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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Notes -
Adam Unikowsky has a very good article going through all the potential outcomes from the all-but-inevitable SCOTUS case reviewing this decision and helpfully assigning a subjective probability to each one. The numbers aren't important, but it's a useful exercise to consider the various options the justices will face and the consequences that will flow from whatever judgement is reached.
I think there will be less appetite than he suggests for a procedural dodge that doesn't resolve the core issues. There is a clear and compelling need right now for clarity that only the Supreme Court can provide, and I think a clear majority (maybe excepting Roberts) will accept that responsibility - and besides, all of the various available dodges are pretty ugly. Accordingly I put the chances of both a clear reversal and a clear affirmation higher than does.
I agree with him that the single most likely outcome is probably a reversal on the basis that Trump's behaviour did not constitute engaging in an insurrection. But I also think it's very possible that many of the Republican justices will be willing to sign on to the Baude/Paulson analysis in full. There's obviously instinctive resistance to the idea of going against public opinion, but logically any eligibility criteria is meant to be applied in the face of popular will - if they were not, then normal democratic processes would be enough.
The sky won't fall if Trump is found ineligible. We threw fifteen(!) politicians out of parliament because they were constitutionally ineligible a few years ago and while it caused a bit of drama, the world kept turning. Retaliatory actions may be attempted but they will need to get through the courts too, and if they do so successfully, they will be justified.
Care to wager? SCOTUS need only say “the law is not self executing; congress passed a law saying what insurrection is, Trump wasn’t found guilty, therefore he is eligible.”
That is of course the prudential thing to do. The Baude argument is and remains silly.
I don't bet with internet strangers. And even if I did, I already predicted that the most likely outcome was that SCOTUS will say Trump is eligible. So I'm not sure what the terms of the bet would even be.
I think the best reading of the law is against Trump. But partisanship and public pressure both clearly make it in the self-interest of the conservative justices to rule for him. And while I'm not so cynical as to think self-interest always rules the day, in the words of Jack Lang, at least you know it's trying.
Even if Trump is found eligible though, I am very sceptical that it will be on the basis that section 3 is not self executing. The legal argument that it is seems very strong to me.
Trump didn't engage in insurrection. He's certainly not the best steward of American democratic norms, but he's not an insurrectionist. The 14th Ammendment refers to actual insurrection such as raising armies and waging war. It was made right after the Civil War when there were a lot of actual former insurrectionists whose actions bear no resemblance to Trump's.
Maybe a dumb argument but for a Trump to do insurrection wouldn’t it have to be on Jan 7? It’s weird to be doing insurrection while you are potus and against yourself.
Unimportant point, but Trump remained President until Jan 20.
The more substantial point is that as President, Trump was not the whole of the law or of the government's authority. The Jan 6 insurrection was not against him.
A contemporaneous-with-section-3 definition of "insurrection" in Webster's dictionary was "[a] rising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state."
If that were the standard Jan 6 were to be judged by, it clearly qualifies. The crowd openly and actively opposed the execution of the law certifying the election result.
Are there any protests that don't meet that standard? CHAZ certainly qualifies.
I'd be surprised if less than half of politicians (at any given level) didn't cross that line every year. Heck, the Cards Against Humanity people would qualify with their anti-border-wall stunt, even if their lack of oath makes the point moot.
Most wouldn't. A bunch of uni students chanting "Biden Biden you can't hide, we charge you with genocide" cannot plausibly fit within that definition. CHAZ on the other hand I think was indeed an insurrection.
You may then ask if a Democrat who provided "aid or comfort" to CHAZ participants could be judged ineligible for office, and my answer is yeschad.jpg.
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CHAZ does, and some of the BLM stuff does, but your average "holding signs in a public space and shouting slogans a lot" doesn't.
The wording there means "attempting to stop the law being enforced". Saying you want the law to be something different than it is (which not even all protests do) is not a revolt.
Jan 6... is arguable, because they weren't preventing the execution of all laws in any significant volume, just one law in one building (I don't think, for instance, that they intended to stop DC cops from arresting murderers in DC), but they definitely were obstructing that one thing. On the other hand, I can't see a reading where Trump "openly" supported Jan 6, since he did not actually tell them to invade the Capitol. You can argue that he covertly supported it, but that's just the word: covert.
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The crowd believed in their heart of hearts that the execution of the law would have been a betrayal of that same law, due to systemic, blatant, obvious, and inescapable corruption of the election process. They believed they were fighting a coup because the President who speaks their tribe’s language said so, and everyone else in a position of power acted like an entrenched regime trying to hide something smelly.
What would the proper response have been from the protest crowd, if that were indeed the case? What should the President’s response have been? And what could have kept any successful anti-coup action from being ruled an insurrection by the annals of history?
There's certainly instances where violent insurrection is defensible or even noble - Myanmar, for example. But I don't think you can abstract away from the reality that Jan 6 was not in fact such a case. The casus belli of this insurrection was a brazen lie.
It's deeply unfortunate that many people chose to believe the self-serving narrative of a deceitful loser. But those people are obligated to live with the consequences of their actions in the real world, and the rest of us are not obligated to join them in their delusion.
I believe you go to far assuming that everyone believes Jan 6 was not justified. I don’t believe I’m the only one here who considers it a good and proper day. Jan 6 needed to happen. To me Jan 6 wasn’t even really about making Trump potus. I don’t think you realize how much anger built up in a lot of us after feeling like we had been lied to for a year on a host of issues (including mostly fiery peaceful protest) that it felt really good to see those people deal with a mostly peaceful protest.
Now an insurrection being just would still make it an insurrection (though I disagree it was that)
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The legal arguments seem incredibly weak.
First, you need to define “what is an insurrection.” The amendment is silent on that. Next, you need to determine whether the proposed candidate in fact engaged in an “insurrection.” The amendment doesn’t specify the process, standard, or who gets to answer that question.
It would be an incredibly weird provision that takes away both the right of voters and the right of a candidate to seek office yet doesn’t answer these very basic questions.
Indeed, it is hard to square with the 14th amendment’s own guarantee of due process (ie we acknowledge the importance of due process except here where we will let a county clerk decide unilaterally based on whatever standard he or she likes that someone is an insurrectionist). All the more so in the context when the 14th amendment was adopted — do you really think the north wanted to give the southern states carte blanche to strike whomever they wanted from the ballot without due process of law?
Those are the infirmities before the question is even answered whether the article even applies to the presidency (there is a strong argument it doesn’t since the provision specifies, inter alia, electors but is silent on the presidency). And then there is the still procedural question of even if the amendment is self executing absent congressional action did congress act and therefore occupy field (which again arguably yes since it defined insurrection and provided a process / penalty for the crime).
All of those questions are before you get to the merits (ie did Trump engage in an insurrection, were Trump’s statements protected by the first amendment).
That is, the argument advanced in toto is betting on hitting an inside straight flush (ie it has to win on numerous arguments; rebuttal on one). The infirmity of that legal position heavily suggests the argument is bogus and prudentially SCOTUS needs to nip this in the proverbial bud on procedural grounds.
This argument runs headlong into the problem that many constitutional provisions are vague and imprecise, and yet carry force in themselves. I guarantee that however difficult it might be to decide what is and is not "insurrection", it's a whole lot harder to define what is and is not "due process".
This is a consistent problem with many of the arguments made against the Colorado ruling. They don't work out-of-sample.
The southern states already had, and had executed that right. The constitution says that states get to allocate their electoral votes however they decide. Southern states used that power to remove Lincoln from the ballot. Constitutionally you don't even need to have an election to choose your electors, so it seems absurd to suggest there is a constitutional right to stand for election.
Due process rules do not apply to political eligibility because political eligibility is neither life nor liberty nor property. And if it is, you have to square with the fact that it is routinely denied to e.g. naturalized citizens without process or recourse. Again, the argument does not work out of sample.
I think it's very telling that none of the judges on the Colorado Supreme Court endorsed the trial court's ruling that section 3 does not apply to the presidency - not even any of the three dissents. And the trial judge herself went out of her way to emphasize the doubt she had in the conclusion. It's just really tough to argue that the person who holds the office of President of the United States is not an officer of the United States.
Has this argument even been made by Trump's team? I don't remember anything about it in the Colorado ruling, but admittedly I skimmed parts.
I agree that there are many potential reasons to deny that Trump is ineligible, but I also think it's very telling that so far none of the judges saying that Trump cannot be disqualified can agree on why not.
At the time, the state did not print ballots; parties did. There was no "the" ballot to remove Lincoln from. You didn't typically fill out your ballot for president, but deposited a pre-printed one.
Ballots named the electors, which is probably why the 14th amendment disqualifies electors. In these southern states, there weren't electors publicly declaring Republican support, so the party didn't print ballots in them.
The southern legislatures could have directly chosen the electors, but that is not the process they used.
This argument seems plausible to me. Perhaps Gorsuch would go for it.
Thanks for the correction!
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A full mischaracterization of what the other side is saying. They are saying that there are many steps to declaring a person ineligible, and the Colorado case has failed at many of those steps. Firstly they have failed to define insurrection. Secondly they have failed to define it in a way that does not encompass protected 1st Amendment speech. Thirdly they have failed to deal with due process regarding convictions. Fourthly....
It is even worse than that. One of the dissents when going through 1st, 2nd, etc specially mentioned this as something that suggests “maybe the Colorado process wasn’t the right one to adjudicate this mess.”
I guess what really bothers me about this whole thing is that I understand “damn the consequences” when the law is clear. I don’t understand the same attitude when the law is at best slightly on the other side and more naturally heavily on the other side
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I don’t have time to respond to everything but a few points:
It is true that frequently the constitution is indeterminate. But there is a difference between government cannot abridge your ability speak (a prohibition on the government) and another that the government can rather arbitrarily prohibit you from running for office (a prohibition on both a person and the public). We generally require more effort by congress to curtail rights as opposed to the opposite because in the US freedom is the presumption.
The idea that due process (and for that matter equal protection) don’t apply to political office ignores the arguments that we protect political rights for more than pretty much any other rights. See the famous footnote in Carolene Products. Could the government decide that anyone who supported BLM is ineligible to run for government on a whim without even rational basis review?
One of the dissents did in fact raise the question of whether it applied to the office of the presidency (along with a bunch of other questions). This formed part of the dissent’s argument that it wasn’t self executing. Read closer before making sweeping statements.
You are assuming that if dissent X argues A and dissent Y argues B that they are disagreeing. No. It could easily be that they are making a separate argument as to why it doesn’t apply. Having more than one compelling argument isn’t a bad thing.
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Yeah, 1000% this.
They might even punt as to what specificity of criminal conviction could support exclusion from the ballot (e.g. does it have to be exactly insurrection or could it be a related crime) but that as Trump hasn't been convicted of anything, that question isn't before the Court.
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