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PaperclipPerfector  4mo ago (text post)   29105 thread views

Culture War Roundup for the week of December 18, 2023

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There are 14th Amendment due process arguments, as noted at length in the dissents, though in turn there's been serious efforts to promote the view that there is no liberty interest in a ballot slot. Somin at Volokh argues this sort of perspective -- I don't know how much to trust him given his refusal to interact with the First Amendment component of this whole debate, but it's not plainly laughable.

Another argument would be US Term Limits, which holds that the Constitutional requirements for other offices (Senators and Representatives) are exclusive. That said, US Term Limits was limited to Senators and Representatives, and Thomas' dissent was both legendary and pretty well-recognized; I don't think it'd be likely to be successful.

I think the most plausible appeal would be to focus the self-executing theory. It's an incredibly expansive and aggressive read -- not as bad as the independent state legislature theory, but closer than I'd like. That's a matter of law (so SCOTUS can review it, unlike the 'facts' of what exactly Trump was alleged to have done, or the squishy interpretation of insurrection), it's a federal Constitutional question, and it punts on the ugly questions around due process.

Of course, Trump's lawyers are clowns, so we've got that as an additional problem.

Yeah, looking at this after sleeping on it, I'm less satisfied with my analysis than I was. In addition to being a pragmatist, Roberts has a tendency to aim for narrow, technical rulings, and if he can remand this in a way that (as you say) "punts on the ugly questions" I could see him pushing for that route. I agree that US Term Limits is a bad fit simply because we're in the wrong Article with this case. But the fact/law distinction on the question of insurrection potentially tees up the Court to either do Trump or his opponents a huge rhetorical favor, no matter the legal result.

I wouldn’t worry about changing your mind. It seems like a few people dunked on you with what you now agree are better arguments. On new debates having wrong arguments is part of a process of getting to what you later believe are better arguments.

For old issues (Ukraine, Hunter’s laptop, etc) I hate when I get sucked into debates because the issues have already been litigated and sides staked. For new debates you are working thru the arguments that will be made and my gut says your argument will be the one made in favor of the ruling so it did need to be expressed.

If the court decides for Trump on the grounds that the clause is not self-executing, they can simply vacate the rest of the findings. This seems like a Roberts thing to do... though finding that the Colorado Supreme Court can do as it likes with elections and he won't second-guess them ALSO seems like a Roberts thing to do.

Of course, Trump's lawyers are clowns

Personally, this seems extremely distasteful when anyone who has touched Trump with a 39 and a 1/2 foot pole has been un-personed. "Only these clowns managed to show up" usually makes me root for the 'clowns'

Presuming but not concluding that's true, it might make things more sympathetic, but it doesn't make it any less of a circus. And this stuff is too important to say "sorry you got outmaneuvered, we'll give you a mulligan and a handicap on the next one".

I'd be curious if Section 5 of the 14th Amendment ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.") indicates that Congress, and not Colorado, is responsible for its enforcement. But it doesn't feel like a slam dunk argument.

Having now read the dissent by Samour I actually do think this is a slam dunk argument.

I'm very unconvinced by Samour's argument. He says sure, the 13th and 15th amendments are self-executing despite featuring the same "Congress shall have power to enforce this article by appropriate legislation" language. And sure, the 14th is self-executing when used "as a shield". But it can't be self-executing when used "as a sword" by a state because that would violate the due process protections of the 14th amendment (which also lack enabling legislation in respect to presidential eligibility - but these parts are self-executing in this context for some reason). It feels very strained, exceptions built on exceptions.

He also has the problem that his argument proves too much. In my view most of the various legal arguments offered in Trump's defence run into the problem that they would also allow Jefferson Davis to become President. That was true of the "officer of the US" position the district court took, and it's true of Samour's dissent here. Davis is the central case of what section 3 is for, so any interpretation that is so permissive as to allow him to become POTUS is akin to an interpretation of the 1st amendment that says you have freedom to believe in whatever religion you want as long as it's Catholicism.

There are Federal crimes related to slavery though: 18 U.S. Code § 1583 - Enticement into slavery. This is more than just a gotcha; we're talking about punishments here, and I don't really see how the 13th amendment can be self-executing with regard to charging, trying, and punishing an individual for holding someone else in involuntary servitude. So if we imagine a case where a slave sued his enslaver who held him in bondage after 1865, sure, the court would rule that the slave could no longer be held, but without further legislation, they couldn't really specify a punishment for the slave holder. Presumably the slaveholder could then be sued in civil court for damages by his slave. I think in that case the 13th amendment would prevent the slaveholder from using "this man is my slave" as a defense.

Getting kind of far afield here, but the overall point is that the difference between sword and shield actually is important; if the Constitution establishes a specific punishment, then it makes sense to believe that it is up to Congress to establish a procedure for determining to whom that punishment should be applied.

On the other hand, I don't have much to say in response to your point about Jefferson Davis. It's a good point.

This argument only makes sense if you consider disqualification from public office a punishment. But if it is, it's a punishment that is arbitrarily applied to every naturalized citizen, with no recourse or due process. Elon Musk can never be President because he was born in South Africa, and therefore his loyalty cannot be trusted. Doesn't matter if his record is spotless, doesn't matter if he has had no jury trial, doesn't matter if the American voters trust him, he cannot be President. An irreversible and unappealable "punishment" for the crime being born in the wrong place.

Rather I think it makes sense to say that punishment for slavery or insurrection would need to be legislated and to be subject to a criminal trial before a term of imprisonment can be applied. But disqualification is not a punishment - it's simply a judgement about who can be trusted to hold public office. Those who are too young an inexperienced, those who may hold split national loyalties, and those who have shown themselves to be oath-breakers are judged to be unacceptable risks by the constitution. It's got nothing to do with "fair", and there is no right to hold public office.

I'm not confident on it, but I think Davis-as-President would have been subject to Section 14 and 15 of the Enforcement Act of 1870, during his lifetime, if a bit of a clusterfuck given the attorney general component (and judicial) making it a bit of a race.

If you are interested in the counter-argument, check out the discussion in the Court's opinion, starting at paragraph 90 (page 51 of the pdf), on whether section 3 of the 14th amendment is "self-executing"

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