think anyone should complain about it. In contrast, how the majority got there is open to criticism.
Likewise, the conclusion that Congress needs to set the scope and procedure for enforcement of the insurrection language is also correct.
The absence of the usual originalist style and Roberts seeming to break with his previous stance on the electoral role of the States is frustrating. Perhaps more infuriating is the Court kicking responsibility to Congress while simultaneously warning against the chaos sewn by “patchwork” electoral processes.
Indeed, much of the dysfunction in the Capitol is enabled by the fact that we have an inexplicably patchwork system of federal elections that pretty much guarantees that Congress won’t be able to act. That patchwork nature creates the incentives for individual elected officials to resist substantive electoral reform.
@Steven L. Taylor:
This is correct–in particular because Smith asked that they expedite the process and skip the circuit level and address the issue themselves.
I agree that the DC Circuit took far longer than most analysts expected to release their decision in the case. “Longer” is a relative term in this case, as it was still a faster turnaround for a federal decision than most take.
Looking at the unanimous decision that was authored, it appears that much of that time was spent crafting a decision that should have been able to stand on it own (i.e. wouldn’t need to be taken up by the Supreme Court).
If the Supreme Court intended to put their mark on this case, they should have done it from the start. And given the nature of how narrowly the DC circuit decision was crafted, it seems likely that this is a case where the SC always wanted to be the last word on this.
@Kathy: level Democrat logic.
Now This Clarifies Yesterday’s Stupid Supreme Court Decision … Turns out they don’t like death threats!
This is MAGA country!,
@Steven L. Taylor:
I’m merely pointing out, for those who view the people on the court as partisan actors and were hopeful of a Trump disqualification, or at least hoping the liberal justices would vote that way, that a 9-0 decision on this ought to get them to reconsider their priors.
I don’t think the message is garbled at all – what was garbled was the message of the advocates who wished the SCOTUS had ruled differently. That message was what, exactly? That section 3 was “self executing” and therefore, states had the power to disqualify candidates based on whatever “insurrection” criteria they want? That is what is garbled.
And what about candidates already in office? As the court notes:
So why do states have the authority to enforce Section 3 only against candidates for office, not people actually in office? Reasons apparently. More garbled logic.
If you’ve read the actual decision, the arguments are clearly rooted in textual and originalist logic.
First, they note the entire point of the 14th Amendment is to restrict states rights and authorities. Therefore, the originalist/textualist interpretation of the Amendment would suggest that it wouldn’t grant states a new “silent” right.
Secondly, Section 5 grants Congress—not the states—the authority to pass appropriate legislation to enforce the provisions of the Amendment. By contrast, nowhere does it say states have that authority.
Third, the Court cites contemporary (ie. original) sources to help determine the intent of Amendment.
There is more there.
@Kathy:
It’s a difference of degree.
My view is that it’s incompatible to claim to support democracy while also supporting novel legalistic efforts to disqualify a popular political opponent after they’re already a candidate.
It’s one thing to have a set of rules in place before an election, which you then apply to candidates in that election. One would hope that such rules are themselves the product of a legitimate democratic process.
It’s quite another to utilize a form of lawfare in the midst of a campaign using undemocratic means to get an opponent disqualified.
@Andy:
So, the 14th amendment does not qualify as a rule in place?
How about the 22nd amendment, No person shall be elected president more than twice? True, no one has tried to get a third term since the 22nd passed, but no one who engaged in an insurrection has run for president before.
@gVOR10: There’s also a distinction between facts and conjecture/perception/opinion between your two examples. I don’t disagree with any of your conjectures about Trump, but others claim to.
@Matt Bernius:
I don’t disagree.
I would just point out again that the DOJ didn’t indict Trump until last August. It’s not uncommon for the entire process from indictment to trial in a high-profile criminal case to take from one to several years, and this is a super high-profile case. The highest of high profile.
I understand there is a strong desire for expediency for both legitimate but also purely partisan reasons, depending on the actor.
But I think it was always aspirational that this case would be resolved before the election. Consider the OJ trial – a high profile celebrity trial. Just the trial portion alone took 8 months for what was a fairly straightforward murder case.
This trial is going to be a lot more complicated with a lot more question that will need to get resolved.
In my view, the classified documents case is by far the most cut-and-dried case against Trump and it should have been given the priority, but it’s too late for that now.
Not directly germaine to the topic, I shared this on Post News his morning:
And here we are…
@Kathy:
Of course it does. It’s not novel for an insurrectionist to be identified as such, in violation of thise rules. Nor is it novel for a career criminal like Trump to be held accountable. What’s novel is a criminal insurrectionist running for president despite his crime spree, and the electoral and legal systems bending over backwards to accommodate him despite his thuggery.
Trump is deservedly, predictably, and belatedly facing the consequences of his persistent criminal choices — including him sending a violent, terroristic mob to sack Congress on Jan 6 and disrupt the transfer of power, a clear act of insurrection despite all the gaslighting pretense. He is not a victim of the legal system because he chose also to run for president again to try to make himself immune to prosecution.
@DeD:
I don’t why autocorrect keeps capitalizing “germaine.”
@DK:
I kind of keep expecting someone to claim the Democrats forged the Constitution to keep Lardass out of the race.
Lardass and enablers are already claiming al criminal charges are meant to keep him from winning the election. never mind he was charged and indicted before he formally declared he’d run, and never mind he actually committed the crimes he’s been charged with.
Some days the world simply makes no logical sense.
@Kathy:
Yes, it qualifies as a rule, but only in the broadest sense, with none of the details necessary to make it workable.
At the end of the day, you’ve got to have some standard for evaluating and adjudicating claims that a candidate is disqualified by Section 3. You’ve got to have some standard for what the legitimate process should be to determine that and who gets to make that determination.
So what is that standard? Or what should be the standard? Who gets to decide when a candidate is disqualified? State Legislatures? State Secretaries of State? State Judges? State juries? A State Supreme Court? A Federal Judge? A Federal Jury? A Circuit Court? SCOTUS? Congress? Which is it?
No one seems to want to talk about that.
The idea instead seems to be that Trump is guilty of insurrection and, therefore, whatever happens to be the expedient means to disqualify him under the 14th Amendment is acceptable, whatever it is.
If that’s the hill you want to die on, then fine, but don’t claim to have also democratic principles if your rationale for wanting to disqualify Trump rests on ends-justifying-means.
@DeD: Here we are, indeed! And has anybody mentioned that we have me the enemy and he is us?
@DeD: Maybe in honor of Germaine Greer? AI keeps showing us that it’s not particularly skillful at context and nuance.
@DeD:
I think because Germaine is a proper noun, and germane is an adjective.
@Kathy: I’m losing my touch. I missed that part.
@Kathy:
It’s definitely time for the country to re-up on Thomas Paine’s “Common Sense.” We’ve definitely entered the gaslighting stage of Trump normalization, where you’re supposed to pretend Trump’s actions on Jan. 6 are oh-so confusing and murky — that you didn’t see and hear what everybody saw and heard.
And that his choice to run for president after committing a bunch of crimes means Trump is somehow a victim of an undemocratic plot and a legal and social system that would have already ostracized, excommunicated, imprisoned and/or disqualified any black or brown man who tried to end representative democracy as he did. Poor Trump.
Madness.
@James Joyner: But, absent legislation (and I’m unaware of any that exists), it’s not at all clear what would happen if someone tried to exceed that limit.
In Maine, the “Gordon Challenge” contested Trump being on the ballot under the Twenty-Second Amendment, because he won election in 2016 and again in 2020. Trump was ruled ineligible by the state of Maine because, wait for it, Trump actually lost in 2020.
From Amy Comey Barrett’s mini-opinion:
This is a political judgment, not a legal one. “[T]his is not the time…a politically charged issue in the volatile season of a Presidential election…” A system of law and order, as well as its expression through independent courts, is based on the notion that the law applies, even if, say, a significant amount of the population will get really, really mad about the result. Also, “now is not the time” also has no boundaries, as we have seen with the incessant excuse for not passing gun legislation, which uses the same weasel words. The issue will always be politically charged. The nation will always be divided.
Again, Judge Barrett is making a political justification, not a legal one. And as arguments go, it’s a pretty cowardly one.
@Andy:
So how do you feel about Judge Cannon’s ruling, based not on the law, but on applying a DOJ policy as if it were law? Seems to fall under the category of making things up on the fly.
@Kathy:
Schooled.
@Kingdaddy:
Which ruling are you referring to?
@DeD:
Sometimes the autoincorrect gets it ducking right.
@Andy:
When you claim there needs to be a rule, and then rationalize how the rule shouldn’t be applied, you’re moving the goal posts.
@DK:
Oh, indeed.
He held up reinforcements, for one thing. His own supporters and enablers in Congress were telling him to call the insurrectionists off. When he eventually told them to leave, they did.
It’s as murky as plate glass fresh off the factory.
@Kathy:
I’m not rationalizing how the rule shouldn’t be applied. I’m saying there should be a single standard for how it should be applied, which is what the Court says Congress should do.
The standard is where the goalposts are set. I’m not trying to move the goalposts because the problem is that no one knows where they are. The whole purpose of these court challenges is to try to see where the Section 3 goalposts are actually set, and the Court has done that. You may not like that they put them further from the ball than you hoped, but it is not the case that I’m moving them around.
On the contrary, I’d like to define exactly where they are, if possible. That can’t happen when each state and potentially any court or judge can put the Section 3 goalposts in a different spot.
I don’t have strong views about what that standard should be, only that there should be one. What is your opinion? Should there be a single standard or is Section 3 interpretation like Justice Potter Stewart’s view of pornography?
@Andy:
This is maddening. There shouldn’t be a national “standard”. We don’t have national elections. We have 50 different STATE elections. The Supreme Court, once again, went against the plain language of the constitution to impose their favored political outcome.
US supreme court ‘erred badly’ with Trump ruling, leading US historian says
If Trump Prevails, How Will Section 3 Be Litigated On Or After January 20, 2025?
In 9-0 Ruling, Supreme Court Justices Bend Toward Trump
The SC really went overboard on this decision. They weren’t satisfied ruling 9-0. The Conservaive majority, minus Barrett, decided they needed to lay out under which exact circumstances one would be disqualified, while wholly ignoring the facts in front of them. The overwhelming majority of legal scholars and legal analysts have come out against the decision. Look it up.
@Andy:
States aren’t even constitutionally required to have votes for president in the first place. It shouldn’t matter if different states apply things differently because this is a federal system. Some states have all mail in voting, some states don’t. Do you think all 50 states have the same exact criteria for getting placed on the ballot?
I would love for the presidential election to be nationalized. But that’s not what we have. We just have a bunch of hypocrites on the court that want congress to use the fourteenth amendment to pass laws for some things, but then says congress cant pass laws for other things like the parts of the voting rights act they killed.
@EddieInCA:
Pure Amanda Marcotte (see her newsletter today) level Bad Faith.
@EddieInCA:
So there shouldn’t be national standard for age or for the definition of “natural born citizen?” A state can just define these however it wants?
Yes, we have 50 state elections. That doesn’t mean we can have 50 or more different interpretations of requirements that are listed explicitly in the federal Constitution for federal officials.
By 9-0 – what political outcome did all 9 want exactly? And one could turn that around – it’s clear many of the people angry at this decision are angry not because of closely held judicial or procedural principles, but because they didn’t get the political outcome they wanted.
Well first of all, I agreed with the liberal dissent, the conservatives should not have addressed something they didn’t need to address, but secondly you are wrong, the conservatives did not lay out the exact circumstances one would be disqualified; they said those facts need to be put by Congress into legislation.
And the reality is that is what would have to happen anyway. Other than attempts in the federal courts, which would wind back up in front of SCOTUS anyway, there is no other avenue except through Congress. Which is where is should be, unless one hates democracy and prefers things be decided by unelected judges.
@Andy:
And we’re merely pointing out that the actual arguments advanced — the rationales behind those 9 identical votes — shout to the hilltops that this decision was made on the basis of what outcome was desired, law be damned. The pretexts provided in the opinions could not be any more transparent. That they all reached the same conclusion is irrelevant — it’s the manner of the deciding that is important, and bodes very ill for democracy.
@Andy:
If the Supreme Court can’t decide this, as a question of fact, in order to adjudicate the Colorado decision, then WTF can? That’s literally what they are for. And yet…
@Andy:
Citizenship is a federal matter, as stated in the 14th amendment (what an amazing coincidence!): All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
If it were a state matter, like running an election, then they’d have a right to define it.
@DrDaveT:
The problem, as I see it, is that Section 3 has nothing to say regarding its application and the mechanisms for enforcement. Section 3 is unlike almost all of the other self-executing provisions of the Constition which are about individual rights or the powers and structure of government. The 4th Amendment, for example, is easy to self execute because that just means people have the inherent right to inoke the 4th in court – legislation is not required to enable the right to do. By contrast, Section 3 says nothing about enforcement. Where is the self-execution for enforcement? Or all the other necessary things to, as a matter of practical reality in the real world implement the provision?
Now, I suppose it’s true that the Supreme Court to figure out all those details and give them the authority enduring, unchangeable authority and character that comes from their rulings. Is that really a good idea? Is that really in their skillset? To me, that’s the very definition of judicial activism. To me, that activity is entirely what Congress is supposed to do.
IMO, it’s up to Congress to do that.
Well, I disagree. I think the strength of the advocate’s case was played up far too much, raising expectations far beyond the merits.
And I don’t see how this bodes ill for democracy, especially compared to the alternative.
@Kathy:
That is for general citizenship.
What I’m talking about are two other Constitutional requirements for the Presidency—age and being a “natural-born citizen” as stated in a different part of the Constitution:
This clause is why Arnold Schwarzenegger is a citizen under the 14th Amendment but can never be President.
QED
@Andy:
And the rule about age requirements does? Or being a natural-born citizen? Neither of those offers an enforcement mechanism. That can’t be your real objection.
So, on the one hand you argue that the law is not so crystal clear as to not require interpretation. Then, you argue that interpreting the law is somehow “not the skillset” of the Supreme Court. Sorry, no. This is special pleading. The entire purpose of the Supreme Court is to be the final arbiter of what the law actually means. Punting that back to Congress is a cop-out.
As others have noted, actual experts in constitutional law side with me on this one. You are entitled to your opinion on this, but you are not entitled to have the rest of us take it seriously.
@Andy:
Sorry, I missed the explicit statement of the enforcement mechanism for that. Could you please point to it?
I’m going to bow out of this debate now.
I will just say that I find it very strange to see so many OTB regulars arguing for the opposite of what I’ve seen them argue over the last several years.
In particular, I remember the strong support for the “For the People Act” which was legislation that specifically shifted a lot of election-related items out of state control, attempted to implement national standards in many areas of election law, and was also overly extreme in many provisions such that even the ACLU opposed it. Parts of it were very likely blatantly unconstitutional. Yet few here were deterred by such things.
Moreover, the general gist of commentary (and correct me if I’m wrong) is support for less state control over election and voting law and more central control under the federal government.
But suddenly, states rights is back in fashion. State control of elections is a sacred norm that the courts should be deferential too. The complaints about judicial activism are gone – instead, replaced with arguments that courts should figure out all the details. Established liberals in this comment section are criticizing SCOTUS for not ruling in a sufficiently originalist and textualist way, and getting tons of upvotes.
Did everyone suddenly stop caring about the goal of bringing elections under the thumb of federal authority? Don’t try to deny that it has been a long-term goal, and one that I support with some major caveats. Would this be happening if it wasn’t Trump in the crosshairs?
I don’t think so.
I would encourage everyone to look at the big picture and also the long term. This decision, IMO, is likely to be a huge win for your pre-Trump goal of federalizing elections and diminishing state power over the same. Pick your metaphor – camel nose under the tent, chink in the armor. The Supreme Court, here, ruled definitively against state authority in federal elections. And yet people complain.
This is an example of how Trump twists everything and makes everyone crazy. If this ruling happened in any other context but Trump, liberals would be celebrating the fact SCOTUS just made a ruling that definitively cemented federal authority over states in elections, even if the context was just Section 3. Conservatives would lament the loss of state autonomy and the eroding federalism and traditional role of states in our election system.
But since this is all really about Trump, it’s precisely the opposite. Liberals lament the fact that their opportunity to kneecap Trump via the courts was stymied. Conservatives (actually MAGA populists cosplaying) cheer the decision because whatever is good for their hero they support.
The more old-school conservatives, along with libertarians—think David French and Ilya Somin—have been firmly with the liberals on this issue, but only because the liberals suddenly decided that state rights are super important and that states should have carte blanche in managing their elections on this one single aspect of election law. The principled people on either side have actually been consistent and haven’t done this weird 180.
Despite many here believing I’m a conservative because I appear to be to the “right” of them, I don’t agree with French and Somin on this issue even though I respect them for being honest in their principles. People here who know me know I often talk about objective standards, and that is where I am at when it comes to this as with most anything else. And my view is that since the requirements are defined in the Constitution and are therefore by definition federal standards, then they ought to be – in fact and reality – federal standards, and that certainly includes section 3.
@DrDaveT:
Let me spell it out for you then. The status of age and being a natural-born citizen don’t change. They are blocks on a form that need to be checked, and once they are checked never need to be revisited.
Insurrection is not a block on a form, it is something that can come up at any time, that could need to be evaluated at any time, including while someone is in office. So – quite obviously – you have to have procedures for dealing with that. And for conduct that happened prior to taking office, you need to have some kind of standard for what constitutes insurrection for the purposes of Section 3. That definition ought to apply to everyone, not piecemeal based on what some random judge says. And then you probably want to consider all the basic process questions related to determining the final judgment.
None of that you have to consider with age or natural born citizen. And you don’t have to consider it with the natural born citizen clause because Congress passed a fucking law defining what natural born citizen actually means so there would be no doubt – it was not left to the vagaries of the courts to decide and states can’t make shit up for themselves. Which Congress didn’t do with Section 3 – which is what – IMO – it needs to to.
Here’s an analogy: Let’s say the Constitution says no murderer shall be allowed to serve as President. Do you really expect the Supreme Court to define and codify all the parameters, situations, and edge cases for that? Do you really think there is no role here for Congress in defining and filling out the gaps in what “murder” means in terms of that provision? Do you actually want this conservative SCOTUS to fill those gaps instead of Congress?
Talk about special pleading. Both sides have their experts. To claim that all of them are on your side is specious and is the appeal to authority fallacy.
@Paul L.:
@James Joyner:
I have to admit that until the last half hour, I had not really thought much about it either. My initial post in this thread expressed the opinion that the outcome of this case is probably correct even if I have qualms with how the majority reached it. At a minimum, it’s likely the best approach from a political perspective, considering the prodigious ability of people, particularly politicians, to act in bad faith.
But after some research, I’m less sure of the legal reasoning. After reading “Amnesty And Section Three Of The Fourteenth Amendment” I’m beginning to lean the other way–that the legal basis of the decision is shaky. No matter what, the decision, 9-0 vote notwithstanding, is dangerously underbaked. If pork is an ingredient in this pie, we should all be watching out for symptoms of trichinosis.
One thing I’m sure about: merely pointing to S5 and concluding that its inclusion means that S3 cannot be self-executing is insufficient. The quote at the bottom is from my link. I highly recommend at least scanning the entire piece.
Moreover, one cannot take a textual reading of S5 and argue that Congress must define insurrection as well as specify procedures for adjudication without admitting that every Congress subsequent to ratification has not fulfilled their Constitutional mandate, because “shall” imposes a duty. I thought of a counter-argument here, but I’ll leave that to you guys.
The fact that we are having this discussion in 2024 suggests that reading S5 as self-executing makes far more sense than claiming it requires something Congress has failed to do for a century and half.
The link is long, so I will limit myself to highlighting footnotes 99-101:
@Andy:
So much for “bowing out” now. 🙂
The status of age and being a natural-born citizen are facts. The status of being an insurrectionist is also a fact. Where there is dispute about the facts, we have courts to establish the facts. The Supreme Court is the highest such authority. Their purpose is to establish, authoritatively, the facts as they relate to the law. They are not “some random judge” — they are, in theory, the exact opposite of “some random judge”.
Of course not — that’s not what courts do. Do I expect them to rule, in a specific case given specific facts, whether or not a given person is a murderer? Absolutely. That is, exactly, what courts do.
I would not have dared to parody your position thus. Thank you for saving me the trouble.
@DeD: It’s a proper name. I have a cousin named “Germaine.”
@Kingdaddy:
I’m reading this differently. I see her calling for caution in language (and thus taking a swipe at the liberal concurrence) and in reach (agreeing with the liberals that the ruling that the states had no power to enforce Section 3 was sufficient and that there was therefore no need to spell out who did).
SCOTUS torched the Constitution for a demented, stinky sociopath.
Small comfort. Still, fascists don’t get the strong leader they want, but this decompensating weirdo.
@Andy:
I know you said you were bowing out. In case you check back I wanted to say I totally agree with you that part of this situation definitely rests at the feet of DoJ.
While I think some of this needed to be carefully persued, and there was a logistical challenge created by all of the Jan 6th prosecutions, Justice definitely slow walked this investigation and the appointment of a special prosecutor.
Ultimately I think a lot of those decisions were about the performance of apoliticalness more so than rising to meet the unique circumstances of the moment.