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PaperclipPerfector  7mo ago (text post)   29199 thread views

Culture War Roundup for the week of March 4, 2024

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Trump case out on him being an insurrectionists.

https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf

Compared to the Reddit debates and how the SC would prevent this as a non-lawyer I thought the opinion was fairly basic and simple. It seems to me that they just declared it a Feds power in Federal elections and the States don’t get a say. Personally, I did come to a belief that it was self-executing.

I think they avoided really touching on all the novel legal theories both ways going around on Reddit or twitter.

It came down to what I believe was one of my original views that letting States have any say in declaring someone an insurrectionists would be a complete clusterfuck and basically turn into state legislatures electing Presidents. Therefore they declared it a federal power.

I would call this pragmatic versus legally correct in my opinion. They avoided 100 page treatise on whether the President is an office holder.

I predicted something between 7-2 and 9-0. 9-0 seems better for the nation.

I see this as a pretty nakedly political decision. Not partisan - I do not believe that the court is making its decisions on the basis of what is in Trump's or the GOP's best interests - but political in the broader sense. The court has sought to lower the political temperature as a primary goal, and the Barrett concurrence is merely the most obvious evidence of that.

That's not surprising and arguably not even unwise. I resent the idea of bowing to implied threats - but nonetheless those threats can be real, and tensions really are high. Principle is all well and good but in the real world principled decisions often have consequences. It's not the worst thing in the world that those holding power flinch away from inviting chaos and conflict.

But it's legally incoherent. Apparently all the other sections of the 14th amendment can be enforced by courts without enabling legislation. And apparently even section 3 is self executing in regard to state candidates. But suddenly when it comes to federal candidates, well, the amendment may as well not exist.

It's also nonsensical that a constitutional amendment banning insurrectionists from holding office has the practical effect of giving greater ballot access to insurrectionists than those who states seek to disqualify for other reasons. It's fine for RFK Jr to be on some ballots and not others. Why is it that a state cannot disqualify someone who tried to overthrow the government, but can disqualify someone who doesn't have enough signatures? Indeed, why is it that a state can't ban an insurrectionist from the ballot, but can just legislate away presidential elections entirely and appoint electors some other arbitrary way?

I'm dissatisfied. But I wasn't really expecting satisfaction, so whatever. There have been many incoherent court decisions in the past and there will be many more in the future, and the world will keep on turning.

Hopefully at some point Congress will have the good sense to pass a bill resolving all these issues for the future, once the Trump drama has passed.

Re other sections being self enforcing

We talked about this when the Colorado case came down. The Colorado dissent talked about it too. You are ignoring the context of American approach to rights and burdens generally and the 14th amendment context specifically.

Things like equal protection is a benefit granted to an individual. The insurrection clause is a restriction upon a general right. It is very different to say “you government cannot do that because it violates my equal protection notwithstanding no congressional bill” as opposed to “despite all of these vast open questions that need to be answered by a statue we will let a state disqualify a president due to the insurrection clause without implementing language.” That is, self execution is more properly thought of applying when the provision is protecting rights; not taking away rights. This default isn’t just because of the background principle of liberty but also basic sense of fairness — we shouldn’t punish someone due to massively underdetermined rules.

Moreover you also ignore the context of the 14th. Protecting citizens rights (eg due process or equal protection) was a way of limiting southern states ability to exercise authority. In contrast, the self execution of the insurrection clause could spur on state power. That is quite odd.

Finally there is just the general federal structure.

When you take all of those background rules etc you can easily read the insurrection clause as needing enabling law while at the same time believing eg equal protection does not. To do otherwise prioritizes a kind of strict constructionist approach which is generally impressive but all the more for constitutional exegesis.

But it's legally incoherent. Apparently all the other sections of the 14th amendment can be enforced by courts without enabling legislation. And apparently even section 3 is self executing in regard to state candidates. But suddenly when it comes to federal candidates, well, the amendment may as well not exist.

But these thing were not decided by the courts. Insurrection is a crime, in fact a very serious one. And given the very long history of presumed innocence, if you’re not convicted of a crime, you cannot be punished by the state for that crime. That’s not how presumption of innocence works. And the thing is that the states removing Trump from the ballot are doing so on the theory that being guilty of insurrection would disqualify Trump from the ballot. Again, not convicted of insurrection or inciting an insurrection or even inciting a riot. These are crimes with clear meaning in law that require the person be tried and convicted of.

I think it is reasonable to require candidates or at least parties to meet minimum standards to appear on the ballot. It’s reasonable to expect that a candidate for office has some minimum amount of support as measured by signatures. Provided this requirement is for all candidates and is reasonable and neutral, it’s not a problem.

The court has sought to lower the political temperature as a primary goal

Do you mean the current Supreme Court? I don't follow much SCOTUS news in general, but I thought that people felt that this court was doing the opposite of that. They had two landmark rulings within the past two years that both pissed off leftists, hard: Dobbs struct down Roe in 2022, and last year they overruled affirmative action.

Could you clarify? I am likely just not understanding what you mean by political vs partisan, or by political temperature.

There are some leftists who will never be satisfied except by getting the rulings they want. These are the people calling for court-packing today because SCOTUS wouldn't disqualify Trump from the ballot. I wouldn't read that group's attitudes onto all of the left, or the broader electorate.

Broadly-speaking, the Roberts Court has hedged where possible and avoided making controversial decisions. This is why Roberts rewrote Obamacare's mandates as a tax. This is why Masterpiece Cakeshop got decided on technicalities without judging the broader questions of religious freedom and civil rights law. (And the cakeshop in question immediately got sued by activists again.) The affirmative action case you refer to is not the first time the Roberts Court has dealt with the question, and whil they did rule affirmative action unconstitutional, they refrained from making the other personality-based assessments (affirmative action by another name) unconstitutional.

Broadly-speaking, the Roberts court has been much more moderate than it's composition would suggest. Its membership has gone over time from 4-4-1, to 5-4, to 6-3, but this hasn't resulted in noticeably-bolder rulings. The Roberts Court is not using its conservstive majority to enshrine sweeping conservative precedents -- just mild ones.

The underlying problem is that the public has become more divided, and radicalized, and no longer sees what the Supreme Court does as a neutral application of straightforward law. It doesn't really matter what Roberts does, people will treat his legal decisions as political decisions. In some sense he brought this on himself, because many of his decisions are political compromises, and not grounded in a deeper law. But in effect his Court is fairly moderate, especially compared to what would be possible with a conservative majority.

Apparently all the other sections of the 14th amendment can be enforced by courts without enabling legislation.

Can they?

You can't just bring a generic lawsuit alleging someone infringed your rights. Even where there is a statute, the courts have been famously willing to find exceptions and excuses. Instead, you must show harm -- in many cases, be prosecuted or threatened with prosecution! -- and then the courts can find the statute void, either as-applied to you or in general.

That's nowhere near the framework people are trying to stretch to this case. There wasn't even Colorado law allowing this sort of challenge, or setting a duty to the state to check ballot qualifications. Instead, the Colorado courts had to go so far as to find that it would be a wrongful act and thus mandated.

And apparently even section 3 is self executing in regard to state candidates.

I don't think this is true, or part of the opinion. Even your favorite example of Couy Griffin had a state quo warranto statute authorizing the matter.

Indeed, why is it that a state can't ban an insurrectionist from the ballot, but can just legislate away presidential elections entirely and appoint electors some other arbitrary way?

I'm not sure that courts would actually allow it, given other jurisprudence, but more immediately the rules in the Constitution about the Presidential election do focus more heavily on the candidates than the processes. That may not be your ideal, but the law does not have to match your policy preferences.

Hopefully at some point Congress will have the good sense to pass a bill resolving all these issues for the future, once the Trump drama has passed.

I'd be more impressed by a call for prosecutors to enforce the laws on the books, but I don't think you can get what you want from that.

Agree.

If I was going to be legally correct I would have basically deleted this section from the constitution. The reason it’s self executing and doesn’t have due process was because everyone knows Jefferson Davis is guilty. The statute is limited to Confederates. Since all Confederates are dead this section is dead.

This feels like a Roberts style decision of finding the best way to keep the system tapes together with judicial restraint even if it’s sort of incoherent.

There's still 18 USC 2383, and it does require Constitutional authorization to do what it does.

What ruling do you think would not have been incoherent?

As much as I dislike Trump, I always thought the ballot strikes were pretty dangerous to democracy, at least absent some sort of congressional action (which seems to be the SCOTUS take) or criminal conviction of a disqualifying crime. What the states involved seemed to be doing is declaring in absentia that a crime had been committed, and that Trump was guilty and therefore the 14th amendment holds. The problem being that this creates a hole in democratic norms that you could drive a semi truck through. Without some requirement for a legal ruling and either congress or a court conviction, it’s basically what SCOTUS says: the states can remove any candidate for almost any reason without the candidate being able to challenge the decision quickly enough to be on the ballot. Keep in mind that the decisions are made sometimes mere weeks before the election, and therefore the time available for a challenge is often limited.

I would call this pragmatic versus legally correct in my opinion. They avoided 100 page treatise on whether the President is an office holder.

What's not legally-correct about it?

Honestly reading thru comments it sort of feels to me that the 14th was never a valid law.

It reads to me like it’s self executing. But self-executing doesn’t work for anything we view as a valid law.

If a poll worker saw a Trump ballot and it’s self executing I don’t have a valid argument for why they can’t just throw the ballots out.

But a different poll worker would view those as valid votes. Both can’t be true at the same time.

With everyone and no one having authority it see like an unlaw to me.

I think the issue is that at the time, basically everyone knew who rebelled. They really weren't thinking about future insurrections.

Basically agree.

In 1870 what counted as insurrection was much more like are you 35 years old with a very defined meaning. In 1870 it meant were you a member of the confederate army.

Which I would tend to think the SC basically just deleted this part of the 14th amendment as no longer existing as we no longer have any confederate soldiers still alive.

Consider that a lot of former confederates actually served in the American government. Lots of them were elected to the Senate. Look to this example, for Republicans objecting over the appointment of a Democrat to a leadership position, not for his prior Confederate status, but over procedural irregularities:

https://www.senate.gov/about/officers-staff/secretary-of-the-senate/confederate-general-becomes-secretary-of-the-senate.htm

To be disqualified by the Fourteenth Amendment, you had to be holding office, or to have resigned from an office with the term still unexpired, at the time you committed insurrection.

It just says "having previously taken an oath" - shouldn't that apply to former office-holders as well, even if their term(s) ended before the insurrection?

(still doesn't seem like it should have applied to Cox, who was neither a present nor former office-holder before the Civil War)

It just says "having previously taken an oath" - shouldn't that apply to former office-holders as well, even if their term(s) ended before the insurrection?

It appears there was some discussion of that, and an amendment to make it explicit that it did not was defeated, but it's not clear how it was actually enforced.

That's more because 1881 and 1893 were both after 1872, and Cox had neither been elected (though he came close!) nor was a sworn officer to the United States before the Civil War began.

Yes. As a practical matter we can't just accept "self executing". That means a state attorney general could strike Trump or Biden from the ballot, announce that they gave aid or comfort to our enemies and say the 14th Ammendment self executes their removal.

There'd be spiteful retaliation with red and purple-red states kicking Biden off of ballots. Not to be too dramatic, but this 9-0 ruling was to hold the Repulic together and avoid the obviously disastrous alternative.

The thing about this argument that gets me is... states absolutely can do this without going through the charade of invoking the 14th amendment. Elections are not constitutionally required, a state could choose to give it's electoral votes to whoever the Governor chooses, or whatever other method they want.

It seems weird to me that a state has the power to block their electors from going to a candidate because they don't like his face, but not because he's an insurrectionist.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Emphasis mine.

State LEGISLATURES can choose to give their electoral votes to whoever the Governor chooses. That does not mean that state COURTS get to strike candidates from the ballot for arbitrary reasons.

States have the power to decide how their electors are allocated, but they don't have the powee to determine who is elligible for federal office. It's not that haphazard. It hardly ranks among other contradictions caused by court rulings on the Constitution, or even on just the 14th amendment.

Besides, the idea that the states are independent sovereigns convening their federal government by an electoral college is by now a polite fiction, especially as the 14th amendment has made the states subordinate to that federal government.

especially as the 14th amendment has made the states subordinate to that federal government.

The 14th has made the states subordinate to the Bill of Rights, but I wouldn't say that's the biggest step in state subordination. It was several decades earlier when the Supremacy Clause made states subordinate to the federal government in matters covered by the Constitution's short allowlist, and it wasn't until several decades later that cases like Wickard v. Filburn expanded federal powers from "short allowlist" to "do anything you feel like".

I would argue that the Supremacy Clause made state laws subordinate, but it didn't make the state governments themselves subordinate. At some level they were still treated at sovereign entities, bound together as a Constitutional Union. The laws of the Union necessarily superceded the laws of its member states, but the Union was created by those member states. After the Civil War the federal government really became an entity unto itself, with legitimacy explicitly beyond and above that of the states (deriving ultimately from "the people"). The 14th then re-codified this understanding (through, among other principles, incorporation) such that the state governments effectively exist in forms dictated by the federal government.

I think it's a minor irony of the Civil War: The North declared that the Southern States could not secede from the Union, and then, immediately after the war, amended the constitution such that secession becomes conceptually impossible. I suppose my argument here is non-obvious and not widespread, but I would suggest: the 14th amendment, by altering the relationship of the federal government to the states, contains an implicit recognition that the states had hitherto not been bound by the Constitution, and thus probably had the right to secede.

Well I am taking it farther as self-executing seems bonkers to me but the Amendment feels as though that’s how it’s written.

I don’t even think it would be limited to States Attorney Generals getting the power to decide the matter. If it’s self-executing the Mayor of Houston or even a poll worker could just throw out a politician they don’t likes ballot.

I think you're misunderstanding the terms here. Self-executing, in this context, means merely that congressional action isn't required. For example, the 16th Amendment gives the Federal government the power to levy an income tax, but requires a tax code to actually implement it. By contrast, the amendment limiting the president to two terms isn't reliant on a congressional determination. No one is arguing that the 14th Amendment's Equal Protection Clause requires Congress to delineate what equal protection specifically means to be valid. There's certainly civil rights legislation, but none of it is enabling legislation for rights already held. Since this is a 14th Amendment case, it's illogical to assume that a congressional determination would be needed for disqualification. The concurrence doesn't argue for a specific mechanism (as that would directly undercut their criticism of the majority), but one could presumably rely on a judicial determination.

I think it's a bad idea to set the precedent for "Huh, looks like your guy is pretty popular. Might even win if we let him run here. So we're not going to let him run. Because, uh, he's evil. Yeah, that's why" no matter what party Your Guy or Our Guy is from. Once you start going 'we can decide not to let people run in an election because we don't want them to win' then that applies to Our Guy when the other lot get back into power, and the other lot will get back into power eventually.

Democracy means giving everybody, even Adolphus J. Hischler III, the right to run a campaign to be elected. Maybe Adolphus can't even get three votes, but you do not get to say he can't run because you don't like his face.

It will also be interesting to see what happens to Couy Griffin (https://www.theguardian.com/us-news/2024/feb/17/new-mexico-insurrectionist-fourteenth-amendment). I think these courts making 14th amendment decisions are screwed up. If there is either federal or state law that makes certain things a crime and punishment for that crime is that you lose the ability to hold office then I think that's fine. But courts making these decisions without a proper criminal trial with the opportunity for a jury and proper standards of evidence is broken. If you have a friendly judge you can basically remove someone from office for attending a protest where they have committed trespassing crimes.

Couy Griffin was a state official, so Anderson's "We conclude that States may disqualify persons holding or attempting to hold state office." seems pretty clear. It's possible he'll get looked at closer for other reasons, but he seems like the sort of case this court punts on.

I think if they had to make a decision they would side with Griffin.

Something feels off to me with “He’s unqualified for his State/local office because he’s an insurrectionists but he’s qualified to be a Senator because he’s not an insurrectionists”

I think to kick him out for being an insurrectionists he would need to violate a state law of insurrection.

This was my issue with a lot of arguments for disqualification since it doesn’t make sense to me someone can be guilty and innocent at the same time.

He’s unqualified for his State/local office because he’s an insurrectionists but he’s qualified to be a Senator because he’s not an insurrectionists

That's emphatically not what they are saying. They are saying that

  • For the purposes of State offices, power to decide lies with the State
  • For the purposes of Federal offices, power to decide lies with the Federal Government

The fact that two branches of our government might come to different conclusions about the object level for a particular candidate is a feature not a bug.

Except we live in a Democracy. One person/group wrote the word “Insurrection” and one group of people voted on the word “Insurrection”. It therefore must have only one meaning by the people who wrote and voted on it.

As voted on it can only have one meaning. If today the definition of Insurrection has an interpretation by the Feds and an interpretation by Colorado it means there are now two definitions of Insurrection. But the word could only have 1 meaning as voted on. If you now have 2 meanings but when passed you had 1 meaning it now means one of the 2 current meanings is an imposter and was never Democratically voted on and therefore is NOT law.

Now if Colorado passed a law that no Insurrectionists can hold office and the Feds passed the 14th Amendment then you would have 2 definitions of insurrection that were passed thru a Democratic process. You could have a definition of Insurrection according to the Colorado state legislature and a definition of Insurrection as passed thru the US amendment process.

This is the core of the rule of law in a Democracy. A word must have a defined meaning as it is voted on. If the meaning of words can change then that means laws as used were never voted on. You would now be implementing laws that were never voted on.

I have no problem with States and Feds having different powers and the ability to govern issues separately within their jurisdiction. Democracy though requires voting on laws. When only one law was passed but two laws are being implemented it means that one of the laws was never voted on. 2 does not equal 1.

2 bills being passed and 2 laws being implemented would be fine since 2 does in fact equal 2.

You're absolutely right that this creates the silly situation where he is disqualified from being a county commissioner but not from being a Senator. Such is life. The court decided that this was the absurdity they could live with.

But also note that it's not that he can be a Senator because he's innocent. It's that he can't be disqualified without enabling federal legislation, no matter if he's guilty.

Can you explain what you think is absurd or incoherent about it? The United States has an expressly and explicitly federal structure, and this isn't a new or unusual development - it has literally been this way since even the Articles of Confederation. The individual States retain their general police powers and can legislate regarding their own offices as they see fit, including (but not limited to) offices of their own sub-political units (like counties). In what way is that incoherent with respect to whether or not they are permitted to set requirements for expressly and explicitly Federal government positions?

This and some of your other comments lead me to believe you are not familiar with the subtleties of the political structure of the United States, and especially not with the jurisprudence regarding the intersections and resolution of conflicts between State and Federal law (e.g., your comment below about state courts not being allowed to enforce the 14th Amendment - the 14th Amendment is a part of the Federal Constitution, so although a state court might apply it, that application could and would be reviewed by the appropriate Federal court for that political subdivision to make sure the state court decision comports with the Federal Court precedent on that Amendment). If it isn't overly personally identifying, can you give some background here to understand where you're coming from? It might help me respond more usefully.

The court expressly states in the opinion that states have the power to disqualify candidates from state office.

I think it's less a difference about qualification and more that it's the state deciding a state(or smaller) level matter versus a state deciding a federal matter. Though I do tend to agree an actual conviction on insurrection should be needed when it is as unclear as it is with the Capitol Riot. Certainly less obvious than the Civil War.

Because there are (and perhaps will always be) more Red states than Blue states (in terms of who is elected to state offices) because of geographic and demographic population distribution, it simply didn’t make sense for the progressive justices to allow the striking off of candidates by state officials. Returning power to the states is, broadly, OK-to-bad for the left and OK-to-good for the right.

And politicization of it is bad for both sides, because it's better for everyone if we have a functioning system, we're just in a prisoner's dilemma.

Hot take: what if the judiciary isn’t making decisions based on states’ rights? Maybe the Constitution is just, you know, actually clear on this one. 14.5 says Congress has to do it.

I guess I still believe the Supreme Court splits more on philosophical than partisan lines. Those are correlated with, perhaps even a proxy for liberal vs. conservative politics, but they’re not the same thing.

Either way, I think states’ rights are a dead issue. They’re more popular with reactionaries, libertarians, and contrarians than with the mainstream.

I dunno, states' rights seem pretty popular among normies in Texas right now.

Maybe I overstated it.

Abbott is definitely pitching his particular border control plan as a states' rights issue. And a secessionist issue, and a logistics issue, and a "screw Biden in general" issue...it's accomplishing a lot of political goals. But I suppose you're correct that Texans are fairly receptive to it.

Maybe the Constitution is just, you know, actually clear on this one. 14.5 says Congress has to do it.

If congress repealed the voting rights act could Alabama ban black people from voting? Sure, the 15th amendment says, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude,” but it also says, “The Congress shall have power to enforce this article by appropriate legislation.” You wouldn’t read that as giving Congress the option to decide whether the 15th amendment applies or not.

Hmm. I don’t have a good answer for that. It’s an interesting parallel, because in the absence of direct action by Congress, states did try to run circles around the 15th. The VRA wouldn’t exist if everyone followed the amendment. But here we have the SC telling states that following this amendment isn’t their job.

This is why I think the court mostly led on pragmatism.

I think the best argument is he didn’t do insurrection.

If a politician with 50% popular support actually did insurrection (raise an army etc) we wouldn’t be talking about the Constitution or the Court. We would be talking about civil war or a Treaty creating two or more nations. We would be past the Constitution and creating a new sovereign by the ultimate law of power.

Either way, I think states’ rights are a dead issue.

States' rights to what, exactly? Anticommandeering doctrine is alive and well. Wayfair expanded state ability to levy revenue extraterritorially, and gave the dormant commerce clause some whacks. States even won the power to judicially interfere with federal enforcement and regulatory policy in Massachusetts v. EPA

I guess I accidentally predicted it here?

It leaves me inclined to rely on a national-level decision for national-level candidates.

Accidental, since I was thinking less about Constitutionality and more about avoiding judicial abuse. Which, well, this decision certainly takes that off the table. Is that a problem?

I want to know how many state procedures just became unconstitutional. Is a state still allowed to keep someone off the ballot for being a foreign citizen, or otherwise violating the Constitutional requirements in Article II? If those don’t require an explicit act of Congress to enforce, why did the 14th Amendment need Section 5?

As for pragmatism—I’m not seeing it. Sometimes the legal theory is straightforward. They didn’t digress to talk about officeholder status because they thought it wasn’t even in question. See pages 9 and 10, where they use laws about state and federal officeholders as examples.

The most pragmatic/least legalistic bit was Barrett’s concurrence. I don’t know if it’s normal for a Justice to address Americans directly, but I don’t care for it. “Hey guys, try not to get too mad at our political maneuvers!”

There's actual case law on the natural born citizen test. Both Obama and McCain were challenged in state courts with claims that they weren't. Courts decided that they didn't have the power to delve into the issue unless the candidate admitted they weren't qualified.

in their opinion they also made a reference to the problem of congress being able to remove the disqualification which is something i brought up here on the motte: https://www.themotte.org/post/801/colorado-supreme-court-thread/172633?context=8#context

not exactly the same argument tho.

Its final sentence empowers Congress to “remove” any Section 3 “disability” by a two-thirds vote of each house. The text imposes no limits on that power, and Congress may exercise it any time, as the respondents concede. See Brief for Respondents 50. In fact, historically, Congress sometimes exercised this amnesty power postelection to ensure that some of the people’s chosen candidates could take office. But if States were free to enforce Section 3 by barring candidates from running in the first place, Congress would be forced to exercise its disability removal power before voting begins if it wished for its decision to have any effect on the current election cycle. Perhaps a State may burden congressional authority in such a way when it exercises its “exclusive” sovereign power over its own state offices. But it is implausible to suppose that the Constitution affirmatively delegated to the States the authority to impose such a burden on congressional power with respect to candidates for federal office. Cf. McCulloch v. Maryland, 4 Wheat. 316, 436 (1819) (“States have no power . . . to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress”).

Not quite. They said the state can declare people insurrectionists and bar them from office, but only for state positions. The court agreed 9-0 on this point.

The split came down to the liberal justices arguing that the more conservative justices are exceeding their power in trying to determine how the federal system can declare someone insurrectionists, implying that only Congress can make this declaration rather the the federal judicial system. Barrett kind of hints at agreeing with this argument, but tries to smooth things over.

Obviously, the Supreme Court wasn’t going to let states disqualify major party presidential candidates, because this is an easily foreseeable clusterfuck. Equally obviously, there is a segment of the democratic base which doesn’t care because orange man bad.

I suppose I’m most glad that KJB didn’t go full resistance lib; 9-0 is much better for the country and the NYT can spin this as national unity even if trump is pretty bad as opposed to having to cover it as a contentious issue.

I suppose I’m most glad that KJB didn’t go full resistance lib

Hear, hear.

I'm happier it's a 9-0 with a messy concurrence than a 6-3 with a dissent, but it's still got a 3-justice concurrence with phrases like

Ultimately, under the guise of providing a more “complete explanation for the judgment,” ante, at 13, the majority resolves many unsettled questions about Section 3. It forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score. The majority further holds that any legislation to enforce this provision must prescribe certain procedures “ ‘tailor[ed]’ ” to Section 3, ante, at 10, ruling out enforcement under general federal statutes requiring the government to comply with the law. By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.

Which, to be fair, the majority opinion is otherwise a very Roberts order. Lots of floaty theory, and broad strokes of general purpose, not as much focus on statutory text or history. Doesn't even really engage with the plaintiffs well, like smothering the reactions to Gorsuch's (and Alito's) hypothetical about what happens to an in-office oathbreaking insurrectionist under the self-executing theory into "not even the respondents contend that the Constitution authorizes States to somehow remove sitting federal officeholders who may be violating Section 3", which is true, but mostly because it wasn't asked in the mess of the oral args.

But I expect that, regardless of the text of the majority opinion, someone's working on a lawsuit today trying to get Trump disqualified under federal law.

I think it blocks my horror story -- where people start talking about what votes, after being cast, may be counted, which courts were already flirting too close with, and then Baude-Paulsen giving legitimacy toward even low-level poll officials having the power to make that determination, such that even if later-overturned becomes hard for Red Tribers to believe isn't happening while being impossible to bring lawsuit against -- but we'll see how people respond. If there's massive resistance from lower courts, it doesn't really need to.

Yeah, I was a bit concerned that Jackson might go the "please defy us and take extralegal means to prevent Trumpian election" route in a dissent, but that didn't happen which is good.

Remaining paths for Interesting Times include:

  1. Trump being arrested under 2383 and stuck before a DC jury (SCOTUS basically greenlit that in their opinion, and there'll be pressure on the DoJ to do it) - this could be hilariously bad if the conviction comes after the "no replacing a candidate" deadlines, or during the lame-duck period after a Trump electoral victory
  2. Trump just straight-up wins, Blue Tribe revolts against Trump.

3.Trump wins, the filibuster gets nuked, thermostatic opinion delivers midterm victories for Democrats, Congress passes enabling legislation for section 3, Trump vetoes it to prevent himself from being removed from office, he gets impeached again for the veto...etc.

I think the most likely "interesting times" scenario is an election that is too close to call. In 2024, I don't think there is any body in America with the level of bipartisan respect needed to adjudicate a close election with the legitimacy needed for a trouble-free transition. (The Supreme Court had that level of legitimacy in 2000, but only just*). In addition, the risk of political violence increases the closer you get to Inauguration Day without a clear winner. If there is non-frivolous election litigation in one or more tipping-point states it is probably going to be about admissibility of postal votes, and most states are about as capable of doing a verifiably correct signature verification as Florida was of accurately counting a close election in 2000.

So (assuming that litigation ends with SCOTUS as Bush v Gore did and SCOTUS gives the election to Trump on a party-line vote) I think the most dangerous scenarios are variants of:

4.Biden is leading in the tipping-point state, Republicans sue claiming that a bunch of postal votes with minor procedural defects were improperly counted, SCOTUS orders them thrown out, handing the election to Trump. Democrats refuse to accept the result.

5.Trump is leading in the tipping-point state after a Republican SoS throws out a large number of postal votes for minor procedural defects. Democrats sue to have them counted, SCOTUS says no. Democrats refuse to accept the result.

6.The tipping-point state is close, and a full audit of postal votes is ordered. This takes longer than expected and the legal winner is not known in time to meet process deadlines.

The other problem in a close election is the likelihood of improper pressure being brought to bear on the electoral process in the tipping point state. One of the problems Trump faced in 2020 was that he needed to flip three states to win the election, so the first state to flip was facing the scenario where Biden still wins and a bunch of state political leaders get perp walked. Would Raffensperger have stood up to Trump if he was able to deliver the election?

I think there will be rioting in Portland and Seattle whoever wins the election. But that doesn't qualify as "interesting times".

* Bush ran as a moderate, and apart from the tax cut (which was just about bipartisan) governed as one until 9-11. It isn't clear what would have happened if he had treated Bush v Gore as a mandate to fire most of the federal bureaucracy and send the Texas National Guard into blue cities to round up illegal immigrants.

Sorry; I might not have been especially clear. As I was using it, "Interesting Times" ~= insurgency/civil war; people being killed on a large scale. That #1 I noted, if done with timing such that Biden wins by default, is probably enough to open that can of worms. #2 may also be; I've heard some worrying things out of my SJ contacts.

What you said seems to be basically politics as usual (at least, as usual for troubled times); I don't see anything there that's a clear red line the way "election with only one valid candidate" is and "Trump in power" may be for the Blue Tribe, except insofar as it reduces to #2 because Trump would be in power and doing Trump things.

It came down to what I believe was one of my original views that letting States have any say in declaring someone an insurrectionists would be a complete clusterfuck and basically turn into state legislatures electing Presidents. Therefore they declared it a federal power.

For those curious about the specific reasoning, I think the concurring opinion of Sotomayor, Kagan, and Brown-Jackson covers this cleanly:

The contrary conclusion that a handful of officials in a few States could decide the Nation’s next President would be especially surprising with respect to Section 3. The Reconstruction Amendments “were specifically designed as an expansion of federal power and an intrusion on state sovereignty.” City of Rome v. United States, 446 U. S. 156, 179 (1980). Section 3 marked the first time the Constitution placed substantive limits on a State’s authority to choose its own officials. Given that context, it would defy logic for Section 3 to give States new powers to determine who may hold the Presidency. Cf. ante, at 8 (“It would be incongruous to read this particular Amendment as granting the States the power—silently no less—to disqualify a candidate for federal office”).

I would describe this as obviously correct. No reasonable person could review the history of the Civil War and the Fourteenth Amendment and arrive at the conclusion that it grants additional state power over selecting Presidents.

This feels to me like a pretty disingenuous interpretation by the court, though.

Like, the question wasn't 'Can a state choose to take someone off the ballot just because they feel like it?' That wasn't what the states said they were doing, that wasn't the legal argument being presented.

The legal argument being presented was 'the federal government has passed a law that insurrectionists may not be elected, we are following that federal law.'

That's not the states having power over the federal government, it's the states following rules set by the federal government, precisely in line with the original intent. Like, the states not electing insurrectionists is exactly what they laws says the states have to do, and the states claim they are just following that law.

Whether or not some states want to follow that law for political reasons, and are being extra-scrupulous about following the law in cases where it benefits them, seem wholly irrelevant to whether they are following the law properly or not.

It seems like any attempt to rule on the law has to answer whether or not the state is following the law as written.

To instead say 'you following a law because you want to follow it is sort of like you breaking the law to get your own way, which we don't like, so we rule against that without answering the question of what the law says' seems really blatantly politically motivated rather than legally correct.

  • -13

The legal argument being presented was 'the federal government has passed a law that insurrectionists may not be elected, we are following that federal law.'

Federal law does not say that insurrectionists may not be elected, or even that oath-breaking insurrectionists may not be elected. The 14th amendment declares that they may not be Senator, Representative, or otherwise "hold any office, civil or military".

Federal law does not have a process or procedure for disqualifying anyone from state ballots, excepting 18 USC  2383, which requires a criminal conviction. In fact, Colorado doesn't have a definition for removing unqualified first-party candidates from the ballot: hence why the underlying Colorado ruling circled so heavily around how it must be a 'wrongful act' for a ballot to be printed with Trump's name on it.

The legal argument being presented was 'the federal government has passed a law that insurrectionists may not be elected, we are following that federal law.'

And states don't get to decide to whom that law applies. There are lots of cases where states don't get to decide.

Are state courts not allowed to enforce any other part of the 14th amendment?

I’ve been wondering how this interacts with the main Article II qualifications for the presidency. If Literal Hitler runs, despite being a foreign citizen without the years of residence, does Colorado still get to throw him off the ballot? Do we have to have an act of Congress stating that candidates violating those qualifications shall be removed from ballots?

That said, I don’t think you’ve got the previous legal theory quite right. It’s not “because they feel like it,” no, but neither does Colorado claim to enforce a federal law. They intended to enforce the 14th directly. Given the 14th also has Section 5, which explicitly says that Congress has to handle enforcement via legislation, that’s an error.

How much of this only applies to section 3 vs election qualifications more broadly?

I can’t tell.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

This is about all we get from the Constitution, and it assigns power to the states, except when Congress feels like it. I assume most of the details are hashed out by the FEC. Where do they get their authority? No idea.

Leftist (not saying you are) love to make this argument about the other qualifications but there is a clear distinction.

Whether you are over 35 or under 35 is measurable. It’s either true or false. Same with were you born in the US? (Hypothetically I guess borders could change). These are distinct features.

Insurrection is a word that needs defined and is qualitative in your definition.

The closest we have to say someone being 35 and being debatable is the story of a few Cuban baseball players who don’t know their age. But they do have a mathy age we just don’t know it.

It's easy to imagine sticky situations that could arise with other amendments. Say for example Biden names Obama as his VP and promises to resign as soon as he gets re-elected, thereby giving Obama a 3rd term. The 22nd amendment says you can't be elected President more than twice, but it doesn't explicitly mention the Vice-Presidency, and it doesn't explicitly say you can't be appointed President after serving two terms!

It seems to me that situation would be unclear and would lead to litigation. Granted it is very unlikely, but then an attack on the Capitol to prevent Biden from taking office also seemed unlikely until it happened.

That depends on the Twelfth Amendment's clause making those ineligible for the presidency also ineligible for the Vice Presidency as not being applicable to the 22nd Amendment's term limit, which is a possible but rather unlikely interpretation. Neither amendment has a clause calling for legislation.

(not saying you are)

It kind of is a slur around these parts, huh?

Anyway, I agree that there’s a clear distinction. But even when the fact is obvious it still needs an enforcement mechanism. Otherwise someone will push it. “Behind every rule there is a story.”

A good rule would handle insurrectionists correctly but also handle the age or origin ones correctly. I worry that this ruling fixed one at the expense of the other.

It would be better if Congress passed a law that says “conviction under X, Y, or Z bans you from these offices; states shall remove them from the ballot for such offices.” Or even “Donald Trump is an insurrectionist for his actions on Jan 6,” unless that falls under bills of attainder. But there are a dozen reasons that will never happen.

does Colorado still get to throw him off the ballot?

I think this isn’t dissimilar to this case or indeed other constitutional hypotheticals like whether a foreign-born hereditary US citizen like Ted Cruz counts as a “natural born” citizen. A state will try to remove them from the ballot, it will go up to SCOTUS, it will be determined.

The post you're responding to shows up as "Filtered" to me, and is not visible from this page for me. I'm not sure if that's a result of a block, or if there's something else filtering him.

EDIT: visible now

Dang. Thought I was doing a good job fishing stuff out of the filter, too.

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