Get ready for 10 AM Monday Morning

We will always be in that era because there will always be an outcome they decide. Even when pushing it off on Congress.

That wasn’t the foundation for their ruling. Their reasoning - at least as outlined in the opinion - is that the 14th Amendment was a restriction on state power and a re-allocation of power from the states to the federal government. Therefore, it is not plausible to construe the Amendment as a grant of power to the states. So states have not been granted any power to enforce the Amendment against federal officers - only the federal government can do that.

That stands in contrast to states’ role in conducting elections. Again, the Constitution arrogates all of that power from the States to the federal government for federal offices - but the Constitution then specifically delegates back down to the states the right to establish the time, place, and manner of such elections. With no such delegation under 14A S3, the States didn’t get any power to enforce that Section - so it’s all still with the federal government.


Curious then that the amendment specifically provides a remedy to overcome the “insurrection” charge, and it is given specifically to “2/3 of each House”. If it’s necessary to specify the remedy thus, why isn’t the automatic assumption that the cause is brought by someone else.

(*IOW: Who would disallow a candidate for “insurrection” if 2/3 of the Houses can bring it back? The original 1/3 of the Houses who said “No, you can’t be a candidate? This makes no sense.)


I agree with you that standards vary across the board, mostly to the detriment of our democracy; gerrymandering, voting hours, number of voting machines, where voting occurs, early voting, voting by mail, drop boxes, etc. But these are not specifically mentioned in the Constitution.

Let’s take something like the 22nd Amendment:

“No person shall be elected to the office of the President more than twice, …”

Is this really a question we want Congress to decide? I would hope not. Their decision would a political one. Of course, the same argument could be made for our courts, but at least in theory it’s supposed to be based on the law.

1 Like

The cause can be brought by someone else. SCOTUS simply held that an act of Congress is required to implement 14A S3. Congress would have the power to adopt whatever enforcement mechanism it saw fit in such a statute (subject to other laws). It could provide that the disability inheres automatically in the case of criminal conviction, it could allow DOJ to bring civil disqualification actions based on insurrection claims - it could even allow for “private attorneys general” to bring enforcement cases, if it chose.

But in the end, there is always a constitutionally required backstop that 2/3 of each chamber can remove the disability, no matter what the mode or method of making a determination that such disability exists.


So in other words the DoJ would look like Biden ordered it. That would wreak.

That would be unacceptable to most Americans. Including me. Looking into the future that would be very dangerous.

Of course, Congress could pass a law that set up a commission whose job it was to verify the eligibility of candidates in a non-political way.

There would be no faith in that.

adding we should never be in this position.

Well, “who” would be the someone else?

As this fellow, former Republican (moved to Independent in 2018 because, um,) explains better than I:

But instead of any of these options, the court went with arguably the broadest reasoning available: that Section 3 isn’t self-executing, and thus has no force or effect in the absence of congressional action. This argument is rooted in Section 5 of the amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

But Section 5, on its face, does not give Congress exclusive power to enforce the amendment. As Justices Elena Kagan, Sotomayor and Ketanji Brown Jackson pointed out in their own separate concurring opinion, “All the Reconstruction amendments (including the due process and equal protection guarantees and prohibition of slavery) ‘are self-executing,’ meaning that they do not depend on legislation.” While Congress may pass legislation to help enforce the 14th Amendment, it is not required to do so, and the 14th Amendment still binds federal, state and local governments even if Congress refuses to act.


That all the justices, despite obvious differences in legal philosophy and political foundational thought, agreed in their various ways to this judgment makes me suspect that something still unknown is afoot.

The justices are NOT to make bargains or side agreements or…, but that still leaves a lot of room for maneuver, and makes me go hmmmm.

Where is that other shoe?

d fb


So, does the enforcement require the same supermajority as a vote to waive the disqualification, or a simple majority?

If enforcement required a vote by Congress, why is there a provision for a vote to waive the prohibition? Seems counterintuitive, if enforcement is discretionary in the first place.


1 Like

Under the majority ruling, it would be whoever Congress provided, and however they provided it. To take the most generic version of that kind of enabling legislation, Congress could simply provide that any other candidate for the office could file a claim in the district court where the contested candidate lived - setting a deadline and procedures and perhaps definitions of contested terms - and let the process work out. The majority isn’t contemplating that Congress would make the determination whether someone had violated 14A S3, just that it’s necessary for them to set up the rules by which those determinations would be made.


In other words, this Constitutional issue should be resolved by a political body, not a judicial one.

Dad thinks there is a deal 14A for no immunity.

Probably not. If Congress took up the issue, they would likely provide for a judicial determination of whether someone has engaged in insurrection or given aid and comfort to our enemies. Or just that conviction of the analogous federal crimes constituted a determination of same.

Hmm. So the political body should act like a judicial body while the judicial body acts like a political body.

Strange times.


I’m not sure where you’re getting that from. The Court is (essentially) saying that for anyone to have a cause of action to enforce 14AS3 judicially, the legislative body has to pass a statute to create that cause of action.

Though even if that were the case, it wouldn’t be unique. Article I Section 5 of the Constitution provides that “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” There’s a very good argument that the Courts can’t strike someone from a ballot or from holding office as a U.S. Rep or a Senator based on 14AS3, regardless of whether Congress passes a law, because that particular function has been allocated to the House and Senate (respectively) to be the “Judge.”


It’s absolutely nuts that this is even being considered by the courts. “A president without immunity cannot function”, and yet for 240+ years they have functioned. Absolutely nuts. And if SCOTUS grants immunity, does that mean Biden can enact seal team 6 to take out his rival? That is what the TFG said, after all.

Absolutely nuts. Put this guy in jail for crying out loud.

1 Like

Yes, and he/she could also take out all of the opposing senators so that there could be no successful impeachment. Of course, this court is very well aware that there is only one person who would do this and it is not the current incumbent.


What we want what we get from the law are two different things.

I do not want any of this stuff revisiting ever again. The last time it was the Civil War.