Excerpt:
It’s extremely difficult to square this ruling with the text of Section 3 [of the Fourteenth Amendment]. The language is clearly mandatory. The first words are “No person shall be” a member of Congress or a state or federal officer if that person has engaged in insurrection or rebellion or provided aid or comfort to the enemies of the Constitution. The Section then says, “But Congress may by a vote of two-thirds of each house, remove such disability.”
In other words, the Constitution imposes the disability, and only a supermajority of Congress can remove it. But under the Supreme Court’s reasoning, the meaning is inverted: The Constitution merely allows Congress to impose the disability, and if Congress chooses not to enact legislation enforcing the section, then the disability does not exist. The Supreme Court has effectively replaced a very high bar for allowing insurrectionists into federal office — a supermajority vote by Congress — with the lowest bar imaginable: congressional inaction.
This is a fairly easy read for the legal layperson, and the best general overview I’ve seen yet that sets forth the various legal and constitutional factors involved in today’s decision, including the concurring dissent by Justices Kagan, Sotomayor, and Jackson.
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It’s not inconsistent with the court’s inconsistency though.
Scalia was a legal juggernaut on the bench and off it, as unfortunate his politics may be, he had a very large influence on the legal arena surrounding Constitutional law. He argued (correctly) for separated powers and the legislature doing the legislation on big and controversial topics instead of the court(s) - openly pointing out SCotUS’s composition as an unelected, politically appointed technocracy.
What changed and grew was the inconsistency of the conservative members at respecting that separation of powers whilst also not shying from their role as final legal arbiter. Trump v Anderson was correctly decided that states cannot deny candidates federal ballot access without due process, but they completely neglected to affirm or deny the lower courts ruling of what counts as attempted insurrection, kicking that to Congress.
This is political cowardice, not good and proper separated powers keeping each other in check. A legal case is the correct route to determine facts surrounding a candidates eligibility - not a political disqualification process without precedent nor established rules regarding evidentiary eligibility, rights of the accused, composition of the adjudicators, etc. any attempt to disqualify via US Congress will spurn a host of new legal challenges based on procedural questions
This is political cowardice, not good and proper separated powers keeping each other in check.
That is democracy, they have to rule based on the law, and they err on the side of innocence. I think a court that prefers for the elected people to make policy decisions instead of them is better than a court that sets its own policy.
There is no side of innocence in determining eligibility for office. The requirements laid out in the main body of the Constitution already make it clear that holding the office of President is not an inalienable right.
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Has Trump actually been found guilty of insurrection? It seems this could be where the issue lies. I know he’s an insurrectionist, you know he is an insurrectionist but unless convicted how do you apply the law?
It requires no conviction.
So… what’s to stop a Texas or a Mississippi or a Florida from deciding that Biden has participated in an insurrection, and requiring no conviction, uses this as grounds for removal from the ballot in November?
As much as I want Trump off ballots and believe he’s an insurrectionist, it’s important to remember that anything that can be done to hamper his chances that requires no (or a low bar) legal framework can also be done to help his chances.
If a court in Colorado can sit down and decide he’s off the ballot because of their opinions, and that decision is enforceable and unassailable, then we’re establishing that a state court can strike any name from any ballot because they say so.
With that precedent, I would fully expect states with GOP leadership to appoint judges who would then find reasons to call some aspect of Biden’s presidency an insurrection (in a similar vein as the Mayorkas impeachment), and remove him from their state’s ballot.
Literally nothing. If they were able to they would do it already, in several cases they are kind of half-assedly trying. Mutually assured destruction isn’t the principle of operation when one side is generally acting in good faith and the other side is actively pulling the copper out of the walls.
No mention of the Court’s reasoning that it should not be enforced at the State level, but instead at the Federal level?
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No mention of the Court’s reasoning that it should not be enforced at the State level, but instead at the Federal level?
See paragraphs 7, 10, and 12 of the article, which discuss factors already decided at the state level and how this ruling impacts the status quo.
I was speaking of the summary. A balanced summary is an intellectually honest summary.
Also, only paragraph 12 (kind of) covers what I asked about (Court’s reasoning of Fed vs State enforcement; see above) …
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.
For reference sake, here are the three paragraphs you mentioned …
From the article, paragraph 7 …
But now Section 3 is different from other sections of the amendment. It requires federal legislation to enforce its terms, at least as applied to candidates for federal office. Through inaction alone, Congress can effectively erase part of the 14th Amendment.
From the article, paragraph 10 …
As Kagan, Sotomayor and Jackson point out, this approach is also inconsistent with the constitutional approach to other qualifications for the presidency. 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.
From the article, paragraph 12 …
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.
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Also, i thought states were given the right to determine their own ballot rules.
Or is that mute because this is a federal election?
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SCOTUS is clearly making unconditional rulings. The states should go nuclear and ignore them. Let SCOTUS enforce its decisions.
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Absolutely, it’s insane that congress passed an ammendment that said a thing and now the Supreme Court is saying “no, it doesn’t say that thing, if you wanted that to apply you’d need to pass a congressional act on a case by case basis.”
Imagine if everytime someone committed tax fraud congress had to officially vote to investigate that specific person. Imagine if a country like America was unable to delegate any powers.
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It’s because they don’t actually care what the constitution or the bill of rights or any of the amendments says. The Tribunal of Six only cares about ensuring their political compatriots - that is, the GOP - can cement their power for good. And if that means that we sink into fascism… they don’t care. Because they’ll be calling the shots.
Defund the Supreme Court.
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