Just 109 words.
Whether Donald Trump can legally return to the White House will come down to how the Supreme Court interprets two rarely-invoked sentences written more than a century and a half ago as a battle-torn nation sought to recover from the Civil War.
Those two sentences make up Section 3 of the 14th Amendment, known colloquially as the insurrection clause. And on Thursday, the justices will publicly grapple with their meaning, as the court hears oral arguments on whether the provision disqualifies Trump from holding office again.
Colorado’s top court, in a bombshell decision in December, said Trump is indeed ineligible because of his efforts to subvert the 2020 election and his role in inciting the violent attack on the Capitol on Jan. 6, 2021. Scores of similar challenges are pending around the country.
Most legal experts expect the court — which is controlled by a six-justice conservative majority, including three of Trump’s own nominees — to overturn the Colorado decision and keep him on the ballot. But it’s far from clear what route the court might take to reach that result.
The justices have many options, ranging from a broad declaration that Trump is not an insurrectionist to a hyper-technical interpretation that a key phrase in the insurrection clause does not apply to Trump at all.
The argument begins at 10 a.m. EST, and live audio (but no video) will be available. Here are the key questions the justices will likely grapple with.
Does the insurrection clause apply to Trump?
Trump’s leading argument in the politically charged case is a semantic one: The president, he says, is not “an officer of the United States.” The reason that’s important is that the insurrection clause applies only to certain types of officeholders who took an oath to “support the Constitution” and then engaged in insurrection. In Trump’s case, the only way for the clause to apply is if he took such an oath as an “officer of the United States” when he was sworn in as president.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
I posted a link this this amicus brief a while back and it was deleted. Not sure why that happened, but I can only assume that maybe David was trying to keep the comments on topic to the original post. Assuming that's the reason, I can't imagine that this link (linking to SCOTUS's website) will be deleted now. The amicus brief is a brief in the Colorado ballot case.
ReplyDeleteAnyway, if you are an originalist, this amicus brief should really appeal to you.
https://www.supremecourt.gov/DocketPDF/23/23-719/295994/20240118094034746_Trump%20v%20Anderson.pdf
And this discussion is the very reason why there is no statute of limitations for war crimes...
ReplyDeleteLet the people decide man. This is the real coup.
ReplyDeleteat 11:22 - the people decided when we the people amended the constitution to disqualify individuals who have participated in an insurrection. This is no more undemocratic than excluding people born in other countries or who are under 35 years old from running for president - it's just the law.
ReplyDeleteThe people back then also decided some people were not people. That document is not a pristine version of democracy.
ReplyDelete@11:47 - the 14th amendment, which is what we are talking about, sought to correct the "some people were not people" problem.
ReplyDeleteBut indeed, the Constitution is NOT a pristine version of democracy. And the founders knew that and crafted the Constitution to protect against absolute democracy. The Constitution, for example, limits against a democratic tyranny of the majority's ability to impose religion, to limit speech, or to summarily convict people of crimes without due process.
The second founders (i.e., the folks who drafted and ratified the reconstruction amendments including 14th amendment) realized that there was a need to further protect the citizens from a possible tyranny of the majority. They understood that failed insurrectionists who had already violated an oath to support the Constitution might be able to gin up a simple majority to railroad the Constitution and systems put in place to protect individual liberties. So, they barred insurrectionists who had violated an oath to support the Constitution from holding office. And, they wisely created a safety valve in the form of Congressional approval for former insurrectionists to be relieved of their disqualification by 2/3 vote of each house.
The founders, and the second founders, got some things wrong. But we have processes in place to fix those wrongs. If you don't like Section 3 of the 14th Amendment, seek to amend it or write to your congressman and senator and ask them to vote to remove Trump's disqualification.
Phony bologna judicial activism based on nebulous concepts of "democracy" won't cut it. Lawyers, of all people, should know better. The Justices should call balls and strikes, practice originalism and strict construction, and affirm the Colorado Supreme Court.
"Let the people decide"? The whole point of Sec 3 of this amendment is not to let the people decide to give an insurrectionist power. The "let the people decide" solution requires us to ignore the problem.
ReplyDeleteHe should be DQd but based on the questions they are not going to do it.
ReplyDeleteIt’s like 3rd down and we are depending on Jack Smith before it gets to be 4th and 20. #GoJackGo
Trump Derangement Syndrome is in full force here.
ReplyDeleteSeems as if none of the justices shares your (undemocratic) view, 12:50 p.m.
ReplyDeleteLOL...2:26 is my favorite kind. Complete willful blindness. "Nothing to see here folks." And then tries to gas light anyone that isn't willing to go along with it.
ReplyDeleteHere is just one example, of some of the crazy shit Trump has done. On Jan 6, and while the Capitol was was being stormed, "when told that the mob was chanting, 'Hang Mike Pence,' President Trump responded that perhaps the Vice President deserved to be hanged. President Trump also rejected pleas from House Republican Leader Kevin McCarthy, imploring him to tell his supporters to leave the Capitol, stating, 'Well, Kevin, I guess these people are more upset about the election than you are.'" See Anderson v. Griswold, 2023 CO 63, 114 (Colo. 2023)(internal citations omitted).
The guy went on Twitter and organized a mob to arrive on Jan 6. He told that mob to march to the Capitol building and fight. The mob stormed the Capitol chanting death threats to the Vice President. And when implored to tell his mob to go home, he declined and instead said that maybe the vice president should be hanged.
How's that for fulfilling his oath to support the Constitution? You might want to read the opinion. Start around page 96 if you want to skip the procedural gobbleygook.
prediction 9-0 reversal
ReplyDeleteI would agree that removing Trump would not constitutional. But can we get a conversation about the hypocrisy of this court. Thomas and another justice stated it would be "chaos" if one state had this power to do this and not be uniform throughout the country. H E L L O. This court is always saying states have the right to run elections any way they want. They dont care if one state like Texas leads to an abortion pill ban nationwide. This Supreme court loves to proudly proclaim STATES RIGHTS. Yet when a state decides who can be on their ballot they balk? Was it not Roberts that said no federal court should be over ruling state Supreme Courts when it comes to how they run their elections? Really? Just wow.
ReplyDeleteSince most disqualified insurrectionists would be on the ballot only in one state, there is no way this clause did not intend for local determinations. The actual effect of being off the ballot in only some states is not as clear as people think. In a primary election, it might not keep the candidate from being the nominee. In a general election it sends a strong message to members of a party and its leadership that they are following the wrong vapor trail past the end of the flat earth and may want to bench the guy.
ReplyDelete