U.S. Supreme Court Will Hear Trump Disqualification Case on February 8

From today's order in Trump v. Anderson:

The petition for a writ of certiorari is granted. The case is set for oral argument on Thursday, February 8, 2024. Petitioner's brief on the merits, and any amicus curiae briefs in support or in support of neither party, are to be filed on or before Thursday, January 18, 2024. Respondents' briefs on the merits, and any amicus curiae briefs in support, are to be filed on or before Wednesday, January 31, 2024. The reply brief, if any, is to be filed on or before 5 p.m., Monday, February 5, 2024.

Comments

[David Nieporent]

Regardless of one's position as to how it should come out, I think everyone should be able to agree that it's good for SCOTUS to settle the legal issues. Even if they come out against one's preferences, the uncertainty is bad.

[NOVA Lawyer]

Agreed.

And while I think the legal arguments for disqualification are strong, the practical consequences probably militate against disqualification. My prediction is the Supreme Court rules in such a way that disqualification is largely taken off the table. It'll be interesting to see how they do it.

[y81]

There was a good column in the WSJ today, wherein the author suggested that the SC decide that Section 3 is not self-executing, but requires Congressional implementation, which it has not received, at least not with respect to the presidency. Congress would be free either to pass a statutory regimen, which they won't, or maybe to disqualify Trump on January 3, which they also probably won't. The SC could leave open the question of whether those convicted of "insurrection" (which I don't think that anyone has been with respect to January 6) might ipso facto be barred from office.

[NOVA Lawyer]

The "not self-executing" argument looks weak to me for a number of reasons, including no textual basis to treat section 3 differently than the rest of the 14th in that regard and because states have disqualified numerous other people (in the post-Civil War era) without reference to any congressional action. Therefore, it lacks a textual basis and seems to conflict with the original understanding at the time. It would be a way to cleanly dispose of these sorts of cases, but it requires abandoning first textualism and then originalism.

[defaultdotxbe]

I still think that is how it will turn out, if for no other reason than to prevent the inevitable outcome of blue states disqualifying republican candidates while red states disqualify democrats.

As for the history of candidates being disqualified by states, did any of them take cases to the Supreme Court? If not SCOTUS could easily say it was always unconstitutional but the court never had the opportunity to rule in it.

[Randal]

Wow you missed all the logic.

if for no other reason than to prevent the inevitable outcome of blue states disqualifying republican candidates while red states disqualify democrats.

That’s not the inevitable outcome, because SCOTUS will still decide, in every close or disputed case, whether the candidate in fact meets the criteria in 14/3. It won’t be a state-by-state hodge-podge.

If not SCOTUS could easily say it was always unconstitutional but the court never had the opportunity to rule in it.

You’re making a stare decisis argument. Nova was discussing an originalism argument. However 14/3 operated in practice at the time is the basis of the originalism argument. It doesn’t rest on SCOTUS.

[Life of Brian]

.

because SCOTUS will still decide, in every close or disputed case, whether the candidate in fact meets the criteria in 14/3

Wouldn't pretty much all of them be disputed? Hard to imagine that SCOTUS would sign themselves up for that sort of unbounded case-by-case handholding.

[NOVA Lawyer]

There really isn't anything in our history like J6 except the Civil War. Hopefully, we won't see a repeat.

The handwringing over everyone trying to disqualify everyone is silly. First, acknowledged that what Trump did after losing in November 2020 is different than what every other losing candidate for president has done, then acknowledge that J6 with the delay in counting the electoral votes was different than anything that has ever occurred in history, and then reevaluate whether, if Trump is disqualified, this means other presidential candidates from any party have a reasonable fear that they will be disqualified on specious grounds based on Trump being disqualified.

Will MAGA types be out for revenge? Of course, but they're already all in on a presidency of vengeance. Don't pretend anything Democrats do will stop them or change their course. For everyone else, it's not all about revenge and doing absolutely anything. Most politicians, even, try to stay reasonably within the bounds of the Constitution. Trump has taught a number of people that MAGA voters will reward outrageous behavior that is contemptuous of the Constitution, but there simply isn't the same sort of constituency among any other political group. Maybe the anarchists, but they are small minority and wield no significant power.

The Democrats made me do it is among the stupidest excuses for Donald Trump's antics and MAGA antics generally.

[y81]

I'm confused. The Puerto Rican nationalists who shot people on the floor of Congress would seem to me to be a good bit more serious than anything that happened on Jan. 6.

[NOVA Lawyer]

And they shouldn't be able to hold elected office either.

But, yes, J6, the 1954 shooting, and the Civil War.

[Michael P]

Nothing like J6 except the Civil War.

Nothing like J6 except the Civil War and the 1954 shooting.

Nothing like J6 except the Civil War and the 1954 shooting and the 1983 bombing of the Senate.

Nothing like J6 except the Civil War, the 1954 shooting, the 1915 bombing of the Senate, the 1971 bombing of the Senate, the 1983 bombing of the Senate, the Whiskey Rebellion, the State of Muskogee, and… I’ll come in again.

[Sarcastr0]

Michel is sure this is a slippery slope.

[I’d also note the ends and intent of the shooters were not interrupting the peaceful transfer of power in our Republic, that they were not a mob, and that the Administration at the time was not involved in the planning of the shooting.]

The Whiskey Rebellion was probably a rebellion.

[Absaroka]

"I’d also note the ends and intent of the shooters were not interrupting the peaceful transfer of power in our Republic..."

Goodness. They wanted to secede. They shot five congressmen.

Note the background here:

"In Utuado, police killed the insurgents after they attacked the station. In Jayuya, insurgents declared the "Free Republic of Puerto Rico" after taking control of the police station; they held the city for three days, until the U.S. sent bomber planes, artillery, Puerto Rican National Guard and Army troops to suppress the revolt."

Whatever J6 might have been, suppressing it didn't require bombers or artillery.

[Sarcastr0]

I think you're making a scope error because the Wikipedia Article goes into the background leading up to the incident.

The Puerto Rican nationalists who shot people on the floor of Congress in 1954 are quite distinct from an uprising in Puerto Rico 4 years earlier.

[Absaroka]

"The Puerto Rican nationalists who shot people on the floor of Congress in 1954 are quite distinct from an uprising in Puerto Rico 4 years earlier."

I'm baffled why you think that. They were both part of the same movement. The leader at the capitol shooting was corresponding with the still imprisoned leader of the 1950 rebellion. It's like saying that the battles of Manassas and Vicksburg were quite distinct. They were part of the same war.

[Nige]

'Nothing like J6 except'

...war, bombing, shooting, violence, bombing, shooting, violence; I think you're proving too much for yourself.

[Michael P]

No, Gaslight0, I am pointing out that it was grossly ignorant hyperbole to say that "[t]here really isn’t anything in our history like J6 except the Civil War", even after conceding that the 1954 shooting was part of a serious insurrection.

The Whiskey Rebellion was worse than J6. The 1954 attack on Congress was worse than J6. The Bonus Army was much more serious and more organized than J6. Shays' Rebellion was more serious and more organized than J6, but arguably only an uprising against the state of Massachusetts. The State of Muskogee rebellion was the most organized and long-lived of any of these, and styled itself a sovereign nation, so it was clearly a rebellion against the US. The various bombings of the Senate were more planned and approximately as disruptive as J6.

But a lot of Democrats are ignorant of history, so NOVA Lawyer is only living down to expectations.

[NOVA Lawyer]

Absaroka,

Are you claiming the Puerto Rican nationalists should have been permitted to hold elected office in the United States or any state after engaging in the conduct they did?

Otherwise, your point is just there are more instances when disqualification would have been appropriate? Okay.

[Randal]

I don't think states are going to keep trying to disqualify candidates and have SCOTUS slap them back over and over.

[Life of Brian]

I'm not so sure about that. The only reason we're going through this current exercise is because of the recent demise of the notion of a gentleman's agreement.

And if you really don't think they'll do it, then there should be no harm at all in an order proactively prohibiting them from doing so. Good fences and all.

[NOVA Lawyer]

“The only reason we’re going through this current exercise is because of the recent demise of the notion of a gentleman’s agreement.”

If by “gentlemen’s agreement” you mean the tacit agreement that losers would accept the results of elections and not try to stay in power through extralegal means, sure. But it’s the extralegal part that is why there are so many criminal proceedings and a push (by some) for disqualification, not because in the decades prior everyone was storming the Capitol to stop the counting of electoral votes and everyone pretty much agreed that was okay.

[defaultdotxbe]

because SCOTUS will still decide, in every close or disputed case, whether the candidate in fact meets the criteria in 14/3. It won’t be a state-by-state hodge-podge.

If SCOTUS has power to step in and decide any 14/3 case it deems fit then that would mean 14/3 is not self-executing.

[Randal]

You're retarded.

[Scooter]

Yes, you are.

Thanks for conceding.

[Brett Bellmore]

Try, "Not self executing if enabling legislation has been enacted, and federal insurrection law IS that enabling legislation."

That leaves section 3 enforceable, but with enough difficulty it won't be done frivolously.

The Court can still rule that states are free to disqualify by a lower threshold if they want, but only for state office.

[Randal]

Nobody's even talking about that option because it's so dumb.

[Michael P]

It's not dumb at all. The criminal insurrection is one sufficient mechanism for determining disqualification. The Enforcement Act of 1870 provided a second mechanism, for civil courts using quo warranto actions, which Congress repealed in 1948. That was enacted because Congress thought there were flawed and irregular attempts to disqualify candidates in the 1860s.

[David Nieporent]

Try, “Not self executing if enabling legislation has been enacted, and federal insurrection law IS that enabling legislation.”

As I said, there are many off-ramps. This is one possibility. But it's a pretty ridiculous one, because there's no dispute that the insurrection penal law is not enabling legislation for Section 3 of the 14th amendment.

[Brett Bellmore]

Well, gee, I guess if you say there's no dispute about it, that settles it. Don't forget to submit an amicus brief to the Court explaining that there's no dispute about this point; They may be unaware of your opinion.

[Sarcastr0]

The Supreme Court can do whatever they want, but adopting your thinking would require overruling one decision, and distinguishing other similar Congressional text and practice.

And no, your weird story about everyone’s motives in the post-Civil War era is not going to cut it. Well, maybe for Alito.

It’s possible, but there are easier paths.

[David Nieporent]

It would be a way to cleanly dispose of these sorts of cases, but it requires abandoning first textualism and then originalism.

I agree. But there are many off ramps for SCOTUS if it does not want to rule Trump ineligible. One possibility I think people are ignoring is that a majority of justices decide Trump is eligible but no one theory as to why commands a majority of the court.

[NOVA Lawyer]

I agree and I don't think the self-executing argument is the way they'll go. I was just responding to someone who proposed they would take that route.

I think you are may be right that there will be some sort of plurality, maybe even a combination of Trump is not disqualified for some (with differing reasons) and procedural issues for other Justices.

[Randal]

I think there's a tiny, needle-sized window where you say:

1. 14/3 is self-executing
2. But there's no cause of action for direct enforcement in federal court
3. Therefore indirect enforcement through a state cause of action is in some sense precluded

[Don Nico]

Perhaps, but I would expect that Roberts first looks hard for an off-ramp that get a 9-0 or 8-1 vote.
For that reason I don't expect SCOTUS to get to the insurrection question.

[Randal]

The more I think about it, the Tillman Blackman not-an-officer is the 8-1 answer. It also has the benefit of being pretty Trump-specific, that is, it's a very narrow holding.

[Don Nico]

I agree that a very narrow holding would fit best.

[Don Nico]

If that happens, we will be treated to many self-congratulatory OP from Blackman praising the brilliance of his analysis

[Randal]

Oh my god can you imagine. Every Today in Supreme Court History will be "Today in 2024, the Supreme Court agreed with me in Trump v Anderson 17 days ago." then "... 18 days ago." and on and on for eternity.

[NOVA Lawyer]

I don't see 8 votes for not-an-officer. It's too transparently we're going to ignore what the Constitution actually says and any reasonable interpretation of it to get to the result we want. Not that they won't do it, but not 8-1.

[Stephen Lathrop]

Nova, any result which does not disqualify Trump is too transparently ignoring the Constitution.

I think the reason so many folks want an,"off ramp," is because they either lack sufficient conviction that following the Constitution actually is the way to protect American constitutionalism—or as lawyers they are thinking in a way analogous to the major questions doctrine—how can there be a political question which seems so important, but lawyers and courts don't get to jump in and decide it?

Either way, the answer is simple. The Constitution announced the People's decision to reserve those questions for the People themselves, but assigned decision-making done on their behalf to election administrators, not to lawyers and courts. There is a readily understandable reason why the People would have done that. It is their constitutive power they are protecting, and courts and lawyers are less accountable to the People than election administrators.

Also, except for pusillanimous anticipation of MAGA rage, it isn't an important question constitutionally. There is zero reason why the jointly sovereign People should care about the disqualification of any only-possibly insurrection-tainted candidate. The People will always enjoy a banquet of choices among other candidates who are free of taint. At the outset of the election process, the People have no reason to regard any candidate as indispensable, or more privileged to receive the gift of office than any of the others. And the People have not afforded a right of candidacy to anyone.

The People make their constitutive decisions at pleasure; they bestow a gift of office on a candidate who pleases them. They do not do that in a prison of constraint dictated by a court cloaking its intrusion into the People's business in assertion that this is A VERY CONSEQUENTIAL DECISION.

The intrusion is consequential. Decisions like these, by themselves, are trivial. To the extent this Trump decision has any importance at all, it is important that the People be supported by their government with every convenience to facilitate making their constitutive choice at pleasure, and without hindrance.

And yet there is still the matter of MAGA rage, and what to do about tit-for-tat unprincipled retaliation. Problems like that are what sworn oaths are meant to address. Tit-for-tat irresponsible retaliation is unambiguously subversive of the People's sovereignty. The oath requires office holders to guard the People's sovereignty. Because the Constitution already requires oaths to guard the People's sovereignty, there is not any need of an amendment to fix the problem. Just prosecute oath breaking as a felony, and afford a defendant full due process in court. If a law is needed to do that, pass it now. It could even name tit-for-tat unprincipled retaliation as one of the ways to get yourself in legal difficulties.

Perhaps the wise off-ramp for the Supreme Court would be to announce it lacks power to address the Trump problem, but the People already enjoy that power. Let the Court tell Congress to get busy and pass a law to punish oath breaking. Maybe Trump supporters would have the insight to see that doing that immediately would also discipline irresponsibly prejudiced administrative decisions against their guy in this election.

[Brett Bellmore]

I don't think it's a winning argument, but it's not frivolous.

The claim that the Presidency, though conspicuously unmentioned, is swept up by "any office, civil or military, under the United States" or "an officer of the United States" applies with equal or greater strength to members of Congress, and yet they were mentioned specifically.

Why, if not because those terms were not considered to sweep up elected federal offices?

It sure does look like an elephant in a mousehole to me.

[Sarcastr0]

How does it apply with equal strength to folks in a different branch doing different stuff?

[Randal]

I think the reason so many folks want an,”off ramp..."

The reason we're speculating about off-ramps isn't because we want one, it's because that's what we expect SCOTUS to want.

[NOVA Lawyer]

"applies with equal or greater strength to members of Congress"

No, it doesn't. The fact that you describe them as "members of Congress" is one clue. Those aren't offices they hold.

See Article 1, Section 6, Clause 2. (They are forbidden by the Constitution from being both members of Congress and officers, hence their specific mention in Section 3 of the 14th.)

[NOVA Lawyer]

I should have said, they aren't "officers".

But, again, it is precisely because members of Congress are different from officers, that they got specifically mentioned, whereas the Office of the President is a thing in the United States and he is the chief constitutional officer. (Nixon v. Fitzgerald).

So, no, members of Congress are not as clearly pulled in by the office/officer language as the President. Likewise, electors are not officers of the United States or states, hence their separate mention.

[David Nieporent]

The Constitution announced the People’s decision to reserve those questions for the People themselves, but assigned decision-making done on their behalf to election administrators, not to lawyers and courts.

Counterpoint: no, it didn't.

Also, except for pusillanimous anticipation of MAGA rage, it isn’t an important question constitutionally. There is zero reason why the jointly sovereign People should care about the disqualification of any only-possibly insurrection-tainted candidate. The People will always enjoy a banquet of choices among other candidates who are free of taint. At the outset of the election process, the People have no reason to regard any candidate as indispensable, or more privileged to receive the gift of office than any of the others.

Priceless. Many years of Lathrop's masturbation about the supposed sovereign people, and then he just decides for himself what those people "have no reason to" want. If they're actually sovereign as you think, then it doesn't matter whether they have a good reason, bad reason, or no reason; all that matters is what they want.

[Stephen Lathrop]

Nieporent, congratulations. You have grasped my point.

Given that, the people, as in the people reading your comment, have no reason to expect such an ill-tempered muddle of a reply.

[Rev. Arthur L. Kirkland]

Speaking of practical considerations . . .

Enlargement of this Supreme Court, and repudiation of much of what it has done during recent years, can not occur too soon.

[NOVA Lawyer]

He hires the best people, Rev. Sure, it's inappropriate to suggest the Justices will provide a little quid for the quo, but it's great lawyering for reasons.

[Nameless But Highly Opinionated]

If he is ineligible, SCOTUS can neither make voters who wish to adhere to the constitution vote for him, nor make electors cast votes for him (nor make a state enforce its laws regarding how electors must vote), nor make Congress seat Trump.

And on Monday, 1/6/2025, a Congress controlled by Democrats might well refuse to seat him.

[Mr. Bumble]

"And on Monday, 1/6/2025, a Congress controlled by Democrats might well refuse to seat him."
WTF??

[Life of Brian]

I'm right there with you on the voters casting votes for who they think should win. The rest? Getting pretty insurrectiony, innit?

[Randal]

Senators voting according to SCOTUS's instructions is pretty far removed from a mob attacking the Capitol according to POTUS's instructions.

[Life of Brian]

Maybe reread OP -- it was specifically contemplating all the ways Senators and other players could act contrary to SCOTUS's "instructions," not according to them.

[NOVA Lawyer]

SCOTUS hasn’t and won’t rule that Congress must seat Trump, at least not until sometime after January 6, 2025. And it would be dubious to say that Congress doesn’t have independent authority to determine whether Trump is qualified.

I don’t think they should go that route if he wins the election, but it’s certainly not an insurrection for Congress to exercise their explicit power in ways that are unwise.

You pro-Trump people seem to have trouble differentiating between "lawful but unwise" and "unlawful and unwise". In fact, you seem to group things into "bad" and "good" and those align with your policy/ideological preferences and that's why you think anything Biden does that you don't like warrants impeachment and anything Trump does shouldn't involve any negative consequences, the rule of law be damned.

[Life of Brian]

.

I don’t think they should go that route if he wins the election, but it’s certainly not an insurrection for Congress to exercise their explicit power in ways that are unwise.

Oh, what a relief. Here I thought the country nearly ended a couple of years ago because people were advocating "for Congress to exercise their explicit power in ways that are unwise."

[Sarcastr0]

That's not what they were advocating.

But you know that.

[NOVA Lawyer]

And they weren't merely advocating for Congress to violate their oaths, there was actual violence involved in addition to threats of violence.

[Randal]

What OP? I don’t see any suggestions that Congress would / should act against the Supreme Court.

[NOVA Lawyer]

His favorite pastime is arguing points nobody made and, even so, the straw man often wins the fight.

[Randal]

lol

[Life of Brian]

I have a feeling that we're gently drifting down a concern-trolling path, but it was the "SCOTUS can't make Congress seat Trump" bit. That doesn't seem particularly subtle.

[Sarcastr0]

I have a feeling that we’re gently drifting down a concern-trolling path says the guy that says Jan 06 was people advocating for Congress to exercise their explicit power in ways that are unwise.

[Life of Brian]

NOVA's "today is different because the Good Guys are doing it!" characterization, not mine.

But you know that.

[NOVA Lawyer]

Nobody (relevant) is claiming congressmen who merely voted in stupid ways on J6 engaged in insurrection nor those who merely asked them too. It was the violence and pressure on Pence (to include threats of violence against him) to do something the Constitution clearly doesn’t permit him to do. But you know that.

[Randal]

Exactly. SCOTUS can’t instruct Congress to vote a particular way, that’s not even on the table. But it can instruct Congress on the voting process, by holding disqualification to be a political question that Congress has an opportunity to resolve on 1/6/2025.

[Life of Brian]

SCOTUS judging something to be a political question isn't "instructing" congress to do anything.

At the end of the day, this New Shiny Tactic is fully and entirely based on the notion that -- despite the national vote -- Congress can just say "meh -- whatevs!" and install its candidate of choice. The reason they use -- a political question, remember! -- is just window dressing.

Really Smart People tell me that's true. And it may well be, and we're just starting to grapple with its ramifications -- see above re demise of the gentleman's agreement.

But if it's true, it was true in 2021 as well.

[Randal]

Na doi. This is why SCOTUS isn't going to punt and say it's a political question.

Only now do you understand.

[Joe_dallas]

Assuming Trump is elected, Congress refusing to seat him is highly unlikely.

If Trump wins, then congress will very likely be very republican. Highly unlikely that there will democrat majority in the house or senate if trump is elected.
If Trump loses, then congress will very likely have a democrat majority.

[Orbital Mechanic]

I agree with this as well.

It is only consistent if your position is one national standard for voting rights and voting procedures.

[Dan Schiavetta]

“Let him off the hook for the good of the country” only seems to apply when it’s a Republican.

[Rev. Arthur L. Kirkland]

It has worked for those guys plenty of times.

Still hasn't given conservative thinking a chance in the culture war, though.

[NOVA Lawyer]

Right? Meanwhile, commenters around here all and House Republicans are all in for impeaching Joe Biden for having a ne'er-do-well son.

[Randal]

And now prosecuting Clinton too for the sex stuff.

[Dan Schiavetta]

That’s mostly what I was thinking of, though there are other examples. If Clinton had been removed, it would have been a destabilizing precedent for our nation.

[Sam Bankman-Fried]

Actually Gingrich has a PhD in European history and so in his view changes in leadership weren’t destabilizing. In retrospect Democrats would have been better off had Clinton been removed because second terms are pretty dumb. But Gingrich wanted to remove Gore as well and so once Clinton was removed he would have kept VP open and impeached Gore…and then he would have become president.

[Brett Bellmore]

Did anybody ever propose prosecuting Clinton for the adultery? I thought it was proposed to prosecute him for suborning perjury and otherwise obstructing justice.

[Sarcastr0]

Obstructing justice about sex stuff, though.

[Dan Schiavetta]

Clinton was a remarkably “clean” President. Exhaustively investigated — as to all his endeavors going back to college — and what did they find? And only two Clinton Administration officials were ever indicted, and those were over minor matters not connected with him.

Also, aside from the sex stuff (which I don’t care about — and his lies on that front were trivial) he was remarkably truthful.

When he left office commentators were wondering about his “scandal-filled” legacy. What? Not since FDR (or maybe JFK) have we had a President who internationally was so widely respected. He got a standing ovation at the United Nations. (By contrast, GWB backed out of appearing there because they wouldn’t guarantee a standing ovation for him.)

[Randal]

Different Clinton sex stuff. The Epstein files.

[y81]

I thought "let him off the hook for the good of the country" was the animating premise of the "Move On" movement: let's not talk about sex (or perjury) when there are so many important national issues to deal with.

[Sarcastr0]

I mean, the very discussion of sex/perjury when compared to what Trump is charged with makes the opposite of the point I think you hoped for.

[Sam Bankman-Fried]

DeSantis’ best buddy is the product of a Republican senator raw dogging another Republican senator’s daughter in his Senate office at the Christmas party …both voted to remove Clinton while keeping Adam Laxalt’s real father secret.

[SRG2]

Agreed. And we're in the baseball umpire territory. Apocryphal story of three baseball umpires chatting about balls and strikes.

Umpire A: I calls 'em as I sees 'em
Umpire B: I calls 'em as they are
Umpire C: They ain't nothin' until I calls 'em

[Stephen Lathrop]

Umpire C, of course, approximates a famous anecdote told of umpire Bill Klem.

[John F. Carr]

Unlike the petition by Colorado Republicans, Trump's petition presents a unified question that encompasses all possible errors below:

Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?

[John F. Carr]

The respondents called him out for an overly broad question presented. They separated his single question into seven:

1. Whether a challenge to the constitutional qualifications of a candidate for President presents a non-justiciable political question?
2. Whether the Presidency and the President fall within the list of offices and officers to which Section 3 of the Fourteenth Amendment applies?
3. Whether states may exclude from the ballot candidates who are ineligible to hold office under Section 3?
4. Whether Congress must first pass legislation under Section 5 of the Fourteenth Amendment before a state can enforce Section 3 of the Fourteenth Amendment, even if state law provides a cause of action to enforce it?
5. Whether, by intentionally mobilizing, inciting, and encouraging the violent attack on the United States Capitol on January 6, 2021, Trump “engaged in insurrection” against the Constitution for purposes of Section 3?
6. Whether the state trial court’s factual finding that Trump intentionally incited a violent insurrection on January 6, 2021, was clearly erroneous?
7. Whether the Electors Clause requires this Court to override the Colorado Supreme Court’s interpretation of the Colorado Election Code?

Respondent agreed that the court should decide the first five questions but asked the court to accept the factual finding that Trump is an insurrectionist.

The response was filed the day after Trump's petition. That's some pretty fast lawyering, or the legal teams conferred ahead of time on how to get the case heard quickly.

[Orbital Mechanic]

I think points 5 and 6 ought to be argued on due process grounds.

The Colorado court is pretty clear on their reasoning that 1) Trump clearly did it and 2) there doesn't have to be a trial to convict him for the action to be taken.

Personally I'm not comfortable with that even though I would love to see Trump removed. I get the reasoning both ways.

[Randal]

There was a trial. Are you saying due process requires a criminal trial, or are you saying there was something else deficient about the trial?

[Stephen Lathrop]

Orbital Mechanic, about the reasoning that you get, against Trump. Does it include the notion that Trump is not, constitutionally, an indispensable candidate, or even a candidate with any distinction among others, except that Trump alone among them carries the taint of insurrectionism?

When the jointly sovereign People chose to exclude insurrectionists, do you suppose they regarded that as a critical question of individual rights, subject to due process review? Or did they instead regard it as a matter of political convenience, entirely consistent with their own power to act at pleasure, to facilitate selection of the best candidate among a banquet of others upon whom to bestow their gift?

Do you suppose concern for prudential politics can be alleviated, if a candidate already under taint of disqualification is instead reinstated? Or are you merely estimating that thwarting the MAGA crowd is more dangerous than thwarting the others? If so what does that tell you about the full extent of the danger?

[Orbital Mechanic]

Stephen, I get the points you raise. My only reflection on it is that I don't feel due process should be discarded casually. And it clearly was as in the Maine action where a DA basically made the decision on his own, which the law apparently allowed.

I don't doubt for a second that Ken Paxton would cook up some reason to keep Biden off the ballot in Texas. All he has to do to justify that is claim that Biden is involved in insurrection because something something Hunter something China something something payments. Here's the dick pics to prove it. Actually I am surprised he hasn't actually tried this already.

I don't know what the remedy is but for once I would not really feel bad about a ruling in Trump's favor over this.

[NOVA Lawyer]

"the Maine action where a DA"

No, Secretary of State.

"on his own"

Her own.

"which the law apparently allowed"

Yes, and which also provides the decision can be challenged, which it has been. Which is the sine qua non of due process.

[Sarcastr0]

Orbital Mechanic, if the Maine Sec State's decision wasn't going to be judicially reviewed, I'd agree. But no one believed that would happen for a heartbeat.

[Randal]

Right. Somebody has to be empowered to initiate the due process.

[Don Nico]

"Does it include the notion that Trump is not, constitutionally, an indispensable candidate"
There are no such candidates, ever.
Your question is a red herring.

[Stephen Lathrop]

Nico, then why should Trump get more due process than others disqualified under Section 3 without due process?

[Don Nico]

SL,
Another bad practice is your reading things that are not there?
No one said anyone gets extra due process. I did say that NO candidate is indispensable not Trump, not Joe Biden, no one.

[Stephen Lathrop]

Nico, I suspect you of a straddle. Let's find out. Do you favor treating Trump as disqualified under Section 3 without due process, as thousands have been, or do you have an excuse to offer to justify an exception for Trump?

[Don Nico]

"without due process, as thousands have been"
Who are even ten of these thousands who have been ruled off the ballot in a presidential primary? Please name them.

[shermanpie]

This case seems prime for a issue-voting vs outcome-voting paradox to come up.

It seems plausible that a majority of justices find "yes" for every single issue (in favor of disqualification, that is), but the majority outcome is still "no".

[Nameless But Highly Opinionated]

Regarding #7, the election of electors is a state election. SCOTUS can’t do anything here. More broadly, the United States can't absent constitutional amendment.

And I'm not suggesting that usual reasons feds can review state actions, like for discrimination due process etc., don't apply. They do, as is normal. I'm simply saying that they would be reviewing this under the same standard as if it were for Mayor of Denver that Trump was running.

[y81]

Huh? Article II of the Constitution regulates the election of electors, and the 14th Amendment governs their qualification. The United States has a lot more power in this area than in, say, gubernatorial elections.

[Don Nico]

SCOTUS has de facto ruled the question justiciable.
Unlike Magliocca in the NYT, it has ruled defacto that it has the authority to decide whether DJT is disqualified.
SCOTUS does not want to decide:
1) What constitutes an insurrection
2) Was Jan 6 an insurrection
3) If so, did DJT incite, participate or conspire to cause the insurrection.
Without holding 3), it cannot uphold CO.
In that case, its choices become
4) A14S3 is not self-executing and there is no on-point legislation
5) A14S3 does not apply to POTUS or VEEP

[Randal]

And #4 isn't sufficient by itself, it would need to go on to explain how a non-self-executing provision could actively prevent a state from removing Trump from the ballot. Or at least identify some authority for it.

#5 seems to be the sweet spot.

[Josh R]

Why wouldn't it suffice for SCOTUS to say invoking 14.3 as the reason for disqualification by any entity (federal, state, local) requires enabling legislation from Congress?

[Randal]

Two reasons. One is, it never worked that way before.

The other is, not-self-executing doesn’t mean pretend it’s not in the Constitution. It just means it’s inert. That by itself doesn’t prevent states from using it as a basis for ballot access. It probably also doesn’t prevent Congress from using it as a basis to disqualify electoral votes on 1/6.

So I think that would look like a clarification and remand, i.e. “14/3 isn’t self-executing, so Trump isn’t automatically disqualified, but he still could be disqualified by Congress, including as part of the 1/6 vote count. Remand for Colorado to decide what that means in terms of state law.”

That would leave everything in an even more confused state. I don’t see a really clean solution along the non-self-executing path.

[Josh R]

Yes, SCOTUS could hold 14.3 is not self-executing and nonetheless doesn't require federal legislation to be in effect. But, they could easily hold 14.3 is not self-executing and absolutely requires legislation from Congress to be in effect per 14.5.

[Randal]

You're missing the point. By saying it's not self-executing, that means legislation is required for 14/3 to be in effect. But that by itself doesn't prevent Congress or the states from using it as a basis for their decisions under their own powers. That's the difficulty.

If they tried to go further and take those powers away from Congress and the states... well I think that would get tricky and dangerous.

So yes, they can say that without enabling legislation, Trump isn't disqualified by 14/3. But that doesn't prevent Congress or the states from disqualifying him anyway. (You can imagine a state deciding to do it on the basis that Congress might decide to do it by choosing to enforce 14/3 later, including on 1/6.)

[Josh R]

.

By saying it’s not self-executing, that means legislation is required for 14/3 to be in effect. But that by itself doesn’t prevent Congress or the states from using it as a basis for their decisions under their own powers

Of course it doesn’t prevent Congress under 14.5. But SCOTUS can hold that 1) there are no powers (*) that permit enforcement absent legislation and 2) only Congress has the power to pass enforcing legislation.

(*) With the possible exception of Congress certifying the results on 1/6.

[Don Nico]

I agree. It is minimal and leaves all future questions to be resolved bu Congress if it so wishes.

[Lee Stillman]

1) Not our problem. No competent trial court has ruled.
2) Again, not our problem. Ditto #1.
3) Was DJT convicted of the crime of Insurrection in a competent jurisdiction? No. CO, ME reversed.
4) A14S3 Self executing under the parameters above.
5) A14S3 applies to POTUS and Veep, under parameters above.

[Life of Brian]

.

Petitioner's brief on the merits, and any amicus curiae briefs in support or in support of neither party, are to be filed on or before Thursday, January 18, 2024. Respondents' briefs on the merits, and any amicus curiae briefs in support, are to be filed on or before Wednesday, January 31, 2024

"You're gonna need a bigger mailbox."

[David Nieporent]

Heh.

[Mr. Bumble]

Any guesses as to how many votes the petition to grant received?

[bernard11]

I'll take nine. Wanna fade me?

Surely the Justices all understand the point made by DMN above.

[Life of Brian]

Agree. Hopefully the decision is 9-0 for similar reasons.

[mydisplayname]

I realize that it's an unpopular position not embraced by any legal scholars, but I still see A14S3 as little more than a limit on the President's pardon power. Prior to ratification of the Amendment, a President could fully pardon any individual who had been declared an insurrectionist by a previous President: subsequent to ratification, a meaningful chunk -- the capacity to serve in Office -- of this presidential power was transferred to Congress. Note that Lincoln was a Republican and his successor, Andrew Johnson, was a Democrat with different (and unpopular, in Congress) sensibilities regarding reconstruction: among other things, Johnson was unsuccessful in dismissing and replacing Secretary of War Stanton.

If A14S3 _is_ a limit on pardon power, it is operative only if a pardon is meaningful; that is, a pardonable crime must have been committed. Only one sitting Commander-In-Chief has declared an insurrection (thereby avoiding international law and maintaining the ability to assert dominion and control over states which had seceded to form the CSA), the power to make such a declaration of insurrection seems to be restricted to that position, and the position has every other underfoot (how else could one declare an insurrection by citizen-electors and take emergency action against it?).

[SRG2]

I think that's unlikely. It would have been easy for drafters to say, "the President shall not have the power to pardon participants in an insurrection" or words to that effect.

[Michael P]

That wording would have a much broader effect than just disqualifying people from future office. Under mydisplayname's theory (which I don't find convincing), I think the intention would have been to show the President to pardon rebels and keep them out of prison -- or remove the other disabilities implied by federal felony convictions -- but reserve to Congress the decision on allowing them to holding elected or appointed office.

[Sam Bankman-Fried]

Every power the executive is endowed with can be checked by Congress via impeachment and removal. And once the Senate has the Articles of Impeachment they can negotiate with the president a resolution such as him agreeing not to run again. So with Trump McConnell could have demanded Trump announce he was not seeking a second term in return for McConnell not removing him because McConnell had the leverage of removing him.

[Sam Bankman-Fried]

I will just add that it is not the Supreme Court’s job to improve the Electoral College…that should be done via amendment. And by “improve” I mean abolishing it and going with a national popular vote in which a Marine in California has the same amount of power as a transgender female stripper in Philadelphia.