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.
Jump in the discussion.
No email address required.
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.
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.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link