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zataomm  4mo ago (text post)   5332 thread views

Colorado Supreme Court Thread

Link to the decision

I don't know to what extent there are established precedents for when a topic is worthy of a mega-thread, but this decision seems like a big deal to me with a lot to discuss, so I'm putting this thread here as a place for discussion. If nobody agrees then I guess they just won't comment.

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I've been going over the Colorado decision and found this passage from the majority opinion shocking:

Although we do not find Griffin’s Case compelling, we agree with Chief Justice Chase that 'it must be ascertained what particular individuals are embraced by the definition.' 11 F. Cas. at 26. While the disqualification of Section Three attaches automatically, the determination that such an attachment has occurred must be made before the disqualification holds meaning. And Congress has the power under Section Five to establish a process for making that determination. But the fact that Congress may establish such a process does not mean that disqualification pursuant to Section Three can be determined only through a process established by Congress. Here, the Colorado legislature has established a process—a court proceeding pursuant to section 1-1-113—to make the determination whether a candidate is qualified to be placed on the presidential primary ballot.

This just... doesn't seem right. Imagine Congress passes a law granting some benefit to Americans with disabilities, and furthermore establishes a Board to review cases and determine which people are entitled to the benefit, could a State really set up its own separate Board and establish its own criteria determining who is "disabled"? It seems like this would be challenged and lose, ironically, under the 14th amendment, which disallows States from setting up their own processes by which to deny citizens rights to which they are entitled under federal law.

Imagine Congress passes a law granting some benefit to Americans with disabilities, and furthermore establishes a Board to review cases and determine which people are entitled to the benefit, could a State really set up its own separate Board and establish its own criteria determining who is "disabled"?

But that is not what happened here. Here, Congress has not acted at all, and the issue is whether the bar is self-executing:

The Electors’ challenge to the Secretary’s ability to certify President Trump as a qualified candidate presumes that Section Three is “self-executing” in the sense that it is enforceable as a constitutional disqualification without implementing legislation from Congress

PS: Please note that I am not defending the decision. For both legal and policy reasons, IMHO no criminal conviction = no disqualification.

Congress has not acted at all, and the issue is whether the bar is self-executing

Congress has acted though, 18 U.S. Code § 2383 - Rebellion or insurrection

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. (June 25, 1948, ch. 645, 62 Stat. 808; Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)

That's why I found this passage shocking; I take your point that if Congress hasn't set up any mechanism to enforce the amendment then it's reasonable to believe that it should be enforcable somehow, but it's much harder for me to swallow the argument that even when Congress does address the matter, the States can set up their own enforcement bodies. In paragraph 105 of the CO decision, the Court writes:

We are similarly unpersuaded by Intervenors’ assertions that Congress created the only currently available mechanism for determining whether a person is disqualified pursuant to Section Three with the 1994 passage of 18 U.S.C. § 2383.

Or are you saying "Congress hasn't acted" because the code doesn't say that § 2383 is "pursuant to the 14th Amendment" or some such language?

Or are you saying

Again, I am not opining on the merits, but am merely referring to the claims made by the parties and judges. The quote is re an alternative argument raised by Trump (note its placement at the end of the section on self-execution, and after your original quote). And note this from one of the dissents:

My colleagues in the majority concede that there is currently no legislation enacted by Congress to enforce Section Three.

So, that is the claim of the majority. The majority does not argue, as you inferred they did, that states can establish a definitiin of insurrection different than that established by Congress.

Thanks for the quote. I'm really puzzled by both the dissent and majority's opinion on this matter. As the dissent writes after the line you quoted:

If any federal legislation arguably enables the enforcement of Section Three, it’s section 2383.

I don't understand why neither side considers section 2383 to "enable the enforcement of Section Three". That seems to be exactly what it does, yes "arguably", but the "argument" would mainly just point out that that section uses the exact same language found in the 14th amendment!

The dissent also says,

this is the only federal legislation in existence at this time to potentially enforce Section Three

My guess is that, because the statute provides for a criminal penalty and disqualification for public office, it might be a separate penalty as opposed to an implementation of the 14th A. The statute does seem broader than the 14th Amend, FWIW, since the 14th applies only to those who have taken an oath to support the Constitution, whereas the statute applies to all who engage in insurrection. Someone who violates the statute but who did not violate the 14th because he never took an oath can still be President, since the Constitution establishes the exclusive qualifications for the offices of President, Senator, Congressperson, etc (see cases annulling term limits on Congress).

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