As
Ed Morrisey says, "the 13th, 14th, and 15th Amendments exist to limit states' powers, not to add to them." The Supreme Court unanimously rejected Colorado's attempt to use the 14th Amendment to remove Trump from the state's presidential ballot.
This case raises the question whether the States, in addition to Congress, may also enforce Section 3. We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.
SCOTUS rulings often surprise me with what they take up and what they dodge. The question of whether the President constitutes 'an officer under the United States' for these purposes seemed to me to be well-adjudicated in earlier cases, and would have been a layup to resolve.
ReplyDeleteThe much more important question of what constitutes an insurrection they seem to have decided to leave to Congress. I note the concurring opinion by the left-wing justices object that they would have liked more clarity on that, as the 14th requires a 2/3rds supermajority to remove the disability from Congress -- but there's no clarity on what Congress would have to do to impose it. I think that's an artifact of history: nobody had any doubts or questions about who was on what side in the Civil War, or about whether an insurrection had taken place.
The one-party state that temporarily emerged from the Civil War may have had no doubts that an insurrection had taken place; nevertheless there was no insurrection. That the legal, peaceful, and democratic secession of some of the States constituted a "rebellion" was little more than a Republican Party fantasy foisted on the American people by totalitarian means, and used by that Party to violate the sovereignty of the people in their various States. It is the great tragedy of this Republic that an enormous lie has been established in law, apparently permanently.
ReplyDeleteThe much more important question of what constitutes an insurrection they seem to have decided to leave to Congress.
ReplyDeleteI'm not convinced this is a dodge by the Court. CJ John Marshall, in Marbury v Madison, wrote that It is emphatically the province and duty of the judicial department to [s]ay what the law is. It seems to me that defining the terms to be used in a law is solely the task of the lawmakers and well outside the province of the judiciary.
I also have a different take on the three activist Justices' dissenting concurrence. They weren't looking for clarity here; they were objecting to the sweeping nature of the ruling, wanting instead, a narrow ruling in order to keep open a plethora avenues with which to harry and hector a politician about whom they harbor such obvious contempt: [T]he majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily....
Eric Hines
Most comments I have read agree with Mr Hines. The liberals, and sadly ACB but surprisingly not Roberts, wanted to have more bites at the apple. It also appears that there are likely 5 solid votes to block most of the other lawfare against Trump.
ReplyDeleteI still expect that there will be a Federal court challenge to Trump's candidacy and, if he should win the EC, likely a serious attempt to not certify the election that may make 6 January 2021 look like the grade school picnic it was.