I see this morning that the Supreme Court has ruled that Donald Trump can't be tossed off the ballot for participating in insurrection. The ruling was unanimous.
The Court ruled, first, that "more or less formal" proceedings are required to decide if someone is guilty of insurrection and therefore ineligible to hold office under Section 3 of the 14th Amendment:
Section 3 works by imposing on certain individuals a preventive and severe penalty—disqualification from holding a wide array of offices—rather than by granting rights to all. It is therefore necessary, as Chief Justice Chase concluded and the Colorado Supreme Court itself recognized, to “ ‘ascertain[] what particular individuals are embraced’ ” by the provision. Chase went on to explain that “[t]o accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable.”
Second, the Court ruled that for federal offices, these proceedings needed to be federal:
It is Congress that has long given effect to Section 3 with respect to would-be or existing federal officeholders. Shortly after ratification of the Amendment, Congress enacted the Enforcement Act of 1870.... In the years following ratification, the House and Senate exercised their unique powers under Article I to adjudicate challenges contending that certain prospective or sitting Members could not take or retain their seats due to Section 3.
This comes as no surprise. And I suspect it's good news. The unanimous ruling hints at an understood agreement that the Court will side with Trump in this case and against him in the immunity case. Ideally, I imagine that Chief Justice Roberts would like to see a unanimous opinion in that case too. Stay tuned.
You mean the immunity case that they've already manipulated to ensure can't resolve prior to the election? That case? That one?
This is a shockingly bad ruling. It essentially says that the relevant parts of the 14th Amendment don't exist. And its grossly hypocritical coming from the courts fascist wing, but what else is new.
This is essentially saying "the courts will not provide an avenue for adjudication or redress if there's a question as to if someone is an insurrectionist or not." You're a federal court! You're THE federal court! This is your JOB and you essentially went "nah."
It's especially galling because states can throw people off the ballot for any number of arbitrary reasons, but somehow "being an insurrectionist" isn't one of'em. You can be denied ballot access because a court determines your signature collecting was deficient in some technical way, but NOT because you did an insurrection.
A more level-headed person would think twice before describing a *unanimous* SCOTUS ruling as "shockingly bad".
I think that I'm a fairly level-headed person and I have no trouble at all in describing this opinion as "shockingly bad". I think we all understood that the Supreme Court wasn't going to allow what is essentially the ruling party to be unable to run a candidate in the general election. So the decision itself was pretty much a forgone conclusion.
But what I and many others find to be completely terrible is that the liberals on the court made this a unanimous decision to basically finish writing the 14th Amendment out of the constitution. Which, honestly, is something I must agree is fairly describe as "shockingly bad".
Where were the dissents?
The problem is that you don't have to read Section 3 by itself. I'm a bit disappointed, as usual that there is no discussion, even on boring NPR which has time for it, if the actual specific history of Section 3, especially since its not that long:
(1) when the 14th amendment was passed, it wasn’t as if “insurrection” needed a definition. Now, “given, aid, comfort” was then, and is now vague, but
(2) in 1870 Congress passed the First Klu Klux Klan act which contained an enforcement mechanism which was in the hands, not of the states, but of local U.S. Attorneys, you can see why the same Congress which passed the 14th was unwilling to let the former Confederate States decide (on a state by state basis) whether a particular former Confederate could hold office, and
(3) by 1872, Congress passed an Amnesty Act and the use of the `14th after that was like, once, and it wasn’t even against a former Confederate traitor.
So, there was actual precedent that the Congress that passed the 14th Amendment did not believe it was self executing, and it was not, for the limited time it was actually going to be enforced, used that way.
No one assumed a jackass like Trump would ever come along once, let alone come along, win and they deny he lost! One could probably write a form of self executing insurrection clause, but the one we have isnt.
That's how you get to 9-0.
So, there was actual precedent that the Congress that passed the 14th Amendment did not believe it was self executing, and it was not, for the limited time it was actually going to be enforced, used that way.
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This is completely wrong.
The congress that passed the 1870 enforcement mechanism stated very specifically that this mechanism did not deny states the ability to enforce the constitution and they made no attempt to correct or reverse any of the disqualifications or preemptions made by the states. They very specifically stated that this federal mechanism was necessary only when states refused or neglected to enforce the Constitution on their own.
There is a very good documented record on why congress felt the need to enact this federal legislation. Your opinion isnt supported by the people who wrote the legislation.
Where in the 1870 mechanism did they state that? Section 14 is pretty short, and to the point it appears that the remedy of the U.S. Attorney is to wait until the person "holds office" before proceeding to get a write of quo warrento to remove them.
Anyway, it would be fantastic for Trump to be disqualified under the insurrection act or any act for that matter.
I mean, this isn't the only part of the 14th Amendment as to which there have been tons of trees killed arguing about how such provisions are enforced. I don't practice con law so I can't quote them but its not some bizzare argument.
Just in case anyone is still reading, here is the snippet from the Congressional Research service memo:
Congress could also enact new legislation to enforce Section 3 in the aftermath of January 6, much like it did in response to the Civil War. Congress initially provided enforcement of Section 3 of the Fourteenth Amendment through enactment of the First Ku Klux Clan Act in 1870. Section 14 of that Act directed the district attorney in each district in which a potentially disqualified person held office to file a writ of quo warranto against the office-holder before a judge. Section 15 of the act made it a misdemeanor for a
person disqualified under the Fourteenth Amendment to hold state or federal office, enforcement of which
required a court conviction. However, after two years, Congress reversed course by providing amnesty
from the disqualification under the First Ku Klux Klan Act through enactment of the Amnesty Act in 1872. Congress passed the Amnesty Act by more than a two-thirds vote in accordance with the Disqualification Clause. The Ku Klux Klan Act provisions no longer appear in the U.S. Code, and
Congress has not since exercised its authority under Section 5 of the Fourteenth Amendment to enact legislation providing a general procedure for the executive and judicial branches to determine who is subject to the bar on holding office.
Just to note that there is a clear difference in:
1-removing a current federal office holder who has violated the constitution and should be barred from office
- and
2- not allowing someone to run for federal office because they are barred from the office by the constitution.
The states have no delegated power to enforce 1. There is no mechanism or granted authority that allows a state to remove someone from office.
The states have very clear and direct authority to enforce 2. It is ridiculous to argue that states have clear authority to enforce 2, except for cases of insurrection which require congressional legislation...this has no support at all in the constitution or precedent. It was just invented today.
Mixing up situations 1 and 2 appears to be part of the misdirection that the S. Court is attempting to pull off, but we dont have to fall for the obvious misdirection. These are very clearly different actions.
That's a good point. Of course the other option was a 9-0 upholding of the Colorado law and disqualifying Trump from all 50 states under the same rationale.
The practical problem is how is a given person not qualified in Colorado but qualified in Louisiana?
Since federal review is fine either way (whether this originates at a state level or a federal district court level), for the office of President it has to be all or nothing.
Obviously it is not true that it must be all or nothing. There is literally no constitutional support for that.
There is also no logical support for that.
This 'practical problem' occurs in most presidential elections and nobody blinks an eye.
Quite often a candidate will appear on the ballot in less than 50 states. Literally noone has made the case that all of the past elections with candidates on less than 50 states were invalid or suspect.
Was the 96 election unconstitutional? Impractical? Suspect? Ralph Nader was on many, but not all states ballots. As was Howard Phillips. John Hagelin too. It wasnt a problem.
“The practical problem is how is a given person not qualified in Colorado but qualified in Louisiana?”
The same way that third party candidates often don’t appear on the ballots in all 50 states, because they lacked enough signatures or missed a filing deadline or whatever. You are aware that the Green Party, the Libertarian Party, etc don’t always have their presidential candidates on every single state ballot nationwide, right?
The practical problem is how is a given person not qualified in Colorado but qualified in Louisiana?
That's not a practical problem at all if the court that exercises jurisdiction over the entire country decides Washington State got it right, and Trump is ineligible to serve as POTUS, and he's therefore barred from running nationally.
Yes, many people would complain or disagree with such a decision. But it wouldn't be a constitutional "problem" as such: the GOP would nominate someone else, and life would go on. And we'd have set a clear precedent that says: don't participate in coups d'etat if you hold presidential aspirations.
A bunch of law-talking guys are saying "the liberals had to pretend that the only thing they were concurring with is the notion that state courts shouldn't decide this, they're not the proper venue, so they HAD to concur."
If that's how it works, that's a shocking indictment of how it works.
You have an argument other than gesturing at the authority of the court and saying "if all nine of them endorse it it must be true?"
Also, the majority here was utterly cowardly. The opinion is unsigned. That is just rank cowardice; none of them want their name on it.
Yeah I didn’t really understand the “we’re not signing it” logic. As if future historians aren’t going to be able to figure out the names of all 9 justices that must have comprised the majority in the 9-0 decision?
However, it is shockingly bad.
And it was not unanimous: Sotomayor's comments, with Jackson and Kagan agreeing, were dissenting in part and concurring in part. Somehow the Court edited out the "dissenting" bit. They concurred with the result, but not with the reason.
The biggest takeaway for me is that now former President Obama can run again for the presidency. Perhaps Biden will use the democrat convention to step down and the convention will unanimously select Obama as the democrat nominee. After all, no state can deny him a place on the ballot, regardless of what the 22nd amendment says.
Ha ha. Imagine. A race between two constitutionally disqualified candidates.
Apparently there is no longer any such thing. That's what I take from the Court's ruling.
I actually think they should name Obama Vice President. I know the Constitution supposedly says he can't be, but all's fair now, no?
That case will be fast-tracked through SCOTUS, like how Bush v Gore was decided in less than a week. Justice is swift for the right plaintiffs.
This.
"The unanimous ruling hints at an understood agreement that the Court will side with Trump in this case and against him in the immunity case."
Trump already won the immunity case, delay is his game plan, and delay he got.
If the Supreme Court needed to put its damn stamp on this decision December was the time to do it.
Kevin implies horse trading. If so the liberals are terrible at bargaining. Are they so out of it? I don't get it.
Liberals (on the court) don't have the votes. What are they supposed to do, vote harder?
No, but they're entitled to dissent. And that's exactly what they should've done to Republican justices essentially amending the constitution to remove a part of the 14th Amendment.
They concur only in the immediate result at issue, ie that CO can't unilaterally remove him from the ballot. They dissent, and very strongly too, from both the majority's reasoning and the effective erasure of the article.
But when there's agreement on the immediate narrow result, the votes all get counted in the same column, and that's why it's counted as unanimous. And this kind of thing happens quite a bit, where a concurrence will agree with a result but disagree with the reasoning and/or scope, like Douglas's concurrence in Roe. Nuances like that get lost in contemporary reporting but can be important markers for later cases. I agree it's frustrating as all hell that they're listed as concurrences, but if they ultimately agree with the narrow result, that's what they have to do.
Incidentally, one of the reporters I saw interviewed earlier today says there's evidence in the opinion's metadata that their opinion started out as a dissent. Not sure why they ultimately changed, unless it's for the reasons given.
Holding CO cannot remove him from the ballot disembowels Section 3 of the 14th amendment.
After reconstruction the 14th amendment was repeatedly gutted. It took until Brown vs. Board of Education to take back some ground.
I'm gutted the liberals went along with this. Historically the reconstruction amendments are construed narrowly to blunt their intended effect, why did the court liberal go along with this?
If it was some trade over immunity they are foolish. Trump already won that delay.
"Kevin implies horse trading. If so the liberals are terrible at bargaining. Are they so out of it? I don't get it."
There are only 3 of them, and it only takes 5 to form a majority. That they get anything at all is astonishing.
Dissents that call the majority partisan hacks are something Roberts *really* does not want.
Yet so richly deserved.
I see this ruling as the ruling of a court determined to maintain if not extend the powers and reach of the judiciary branch. And why not? Give it another twenty, thirty years and that's the only branch where 'conservatives' maintain some semblance of parity with 'liberals'.
Right, so someone could seek an injunction in Federal Court to remove Trump from a state ballot and they would have to rule on the merits, right? This is not a criminal proceeding, so it would only require a preponderance of evidence.
I mean, I think lawyers are prepping their cases right now.
I see now that SCOTUS precluded this by saying only Congress could decide this, which sounds dumb. Other issues get to be decided by courts, if Federal courts, so be it, why not this one?
Because special rules for Trump and Republicans.
Don’t worry. If Obama decides to run again, and some state wants to disqualify him based on the constitutional prohibition on serving 3 terms, I’m sure SCOTUS will delay ruling on that for months as well and/or issue a ruling that says states aren’t to enforce constitutional requirements wrt ballot access. /s
It hints at no such thing. The Court's ruling on immunity is almost certainly going to be this: "a president is immune from prosecution for actions provided A, B and C." Then the case goes back to the District Court to determine which, if any, of the actions alleged in the indictment meet A, B and C. That determination will be appealable and we are in to 2025.
What sort of provisions A, B, C could make a President immune from prosecution for an illegal act? How can the Executive, Constitutionally empowered to enforce the law, ever be permitted to violate it?
I honestly don’t know. But I’m sure that the decision will be at least modestly pro-Trump. Remember, the D.C. Court of Appeal wrote a very powerful, very much definitive opinion on the subject which made it very clear that there’s no presidential immunity for crimes generally and specifically that there’s absolutely none for committing insurrection.
That being the case, why exactly would the Supreme Court agree to hear Trump’s appeal? There’s nothing meaningful that the Court could add to the existing opinion and therefore no reason to have taken the case except to do Donald Trump a solid by delaying the case beyond the election. Therefore, the only thing that the Court can ultimately do to keep its "dignity" is to find some area of agreement with Trump. Otherwise, there's just no justification for agreeing to hear the case.
I dunno, you might underestimate the chutzpah of the conservatives on the Court; maybe they'll end up upholding the Court of Appeals once they've caused enough delay.
Won't this precedent void any state authority over Federal elections, such as barring felons from holding office?
And, if that's the case, why shouldn't states object to the trouble and cost of administrating them?
It would seem to require a Federal election agency, which, in light of recent history, seems like too easy a thing to compromise.
They are just making it up as they go. This precedent will be cast aside as soon as it is useful to do so.
Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson wrote a concurring opinion saying the majority decided more than it had to, ruling on “novel constitutional questions to insulate this Court” and Trump “from future controversy.” Justice Amy Coney Barrett also wrote a short concurrence saying the majority decided more than it had to, but she didn’t join the Democratic appointees’ lengthier concurrence that was more critical of the majority.
“Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so,” the three Democratic appointees wrote, referring to the section of the 14th Amendment that bars from office insurrectionists who had sworn to support the Constitution.
“The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment,” wrote the three justices, who added: “In doing so, the majority shuts the door on other potential means of federal enforcement.”
If Biden wins and Republicans hold the House and gain the Senate--what's to stop them from declaring Biden (and Harris) insurrectionists?
Nothing. It's what they will do anyway if they lose.
That's a good argument for thinking this opinion isn't completely bad. The court majority says (for now, at least) that candidates can't be barred as insurrectionists unless there's been some prior congressional action. There hasn't been and won't be before November. And anything an R congress (which the good lord forbid) might do next year can't specifically name Biden and/or Harris as long as the prohibition on acts of attainder holds.
You seem not to recognize that the Republicans are playing Calvinball. The laws and the constitution (and intellectual consistency) are nothing to the Republican justices. The law is whatever the party needs it to be at any given moment.
You may have noted a couple of parenthetical qualifications ("for now at least" and "as long as the prohibition on attainder holds"). They're in there because I'm entirely aware that there is no such thing as a bridge too far for this crew.
If Biden wins and Republicans hold the House and gain the Senate--what's to stop them from declaring Biden (and Harris) insurrectionists?
Nothing. But why would they do this? They'd first need to pass a law outlining how the process works. If they pass such a law (over Joe's veto? Really?) and then go on to try and remove him under the provisions of the 14th amendment, Biden would take them to court.
If the SC then upheld his removal on insurrectionist grounds—despite the fact that he hadn't, unlike Trump, actually engaged in insurrection—our democracy would effectively be dead. But if we're really that far gone, we shouldn't be wasting our time on blog discussions. We should be joining paramlitary groups, perhaps, or researching foreign emigration options.
But there's no way to get a federal court to hold someone for merely 'participating'.
And it has never been required before. And age and residency isn't determined by the feds.
So, once again, Trump gets a special rule, just for him.
The Court may be working around to the idea that, from the perspective of the judiciary, the electorate are a jury and in November they'll be deciding Trump: Guilty or Not Guilty, and everything else will give way or fall to that.
Trump will be on the ballot in the general. I have no problem with that as long as he is running from prison, where he clearly belongs, or running out of money, as he clearly is. I know the grift continues. but he can't use campaign funds as his personal piggybank forever.
This is a really excellent analysis of the decision and its implications:
https://www.nycsouthpaw.com/p/where-are-the-dissents?utm_campaign=email-post&r=26nfi&utm_source=substack&utm_medium=email
Thanks. Good link.
The ruling that states do not have the authority to enforce Section 3 for federal officeholders is not a surprise. I think there is reason the decision is wrong, but all nine justices agreed and I think there is nevertheless some sense to it.
The Court should have stopped there.
But the Court also said that Congress must now enact legislation to enforce Section 3. That is not language in the Constitution and it is absurd to add that requirement. As the concurring opinion of Kagan and Jackson points out:
The decision today makes an absurdity of the words in the Constitution. The problems:
Absurdity #1. As noted, Congress will never have to pass legislation with a 2/3 vote remove a DQ'd candidate or officeholder unless Congress passes an act by majority to enforce a DQ in the first place. Today's ruling effectively lowers the standard for removing a disqualification from 2/3 of Congress (as Section 3 states) to 50%+1 (or 40%, with the filibuster rule).
Absurdity #2: The SC decision creates an invitation for bad behavior. Congress can now remove officeholders such as the president with a simple majority vote. Impeachment requires a 2/3 vote to convict by the Senate, which limits the effectiveness of the process. But now Congress can DQ with a simple majority. It will be a temptation almost sure to be tried in the future, and probably soon.
Now you may be thinking, But Section 3 states a person can be disqualified for having "engaged in insurrection or rebellion against the [Constitution], or given aid or comfort to the enemies thereof." True. But Article II, Section 4, says officeholders should be removed upon impeachment and conviction for "Treason, Bribery, or other high Crimes and Misdemeanors," and we know what that means. It means: whatever Congress deems it to mean. So it will be for the language in Section 3 of the 14th Amendment. Look how broadly the current House interprets the language in its impeachment efforts against Alejandro Mayorkas (or against Joe Biden, if that case continues).
A scenario: A Congress of one party, a president of another party. Impeachment is off the table because it requires a 2/3 Senate vote to convict. But now a Congress can remove a president (or other official) by passing a simple majority vote. It just needs a pretense, and making a claim that an officeholder engaged is certain acts or provided aid or comfort to our enemies is hardly a stretch.
The current reality is that a Democratic Congress is unlikely to use this new, SC-granted authority, even against Trump, if and when warranted. But a Republican Congress with a Democratic president? It's almost a certainty they will try it. Who's going to stop them?
Turfing the president is only worthwhile if you think promoting the VP would gain you some advantage.
Why? They can just remove the VP too, using exactly the same argument.
Of course. And next in line, the Speaker of the House.
Imagine a GOP Congress and a Dem president, as we had during the Clinton (4 years) and Obama (2 years) administrations. The GOP doesn't need to win the next presidential election to retake the White House. It only needs to pass a simple act in Congress with its majority.
This is not a mere hypothetical. It's a new power of Congress almost sure to be tried.
+1
The SC decision creates an invitation for bad behavior. Congress can now remove officeholders such as the president with a simple majority vote. Impeachment requires a 2/3 vote to convict by the Senate, which limits the effectiveness of the process. But now Congress can DQ with a simple majority.
So, you think it's bad for a simple congressional majority to be able to disqualify a federal candidate but ok for a state legilsature to do so? Also, maybe I skimmed too rapidly, but it's not clear this decision affects any other federal office besides the presidency. Finally, the ruling as I understand it doesn't stipulate a simple congressional majority can DQ a presidential candidate. Rather, it stipulates Congress has to pass a law specifiying how 14aS3 works with respect to the presidency. It's quite conceivable any such law would include or indeed require a role for the federal judiciary, and maybe even state governments.
For the record I think the court got this decision badly wrong. But I think it's badly wrong because it flubbed an opportunity to protect the Republic from a would-be tyrant. IOW it's bad on consequentialist grounds. But it's not quite the legal travesty some are suggesting. The amendment itself clearly contemplates a role for Congress in specifying how Section 3 works. Congress has so far not deigned to do so with respect to the presidency. Again, I dislike the outcome, but this last part (congressional inaction) can't be blamed on 2024's Supreme Court.
I would argue that SCOTUS decided incorrectly.
According to the majority-5, because of 14A Section 5, without Congress passing laws to enforce Section 3, it is unenforceable. Because it is unenforceable by itself, an otherwise unconstitutional act is, by neglect, constitutional. That's absurd. (You would not find a single member of Congress to assent that, by not acting to pass a war resolution, that it abrogated its right to do so.)
While 14A does not affirmatively grant states power to enforce, it also does not affirmatively deny states that power. While 14A affirmatively grants Congress the power to enforce, it does not affirmatively grant exclusiveness of that power.
In their separate opinions, the concurring-4 seem to suggest that, at the federal level, there are other means than Congress to enforce Section 3. That would support the interpretation that Section 5 did not grant Congress an exclusive power.
But I would argue Section 3 *must* be enforceable by itself (without specific laws outlining how to enforce it). Otherwise, Section 3 would not have included the means to relieve its application -- the 2/3rds vote of Congress. And in fact, historical records show that Congress did not have to write laws to enforce Section 3 -- they merely refused to seat people. Absent "appropriate legislation", would this SCOTUS have also rejected past Congresses that refused to seat insurrectionists?
For these reasons, I find SCOTUS' opinion lacking in logic.
Its not at all clear why Section 14 needs to directly grant states the ability to apply this rule to the governance of federal elections as the Constitution already grants the states the ability to conduct, oversee and regulate federal elections.
This is one of the most basic and before today, uncontested powers in the constitution.
It is bizarre to think that foreigners or children must be allowed on the ballot because their is no specific state enforcement language following the text in the Constitution that bars these candidates. This type of logic would have been laughed out of court prior to today.
But I would argue Section 3 *must* be enforceable by itself (without specific laws outlining how to enforce it). Otherwise, Section 3 would not have included the means to relieve its application -- the 2/3rds vote of Congress.
Not logical. It seems plausible that the framers of the 14th amendment:
1) Thought congressional legislation would likely be required to fine-tune the process of barring insurrectionists from office;
2) Wanted to make sure, that, whatever process Congress decided on, ineligibility status itself couldn't be lifted in casual or trivial fashion—hence the 2/3rds requirement.
I was trying to take my mind off this whole thing. Binge-watched Resident Alien.
I had previously considered the very point you made and thought it valid. Allow me explain what I meant.
The governor of Georgia made a determination that John Christy was an insurrectionist for participating in the Civil War for the Confederacy, and refused to commission him and the House refused to seat him.
His replacement, John Wimpy, was found by a House committee to have also fought for the Confederacy and was also not seated.
Thousands of Confederate soldiers petitioned Congress for the disability of Section 3 to be removed by a 2/3rds vote, Section 5 notwithstanding.
Not once did Congress -- the very authors of 14A as well as thousands of Confederate soldiers -- in the immediate decade following the Civil War, think that Section 3 was not self-executing and thus necessarily implicating Section 5, as shown by their own actions.
In declaring Section 3 as not self-executing, SCOTUS required Section 5' usage. That past Congresses did not do so means this SCOTUS has also declared these people having violated the very Amendment they wrote.
And so, my point that the 2/3rds provision is necessarily tied to Section 3 being self-executing. Did I get it wrong?
If we are to play by the SCOTUS game, the next step is quo warranto. Test the logic of the concurring-4.
We can only whittle away their logic by bringing cases forward to confront and box them in.
The decision was 9-0 that states can't keep Trump off the primary ballot. That was the only issue before the court.
Four Trump Republican judges plus Roberts decided to rule on another issue that wasn't before the court. The other four disagreed, but that doesn't count as a "dissent", apparently. Anyway whatever their motives, it's hard to disagree that the 14th amendment is an incoherent dog's breakfast of a provision. It's effectively been gutted by this decision, hopefully forcing Democrats to forget their dreams of Trump not being able to contest the election and concentrate on beating him at the ballot box.
It's effectively been gutted by this decision
Not really. There's nothing to prevent a future Congress from enacting legislation outlining how section 3 is to be executed. The SC seemed to be inviting them to do just that. It's only been 156 years. Maybe they'll finally get around to it!
IANAL, but I agree with the 'dog's breakfast' comment from a lay person's viewpoint. In the post-Civil War period, it was clear who had 'engaged in insurrection'. If it is to be applied today, the Amendment should have defined 'insurrection', and done so without reference to the particulars of the Civil War and the Confederacy, and it should have specified what body or bodies are empowered to determine whether an individual was so engaged.
I think we all know where this went sideways:
At the time, instead of pursuing impeachment, the House should have held a simple majority vote on a proclamation that Trump was guilty of insurrection, and likewise, Smith should have charged it, giving him an explicit reason to have this fact necessarily adjudicated in a trial before the election, requiring SCOTUS to resolve issues ASAP.
Of course, even then, SCOTUS would find a convoluted response to keep Trump on the ballot and allow the delay of its review of issues related to the prosecution of Trump re J6 and insurrection.
There is no perfect way to play legal/electoral Calvinball. No matter what Dems do or don’t do, SCOTUS will always rule in favor of the most conservative outcome they think they can get away with without upending the entire economy and/or inciting civil war. And they will just make up laws or discard precedents as much as necessary to achieve the desired outcome. Dems need to adjust their strategy dramatically wrt Congress, the Supreme Court and state governments.
No matter what Dems do or don’t do, SCOTUS will always rule in favor of the most conservative outcome they think they can get away with...
Yep. Separate but equal is now effectively bullshit. We've effectively already entered a period of soft (judicial) authoritarianism.
I don't see a way out except for Democrats to win a trifecta and (finally!) have the stones to pass judicial reform.
But majoritarian democracy as that's normally understood in the West? We no longer have that.
it is rather astonishing.
I believe it was with the Reconstruction Amendments that "Congress shall have the power to enact legislation ..." clauses became standard. it is also fairly common in laws now to include "The Secretary of X shall be empowered to draft regulations ..." provisions.
My understanding is that these were largely administrative, making clear that Congress has the authority to enforce amendments via legislation in case anyone challenges the authority as not being stated in Article II of the Constitution.
But this Court -- at least in the majority opinion -- has decided that these clauses mean that the amendments they are part of are meaningless UNLESS Congress enacts laws to implement the meaning of the amendments.
And that's really entirely an invention of this Court.
But this Court -- at least in the majority opinion -- has decided that these clauses mean that the amendments they are part of are meaningless UNLESS Congress enacts laws to implement the meaning of the amendments.
I'm not sure that's valid for all cases. But it may be true of the presidency. Arguably with good reason. I would have preferred that Trump be barred from the presidency. But I state this purely for consequentialist reasons. But I likewise think a process whereby states can bar national candidates from running isn't workable or tenable. Congress needs to pass a damn bill outlining a process.
We should note that the process you identify as unworkable has worked just fine for a very long time.
It continued to work just fine (nobody has argued that Trump doesnt fit the criteria of someone who should be barred) until the Court decided that it shouldnt be allowed to continue working.
Note that your faithful Originalists are not even pretending to interpret the actual words anymore.
And also that their proclamation from on-high makes a number of historical events nonsensical, including a congressional pardon of a Confederate who, according to Johnnie Robbie & pals, did not need it run.
Tell me again about what modest seekers of truth these clowns are.