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Post by aj2hall on Jan 31, 2024 2:09:38 GMT
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Post by aj2hall on Feb 5, 2024 12:09:46 GMT
heathercoxrichardson.substack.com/p/february-4-2024It seems clear that the men who wrote the Reconstruction Amendments expected men like former president Trump to be disqualified from the presidency under the Fourteenth Amendment, as 25 distinguished historians of Reconstruction outlined in their recent brief supporting Trump’s removal from the Colorado ballot.
But the Fourteenth Amendment did far more than ban insurrectionists from office. Together with the other Reconstruction Amendments, it established the power of the federal government to defend civil rights, voting, and government finances from a minority that had entrenched itself in power in the states and from that power base tried to impose its ideology on the nation
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Post by hop2 on Feb 5, 2024 18:25:28 GMT
Yeah, well, aren’t they the ones claiming to be originalists? ( they meaning the current SCOTUS)
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Post by aj2hall on Feb 5, 2024 21:44:52 GMT
the Republicans challenging Trump's eligibility in Colorado www.washingtonpost.com/politics/2024/02/05/trump-supreme-court-ballot-norma-anderson/Anderson, 91, is the unlikely face of a challenge to Trump’s campaign that will be heard by the Supreme Court on Thursday. She was a force in Colorado politics for decades, serving as the first female majority leader in both chambers of the legislature. She is a Republican but has long been skeptical of Trump and believes he is an insurrectionist who crossed a verboten line on Jan. 6, 2021, that should bar him from holding office again.
“He tried to overturn an election,” she said. “The very first time I ever ran, I didn’t win. I didn’t go out and try to change the election. I said, ‘Whoops, work harder next time, lady.’”
Also signing on to the suit were a former Republican member of Congress from Rhode Island who now lives in Colorado; a teacher; a former deputy chief of staff to a Republican governor; a former executive director of the Boys & Girls Clubs of Larimer County; and a conservative columnist for the Denver Post.
Krista Kafer, a Denver Post columnist who is another plaintiff, studied up on the case, prayed about it and consulted with her mother before deciding to join the lawsuit. She said she did so in part because she would want Democrats to do the same if a leader of their party did what Trump did after losing an election. And if Trump isn’t barred from running, she said, future presidents may incite violence if they lose their reelection bids.
“Only this time it’s not going to be, you know, a guy with Viking horns and a bunch of people with poles and makeshift weapons,” she said. “If this becomes the new normal, what does the next one look like? Bigger crowd, better weapons.”
Anderson said she understood she might lose the case, but believed that bringing the lawsuit was worth it regardless.
Either way, she said, the challenge will help more people “realize how serious January 6th was and the fact that dear Donald was part of it.”
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Post by aj2hall on Feb 5, 2024 22:14:44 GMT
www.washingtonpost.com/opinions/2024/02/04/trump-ballot-disqualified-14th-amendment/The record is clear that the legislators who wrote and enacted the amendment in the wake of the Civil War were not just thinking of the Confederacy’s leaders but also of “the leaders of any rebellion hereafter to come.” Those are the words of John B. Henderson, a Republican senator from Missouri, when he cast his vote for the amendment in 1866. They are recorded in a powerful amicus brief filed with the Supreme Court by a distinguished group of historians of the era: Jill Lepore, David Blight, Drew Gilpin Faust and John Fabian Witt.
The biggest paradox of all: Throwing Trump off the ballot would seem, on its face, the opposite of democracy. Yet the whole point of Section 3 is to protect constitutional democracy from anyone who has already tried to destroy it. If its provisions don’t apply to Trump, they don’t apply to anyone. The court would not be disqualifying him. He disqualified himself.
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Post by aj2hall on Feb 6, 2024 22:00:36 GMT
This breaks down both sides and the arguments for or against his eligibility on the ballot www.washingtonpost.com/politics/interactive/2024/14th-amendment-trump-ballot/?itid=fy_subs_readinghistory_5This week the Supreme Court considers its most consequential case involving a presidential election since Bush v. Gore in 2000. Officials in both Colorado and Maine have ruled that Donald Trump is ineligible for their ballots because he violated Section 3 of the 14th Amendment — by engaging in insurrection on Jan. 6, 2021. The Supreme Court will review the Colorado decision, with oral arguments set for Thursday. (Maine has effectively put its own case on hold as it awaits a ruling on Colorado.)
So what are the points of contention that will decide this issue? Let’s look at the relevant parts of the 14th Amendment and break down what Trump has said about why those who would use the amendment to keep him off the ballot are wrong, what the Colorado courts have said, and what past cases say that may inform the Supreme Court’s ruling.
Section 3
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 5
The Congress shall have power to enforce4, by appropriate legislation, the provisions of this article.
1. Is the president an officer? What Trump says: This doesn’t apply to him because the president is not an “officer of the United States,” and the presidency is not an office “under the United States.” His legal team’s brief notes that “officer of the United States” appears several other times in the Constitution, in contexts that exclude the president. In one instance, it says the president must “Commission all the Officers of the United States.” The impeachment clause mentions the president “and all civil Officers of the United States,” which Trump’s team argues indicates “officers” doesn’t inherently include the president.
What the other side says: Those who filed suit in Colorado say in their brief that, because the Constitution cites the presidency as an “office” approximately 20 times, it follows that the president is an “officer.” It also cites examples of the founders and other historical figures understanding the president to be an “officer.”
What the courts have said: A district judge in Colorado agreed with Trump. She was the first to find that Trump engaged in insurrection, but she ruled he wasn’t disqualified because Section 3 didn’t apply to presidents. District Judge Sarah B. Wallace wrote that, “when a list includes specific positions but then fails to include others, courts assume the exclusion was intentional.” She also cited an earlier draft of the 14th Amendment, which included an explicit mention of the “office of the President.” She said that “certainly suggests that the drafters intended to omit the office of the Presidency from the offices to be disqualified.”
The Colorado Supreme Court disagreed. It said the traditional understanding of an “officer” included the president. It also cited contemporaneous debate over the amendment’s drafting. When one senator suggested the language would allow rebels to be “elected President or Vice President of the United States,” another responded: “Let me call the senator’s attention to the words ‘or hold any office, civil or military, under the United States.’ ” The objecting senator was satisfied.
Relevant precedents United States v. Mouat. In 1888, the Supreme Court said that unless a person serving “holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States.” Floyd Acceptances. In 1868, the same year the 14th Amendment was ratified, this Supreme Court precedent cited “officers in this government, from the President down to the most subordinate agent,” suggesting that the president is indeed an officer. U.S. Term Limits, Inc. v. Thornton. In 1995, the court noted that “the Constitution treats both the President and Members of Congress as federal officers.”
2. Does the president take a different oath? What Trump says: The president doesn’t qualify here either, Trump’s brief says, because presidents take a different oath from others — to “preserve, protect and defend” the Constitution, rather than “support” it.
What the other side says: That “defend” is analogous to “support.” “If anything, the President’s oath is more demanding than mere ‘support,’ ” said the Colorado plaintiffs. They noted that 19th-century presidents “repeatedly gave speeches acknowledging that their presidential oaths imposed a duty ‘to support’ the Constitution.” Trump himself, on Jan. 6, 2021, said while talking about Vice President Mike Pence: “We’re supposed to protect our country, support our country, support our Constitution and protect our Constitution.” What the courts have said: Wallace again sided with Trump, finding that this also indicated the drafters did not intend to include the president. She wrote that, while the presidential oath “encompasses the same duties as an oath to support the Constitution,” the language refers to an oath taken by others. The Colorado Supreme Court again disagreed, finding that the presidential oath is one to “support” the Constitution. It cited how Article VI of the Constitution says “all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” Because the president is an officer of the United States, it said, his oath is to support the Constitution. Relevant precedents West Virginia University Hospitals, Inc. v. Casey. There is little in the way of courts weighing in on whether the presidential oath is one to “support” the Constitution. But Trump’s team cites this 1991 Supreme Court decision, which said, “The best evidence of congressional purpose is the statutory text, which cannot be expanded or contracted by the statements of individual legislators or committees during the enactment process.” It says that because the presidential oath is described differently, it must be assumed the 14th Amendment refers to a different oath.
3. Did Trump engage in an insurrection? What Trump says: His actions don’t amount to engaging in insurrection. Trump’s brief notes that he has never been charged with that specific crime, even as he faces many criminal charges. It notes parts of Trump’s Jan. 6 comments that urged peacefulness. It also contends that, even if you cite his failure to quickly quell the riot, “mere failure to act would not constitute ‘engagement’ in insurrection.” And it says the courts shouldn’t rely on the idea that Trump used coded language, comparing that argument to “claims that President Trump has powers of telepathy.”
What the other side says: Trump’s actions and words — explicit and implicit — make clear he intended for his supporters to storm the Capitol. He directed them to the Capitol after inflaming them with false claims of voter fraud, knowing that they were willing to engage in violence for him. The Colorado petitioners cite how Trump previewed the Jan. 6 protest as something that would “be wild.” They also note that the “most inflammatory parts of his speech were not in his prepared remarks.” Finally, they cite how Trump resisted urging his supporters to be peaceful after the riot touched off. He even attacked Pence on Twitter long after being informed of the violence. What the courts have said: The Colorado district court ruled that Trump did engage in insurrection. The judge said he “acted with the specific intent to disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means; specifically, by using unlawful force and violence.” She said Trump “cultivated a culture that embraced political violence” and that his inaction showed he “intended for the crowd to engage in violence when he sent them to the Capitol ‘to fight like hell.’ ” She also said Trump’s Pence tweet directly “caused further violence at the Capitol.” The Colorado Supreme Court agreed. It said that Trump’s “actions constituted overt, voluntary, and direct participation in the insurrection.”
Relevant precedents Brandenburg v. Ohio. In 1969, the Supreme Court ruled that states cannot punish abstract advocacy for violence or lawbreaking; the speech must be “directed [at] inciting or producing imminent lawless action” and be “likely to incite or produce such action.” NAACP v. Claiborne Hardware Co. In this 1982 incitement case, the court said that previous evidence “could be used to corroborate” evidence of “wrongful conduct.” Hess v. Indiana. This 1973 decision suggested that courts can look to “evidence, or rational inference from the import of the language” to determine if “words were intended to produce, and likely to produce, imminent disorder.”
4. Is Congress required to enforce it? What Trump says: Section 5 of the 14th Amendment shows that Section 3 is not “self-executing” — in other words, that it requires Congress to determine how it is to be enforced. And his brief says that, because Congress has not conferred such power on state courts and officials, they don’t have the authority to exclude candidates from the ballot by invoking it. Congress did lay out enforcement mechanisms in the years after passage of the 14th Amendment, but they were repealed.
What the other side says: The Supreme Court itself has said the 14th Amendment is self-executing. And other constitutional amendments have also been found to be self-executing, even when they similarly gave Congress enforcement power. “Nothing in its text or history suggests Section 3 is somehow different in this respect from all other provisions of the Reconstruction Amendments,” the plaintiffs’ brief says. What the courts have said: The Colorado district court said it was self-executing. It said that “states can, and have, applied Section Three pursuant to state statutes without federal enforcement legislation.” It added that, even before Congress enacted enforcement legislation in 1870, Section 3 “was enforced by various entities.” The Colorado Supreme Court added that “while Congress may enact enforcement legislation pursuant to Section Five, congressional action is not required to give effect to the constitutional provision.” Colorado Supreme Court Justice Carlos Samour Jr. disagreed. He noted that there is an enforcement mechanism for disqualifying someone who is convicted criminally of engaging in insurrection, 18 U.S. Code § 2383. “Had President Trump been charged under section 2383,” Samour wrote, “he would have received the full panoply of constitutional rights that all defendants are afforded in criminal cases.”
Relevant precedents In re Griffin. In 1869, Supreme Court Chief Justice Salmon P. Chase ruled that Section 3 was not self-executing. But Chase was sitting as a circuit judge at the time, rather than ruling from the Supreme Court. City of Boerne v. Flores. In 1997, the Supreme Court said, “As enacted, the Fourteenth Amendment confers substantive rights against the States which, like the provisions of the Bill of Rights, are self-executing.” Civil Rights Cases. In 1883, the court said that the 14th Amendment “is undoubtedly self-executing, without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.” South Carolina v. Katzenbach. In 1966, the court said that the 15th Amendment, which includes virtually the same language as Section 5 of the 14th Amendment, “is self-executing.” The burden in the case that the Supreme Court takes up this week appears to lie with those who would remove Trump from the ballot. Trump could avoid this outcome even if he succeeds on only one of the several relevant questions. From there, a big question is what the ruling would mean for the 2024 election.
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Post by aj2hall on Feb 7, 2024 3:31:18 GMT
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Post by aj2hall on Feb 8, 2024 4:39:21 GMT
From a conservative federal judge threadreaderapp.com/thread/1755399868183368166.htmlT he former president is testing America’s commitment to American Democracy, the Constitution, and the Rule of Law.
The former president engaged in an insurrection or rebellion against the Constitution by attempting to remain in power beyond his four-year term after the American People lawfully elected Joe Biden President of the United States.
At the same time that he attempted to remain in power, he attempted to deny President Biden the powers of the Presidency to which he, as the former president’s lawful successor, was entitled — preventing the peaceful transfer of power for the first time in American history.
This insurrection against the Constitution is precisely the insurrection that the Framers of the Fourteenth Amendment wrote and intended disqualifies a person from high office. Indeed, it’s as if the Framers of the Fourteenth Amendment foresaw January 6, 2021, and provided for that day in Section 3 in order to ensure that America would never again witness another January 6.
If Section 3 does not disqualify the former president for this insurrection against the Constitution of the United States, then Section 3 does not disqualify any person at all.
This is nothing but recognition that the constitutionally guaranteed peaceful transfer of power is sacrosanct to our constitutional form of government and must forever remain inviolate.
The Fourteenth Amendment is the Constitution’s ultimate safety net for American Democracy. For this reason, not to disqualify the former president might be the most anti-democratic decision of all, as Professors Baude and Paulsen wrote last weekend.
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Post by aj2hall on Feb 8, 2024 4:51:34 GMT
snyder.substack.com/p/law-or-fearTrump disqualified himself from office by taking part in an insurrection and thereby seeking to substitute the rule of fear for the rule of law.
The historian Eric Foner was the first to connect the storming of the Capitol to Section 3 of the Fourteenth Amendment, which bans oath-breaking insurrectionists from holding office. The legal scholars William Baude and Michael Stokes Paulsen made the case for disqualification, exhaustively and convincingly, in a law review article posted last August.
Since that dramatic intervention, the discussion has changed fundamentally, as people have taken in that Section 3 exists, have understood that it defines a qualification for presidential office (lack of oath-breaking insurrection), and have realized that it arose to handle a moment like our own. It is the supreme law of the land, and it could not be more applicable. The issue of Trump’s eligibility for office has now reached the Supreme Court, and oral argument will begin tomorrow.
Of all of the qualifications for presidential office, not having been an oath-breaking insurrectionist is, let us say, the least demanding. It is the one most clearly related to one's own choices. And it arose from a moment in American history that we rightly regard as decisive for our republic, the years after the insurrection that became the Civil War. As that context has been understood, Section 3 has come to seem like an appropriate, and indeed necessary, part of our constitutional structure.
When he did lose in 2020, Trump acted much as leaders in places like Belarus and Côte d'Ivoire have recently behaved: he sought to manipulate the vote-counting apparatus and other relevant institutions, and he encouraged violence to upset the the transition of authority. (These similarities are discussed in an amicus brief I was honored to co-sign). Trump knowingly lied about the 2020 election, creating the conditions for insurrection; his campaign now is centered on his big lie, which becomes the justification for violence against those who do not believe. As he threatens judges, prosecutors, and elected officials, he spreads the rule of fear. If Trump is the nominee and loses, he will very likely try another insurrection; if Trump is the nominee and wins, he promises to round up his political enemies and to take other actions that will invite a response from inside and outside the government. This is the arc that Section 3 is meant to halt and redirect.
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Post by revirdsuba99 on Feb 8, 2024 4:59:52 GMT
SCOTUS Colorado disqualification oral arguments audio will be broadcast tomorrow live.
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samantha25
Pearl Clutcher
Posts: 2,960
Jun 27, 2014 19:06:19 GMT
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Post by samantha25 on Feb 8, 2024 17:14:31 GMT
Not looking good for Colorado. Dump will be on ballot.
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Post by revirdsuba99 on Feb 8, 2024 17:40:49 GMT
Not looking good for Colorado. Dump will be on ballot. Thinking so... Mitchell stated, although anyone would be covered, the president already has immunity and Kavanaugh said, "I agree." Mitchell then said that Congress can defund to remove others without impeachment...
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Post by onelasttime on Feb 8, 2024 17:49:40 GMT
Oral arguments are over. It doesn’t take a rocket scientist to understand they will be ruling against Colorado. It’s just a question if it will be a 9-0 ruling. Marc Elias is pondering this from Kavanaugh. It appears he doesn’t know our history and what the Framers felt about the public’s ability to pick a president. One of the reasons for the Electoral College was the lack of trust in the people electing a qualified president with a moral compass. The states have diluted the “electoral college” so it doesn’t work the way it was intended to work. Kavanaugh… ”What about the idea that we should think about democracy? Think about the right of the people to elect candidates of their choice, of letting the people decide because your position has the effect of disenfranchising voters to significant degree.” x.com/marceelias/status/1755642910429659307?s=61&t=j45uMgNk1i8O0YllKF58nwThe election of trump and fact he will be the Republican nominee for President kind of proves the Framers were right to have concerns about the voters ability in selecting a president.
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Post by ntsf on Feb 8, 2024 18:37:02 GMT
yeah.. i was discouraged after listening to the arguments. and the commentators felt the same
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Post by aj2hall on Feb 8, 2024 21:17:23 GMT
Not surprised, but Thomas really should have recused himself. And the likely outcome is disappointing, too, but also not surprising. It helps to soften the blow a little that the liberal justices were also skeptical. www.nytimes.com/2024/02/08/us/politics/supreme-court-trump-ballot-takeaways.htmlThe Supreme Court on Thursday wrestled with whether former President Donald J. Trump is constitutionally ineligible to hold office again, as the Colorado Supreme Court had ruled in barring him from that state’s ballot.
The issue turns on whether Section 3 of the 14th Amendment applies to Mr. Trump because of his efforts to stay in office after losing the 2020 election that culminated in the Jan. 6, 2021, riot. The provision bars people who engaged in an insurrection against the Constitution after taking an oath to support it as an “officer of the United States.”
Here are several takeaways.
Colorado’s ruling appeared unlikely to stand. Video
TRANSCRIPT
0:00/0:54 “I think that the question that you have to confront is why a single state should decide who gets to be president of the United States. 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?” “No, your honor, because ultimately it’s this court that’s going to decide that question of federal constitutional eligibility and settle the issue for the nation.”
Enough justices expressed skepticism of the Colorado Supreme Court’s decision that a majority of the court appeared likely to hand Mr. Trump a victory and vote to overturn it.
Most justices seemed generally receptive to various arguments the former president’s lawyer, Jonathan F. Mitchell, advanced in support of reversing the lower court’s ruling. His main contentions were that Section 3 is not “self-executing,” meaning it could only be enforced by a separate act of Congress, and that the provision simply did not apply to a former president like Mr. Trump.
Two of the court’s three liberal justices, Elena Kagan and Ketanji Brown Jackson, joined their conservative colleagues in displaying doubts about allowing a state to decide who can run for a national office.
Justice Kagan expressed concern that by allowing Mr. Trump to be removed from the Colorado ballot, it could set a precedent of giving individual states “extraordinary” power to affect national elections.
Justice Jackson pointed out that the text of the amendment did not explicitly include “president” in the list of offices that could face disqualification for engaging in insurrection. That was because the amendment, she argued, was not initially intended to keep Southern rebels from running for president, but rather to stop them from using their popularity in their home states to seek local offices and get back into power by running for Congress.
Some justices worried about ‘unmanageable consequences.’ Video
TRANSCRIPT
0:00/0:43 “We have been told that if what Colorado did here is sustained, other states are going to retaliate and they are going to potentially exclude another candidate from the ballot. What about that situation?” “Your honor, I think we have to have faith in our system that people will follow their election processes, processes appropriately, that they will take realistic views of what insurrection is under the 14th Amendment. Courts will review those decisions. This court may review some of them. But I don’t think that this court should take those threats too seriously in its resolution of this case.”
Several justices asked questions that signaled concern that upholding the Colorado Supreme Court’s disqualification of Mr. Trump could unleash broader chaos or otherwise harm democracy.
Chief Justice John G. Roberts Jr. repeatedly raised the prospect that numerous other states could retaliate by removing a Democratic candidate — he did not specifically name President Biden — from their ballots by saying he, too, had engaged in an insurrection. Justice Samuel A. Alito Jr. also kept returning to that point, raising the specter of “unmanageable consequences.”
Lawyers for the Colorado voters who challenged Mr. Trump’s eligibility for the ballot and the state of Colorado urged the justices not to see that potential consequence as a reason to overturn their state’s action. Jason Murray, a lawyer for the voter group, said courts could stop an abuse of the process.
“This court can write an opinion that emphasizes how extraordinary ‘insurrection against the Constitution’ is and how rare that is because it requires an assault not just on the application of law, but on constitutionally mandated functions themselves like we saw on Jan. 6,” Mr. Murray said.
Got a news tip about the courts?If you have information to share about the Supreme Court or other federal courts, please send us a secure tip at nytimes.com/tips. Justice Brett Kavanaugh asked Mr. Murray whether the position that Mr. Trump cannot be president again would be harmful for democracy since it would effectively disenfranchise people seeking to vote for him. Mr. Murray replied that the purpose of the constitutional safeguard is to protect democracy not just for the next cycle but for generations to come.
“The reason we’re here is that President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution doesn’t require that he be given another chance,” he said.
Several justices wondered whether a statute is necessary.
One potential off-ramp for the Supreme Court to overturn the Colorado ruling would be to say that Section 3 is not “self-executing,” meaning that it has no legal force on its own and needs a statute enacted by Congress to be enforced.
The Supreme Court has previously deemed other parts of the 14th Amendment to be self-executing, meaning they need no such statute. But multiple justices focused on how allowing states to enforce Section 3 would be incongruous with the rest of the amendment since it largely was about taking power away from state governments after the Civil War.
Justice Clarence Thomas, the first member of the court to speak, opened the arguments by encouraging Mr. Mitchell to explain his view that the provision is not self-executing and so Colorado had no authority to enforce it.
Still, Justice Sonia Sotomayor pointed out that numerous states have relied on Section 3 to disqualify candidates for state office, even though there is no congressional statute telling states they can do that.
Some justices asked whether presidents are ‘officers of the United States.’ Video
TRANSCRIPT
0:00/1:12 “You argue that even though the president may or may not qualify presidency, may or may not qualify as an office under the United States, your principal argument is that the president is not an officer of the United States, correct?” “Yeah, I would say a little more forcefully than what your honor just described. We believe the presidency is excluded from office under the United States. But the argument we have that he’s excluded the president as an officer of the United States is the stronger of the two textually, and has fewer implications for other constitutional —” “It’s a bit of a gerrymandered rule. Isn’t it designed to benefit only your client?” “I certainly wouldn’t call it gerrymandered. That implies nefarious —” “Well, you didn’t make it up. I know some scholars have been discussing it, but just so we’re clear under that reading, only the petitioner is disqualified because virtually every other president except Washington has taken an oath to support the Constitution, correct?” “That’s right. Every president, to our knowledge, every other president, John Adams, might also be excluded because he took the oath as a vice president, which is not an officer. But, yes, President Biden would certainly be covered. He took the oath as a member of Congress, and that’s true of every previous president.”
Justice Jackson was not the only justice who signaled interest in the argument that Section 3 does not cover people who took an oath to support the Constitution only as president — like Mr. Trump — if the phrase in Section 3 “officer of the United States” applies only to appointed officials, not elected ones.
Justice Neil M. Gorsuch noted that another part of the Constitution says that the president shall commission “all” officers of the United States and noted that presidents do not grant commissions to themselves. He also pointed out that the speaker of the House and the Senate president pro tempore are described as officers in the Constitution, but that another clause says members of Congress cannot simultaneously be “officers of the United States.”
But Justice Sotomayor was skeptical of that view, suggesting that it was a “gerrymandered” argument. Among all modern presidents, she added, it would apply only to Mr. Trump, who did not previously take an oath as a member of Congress or a military officer or a lower-ranking civilian executive branch official.
There wasn’t much talk about whether Jan. 6 was an insurrection.
TRANSCRIPT
0:00/1:15 “The Colorado Supreme Court concluded that the violent attempts of the petitioner’s supporters in this case to halt the count on Jan. 6 qualified as an insurrection as defined by Section 3. And I read your opening brief to accept that those events counted as an insurrection. But then your reply seemed to suggest that they were not. So, what is your position?” “We never accepted or conceded in our opening brief that this was an insurrection. What we said in our opening brief was President Trump did not engage in any act that can plausibly be characterized as insurrection.” “All right, so why would this not be an — what is your argument that it’s not? Your reply brief says that it wasn’t because I think you say it did not involve an organized attempt to overthrow the government.” “That’s one of many reasons. But for an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence. And this riot —” “The point is that a chaotic effort to overthrow the government is not an insurrection?” “No, we didn’t concede that it’s an effort to overthrow the government either, Justice Jackson. None of these criteria were met. This was a riot. It was not an insurrection. The events were shameful, criminal, violent, all of those things. But it did not qualify as insurrection as that term is used in Section 3.”
Given how central the issue of engaging in insurrection was to the disqualification process, it was somewhat surprising how little the justices and lawyers talked about whether Mr. Trump’s role in the attack on the Capitol on Jan. 6 was — or was not — an act of insurrection.
Mr. Mitchell barely mentioned the storming of the Capitol during his presentation to the court, preferring to stick to highly technical issues of the law. And while Mr. Murray opened his arguments by blaming Mr. Trump for engaging in insurrection on Jan. 6, the justices largely sidestepped the factual question of whether his characterization was correct as they peppered him with questions.
Justice Kavanaugh, in a rare dip into the insurrection question, asked Mr. Murray why states should be granted the power to disqualify insurrectionists under the 14th Amendment when there was already a different “tool” to disqualify them from holding office: the federal statute making it a crime to incite, assist or engage in insurrection against the United States.
Of course, none of the more than 90 counts Mr. Trump is facing in his four separate criminal cases accuses him of taking part in an insurrection, even though the House select committee that investigated the events of Jan. 6 recommended he be charged with the federal insurrection count.
What happens next?
The justices did not indicate when they would issue a ruling. But what they decide could have consequences far beyond Colorado: There have been challenges to Mr. Trump’s eligibility in at least 35 states. Not just the outcome but also the rationale behind it will reverberate.
For example, one focus of the arguments is that if the court were to overturn the Colorado ruling on procedural grounds, rather than pronouncing on the merits whether Mr. Trump is constitutionally ineligible to be president again, it could lead to a later constitutional crisis.
Were he to then win the election, the question would return, including for members of Congress who would be asked to certify the Electoral College results on Jan. 6, 2025.
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Post by Merge on Feb 8, 2024 21:21:26 GMT
Oral arguments are over. It doesn’t take a rocket scientist to understand they will be ruling against Colorado. It’s just a question if it will be a 9-0 ruling. Marc Elias is pondering this from Kavanaugh. It appears he doesn’t know our history and what the Framers felt about the public’s ability to pick a president. One of the reasons for the Electoral College was the lack of trust in the people electing a qualified president with a moral compass. The states have diluted the “electoral college” so it doesn’t work the way it was intended to work. Kavanaugh… ”What about the idea that we should think about democracy? Think about the right of the people to elect candidates of their choice, of letting the people decide because your position has the effect of disenfranchising voters to significant degree.” x.com/marceelias/status/1755642910429659307?s=61&t=j45uMgNk1i8O0YllKF58nwThe election of trump and fact he will be the Republican nominee for President kind of proves the Framers were right to have concerns about the voters ability in selecting a president. That also sounds like a great argument against a couple of small, non-diverse states having so much control over who ultimately ends up on the ballot. </tangent>
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Post by aj2hall on Feb 8, 2024 21:26:15 GMT
I think the argument could be made that if not Trump, then exactly what would need to happen to trigger the 14th amendment? Someone who tried to overturn the results of the election and disenfranchise millions of voters should never be able to hold office again. Admittedly, we wouldn't be in this position if Republican senators had the courage to stand up to Trump.
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Post by aj2hall on Feb 8, 2024 21:28:09 GMT
www.nytimes.com/live/2024/02/06/opinion/thepoint#trump-supreme-courtThe Court Grasps for Ways to Avoid Booting Trump
David French, an Opinion columnist, and Jesse Wegman, a member of the editorial board, listened today as the Supreme Court heard oral arguments on whether Donald Trump should be removed from the ballot in Colorado for leading an insurrection at the Capitol on Jan. 6, 2021.
David French, Opinion Columnist Before the oral argument, I said that we’d know exactly where the court was leaning by the thrust of their questions. Process or substance? Consequences or meaning? A focus on process and consequences would be a clear signal that the court was leaning toward a limited reading of Section 3 of the 14th Amendment, which would be good for Donald Trump. The oral argument was virtually all about processes and consequences, with a particular emphasis on “who decides?” Multiple members of the court were clear that it was up to Congress, not Colorado, to define the process.
Jesse Wegman, Editorial Board Member Although I was expecting it to go this way (even the liberal justices sounded desperate to find a quick and clean way out of this case), I was still shocked at how little the basic underlying facts came up. No one disputed that Trump is an insurrectionist! Not even his own lawyer, who at one point said that states can’t remove him from the ballot because Congress has the power to requalify him by a two-thirds vote, and “we don’t know whether Trump will be excused before he’s sworn in.” That is remarkable. Instead of arcane process questions, the debate should have been about whether the world’s oldest representative democracy will allow a man who tried to overthrow the government back into power.
That said, what did you think of the concern, expressed by many of the justices, liberal and conservative, that states should not be deciding who can and cannot run for president in a way that affects other states? That may well be where they can assemble the clearest majority to reverse the Colorado Supreme Court’s ruling barring Trump from the ballot.
David French I certainly understand the court’s concern, but I think it’s addressed by text and history. The sweep of Section 3 is broad because the scope of the underlying problem was broad. The authors of the 14th Amendment were concerned about countless former Confederates penetrating all levels of government. Moreover, delegating the rules for selecting presidential electors to state legislatures is part of the nation’s constitutional fabric. State legislatures are responsible for enforcing the Constitution as well.
Jesse Wegman Absolutely. The states run the presidential election, and with great latitude, as both Article II of the Constitution and this court itself, in a case just a few years ago, made clear. I was struck by how uncomfortable that fact made many of the justices today, given that this is the system we’ve been living under for centuries without much dispute. So Florida disenfranchises former felons but Illinois doesn’t? We still mix together all their electoral votes at the end.
David French It’s a huge deal to disqualify a president, but I’d argue that decision was made by the framers of the 14th Amendment when they drafted the language, and by Trump when he launched the insurrection. The bigger deal is watering down the Constitution to avoid the consequences of applying it to Donald Trump.
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Post by aj2hall on Feb 8, 2024 21:59:41 GMT
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Post by aj2hall on Feb 8, 2024 22:06:09 GMT
Maybe the only good news today regarding Trump
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Post by onelasttime on Feb 8, 2024 22:51:25 GMT
This from Ari Melber
”Rough day for Colorado’s ballot ban decision at SCOTUS, and good day for Trump.
From the Justices’ questioning, sounded like there could be 7+ votes against Colorado.”
Prompted this responses…
”That’s ok according to Texas they can just ignore”
&
“After all, SCOTUS justices are fallible and can make mistakes! That's part of what Texas said, right?”
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Post by revirdsuba99 on Feb 8, 2024 23:21:11 GMT
,........ ^^^^^You got it!!^^^^^^.....
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