Funny how the justice whose wife was directly involved with the attempt to over-throw the election didn’t recuse himself from the matter.
I suspect the ruling will be to keep all candidates for national races on the ballot by a vote of 9-0. Otherwise, it becomes chaotic.
What will not be resolved is, how do we keep a candidate who is Constitutionally unqualified to hold the office off the ballot.
For example, if a 30 year old runs for the office of President, how do we ensure they can’t become President per the Constitution.
Constitutional qualifications to become President:
-Natural born citizen
-At least 35 years of age
-Shall not have engaged in insurrection or rebellion against the same, nor given aid or comfort to the enemies thereof.
-Previously elected to 2 terms
-Lived in the US for at least 14 years
That’s what I’m hearing as well. What will be interesting will be to see if all 9 can agree on a single opinion or if we will get concurring opinions.
One question I haven’t seen talked about (and we’ll have to wait for the Supreme’s to issue their opinion) is since it appears that going through potentially 50 state courts isn’t the right way to do it, how does the 14th amendment get enforced?
More directly, what about a lawsuit in Federal Court rather than a state court? That puts the question directly into the Federal system, which theoretically will ultimately eliminate the chaos as eventually one court will resolve the question for the entire country.
Will the opinion provide some hints as to guidance for enforcement? Hopefully so, as they may just be kicking the can down the road to some date closer to the general election.
Looks like SCOTUS is implying the need for enabling legislation from the USA Congress in order to implement.
I expect they were basically being political, as agreeing with Colorado would cause mayhem and uproar at a level even more dangerous than we have now,
So, they balance by agreeing with New York State that there is nothing like Prez immunity for someone who is no longer Prez, and probably not even for Prez.
Not to miss a key point, what would happen to the stock market if the USA fails to achieve sufficient concensus in the election and inauguration for the next term?
Congress could reinstate the quo warranto provisions from The Enforcement Act of 1870. This is never going to happen, and doesn’t really change anything. This is how it would play out:
- Say Congress reinstates The Enforcement Act of 1870 Section 14, just as a hypothetical.
- Say an insurrectionist gets elected President, just as a hypothetical.
- The U.S. district attorney for D.C. would go to federal court to get a writ of quo warranto.
- The Justice Department would say sitting Presidents can’t be bothered, and quash the writ.
- The district attorney would get fired or reassigned.
In effect, the USSC is saying 14A Section 3 does not apply to the President. Impeachment remains an option for Congress to act if needed. There is also U.S.C.2383, that says someone convicted of insurrection can’t hold a U.S. federal office.
Congress replaced 14A Section 3 with 18 U.S.C. § 2383. (The Enforcement Act of 1870 Section 14 was repealed in 1948. )
=== links ===
18 U.S.C. § 2383 Rebellion or insurrection (became law in 1948)
“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
USSC oral argument, February 8, 2024
“JUSTICE KAGAN: So, on this theory, what is the sum total of ways that Section 3 can be enforced?
MR. MITCHELL: So the answer to that question is going to depend on what Your Honor thinks of Griffin’s Case. So, if this Court were to affirm the rationale of Griffin’s Case, then the only way Section 3 could be enforced is through congressional legislation that creates a remedy. So Congress could reinstate the quo warranto provisions that they initially had in the 1870.”
The Enforcement Act of 1870
“That whenever any person shall hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Contitution of the United States, it shall be the duty of the district attorney of the United States for the district in which such person shall hold office, as aforesaid, to proceed against such person, by writ of quo warranto, returnable to the circuit or district court of the United States in such district, and to prosecute the same to the removal of such person from office; and any writ of quo warranto so brought, as aforesaid, shall take precedence of all other cases on the docket of the court to which it is made returnable, and shall not be continued unless for cause proved to the satisfaction of the court.”
The justices asked what is to stop other states from making such decisions for everyone.
There are a few points about this.
The CO SC is not making the decision in reality the USSC would make the decision.
14A 3 is clear. This was a riot but not just any riot. The entire thrust was to stop the legal transfer of power. It is dumb to think that is just a riot.
This case is not frivolous. The court should not entertain that frivolous cases preclude major cases.
Yes Texas from now on will challenge all Democrats who run for office. Like I said fabricated and frivolous case are easy to distinguish.
Naivety is thinking that ruling for Trump to be on the ballet would ever stop Texas from rushing the courts non stop for the next twenty years with these cases.
This is not a matter for Congress to decide. The amendment is the law. The application of the law out of the 39th Congress is straightforward.
Not showing up for the job is a constant for our officials. That is the only reason the court will punt. But I doubt that is the case.
My comment today is not a precursor for the ruling. What the court does with the briefs will be very different than the tough questions asked today. The questions and answers may have played as tough but really were nonstarters. What other stated would challenge is unimportant to this case.
I heard a very interesting analysis of the proceedings that has me wondering…
The gist is that in the past, insurrectionists would still run and win elections and then Congress, by a 2/3rds vote, could and sometimes did approve a waiver to actually allow them to serve - that absent that vote, they were barred from office. I see that remedy as a potential off-ramp for the justices in a 9-0 ruling.
That of course begs the question as to how those individuals were originally deemed insurrectionists and need of such a waiver. Who made that decision in the past?
TMF got around to pulling my link to the audio of the SCOTUS proceedings about 11 hours after the hearing ended.
So SCOTUS does what it usually does in really controversial cases: weasel out of making a decision? Of course, if someone was elected, let’s assume winning the popular as well as electoral vote, someone really charismatic, but unqualified, say born in Austria, and Congress refuses to issue a waiver, would the charismatic’s followers riot, and intimidate Congress into issuing the waiver?
This USSC debate is about whether TFG should be on the ballot. Next year, the USSC will probably have an Insurrection decision to make. If TFG wins in November, then all is good, it was a “fair and balanced” Election. If TFG loses in November, then there was rampant Election Fraud, and the Patriots must be rallied to Save Our Elections. TFG basically does this every single time he loses any vote, even in Primaries ( scream fraud, not rally the Patriots, he will save that for the national election ).
So we are going to be treated to this theater performance all over again in the near future, most likely.
Apples and oranges. Birthplace is better defined than insurrectionist and is covered in a different section.
Yep. Almost every Justice expressed concern over the fact that different state courts, reviewing different evidence, under different rules of procedure, applying different constructions of the relevant terms, might reach different conclusions on candidate eligibility. That’s something you wouldn’t expect over questions like, “Has this person previously been elected President twice” or “Is this person over the age of 35?” That’s definitely going to shape their view of the correct outcome.
The Colorado court was a trial. Both sides had legal representation and offered evidence. TFG was found guilty. So, the question is more about whether that guilty verdict disqualifies him. If he is held to not be disqualified, that creates a question about any and all “qualifications” for office, from term limits to citizenship. I suspect the court will punt the core issue, say something like “qualifications for POTUS are a Federal issue, outside the jurisdiction of state courts”. So, the Colorado decision will be vacated, with nothing really decided.
Isn’t that why the Supremes take on these cases, though? Yes, every state could do something different, but the high court is there to make a decision about 14-3 and not just say “well, because one state decides something one way and another a different way, we should use that as an excuse not to actually determine what 14-3 says.”
No. The SCOTUS is not a trier of fact (certain exceptions not relevant here), and generally will defer to factual determinations made in lower courts (certain exceptions probably not relevant here). So in matters involving contested questions of fact, it’s the trial court that’s the most important court - not the appellate courts.
The entire reason the federal judiciary exists is because the Founders were concerned - probably correctly - that state courts will, on the whole, be influenced by state interests. That they might reach different conclusions on the same facts, or might have different procedures that favored/disfavored state residents and interests vs. out-of-state residents and interests. Therefore, disputes involving federal officials and the federal government, as well as citizens from outside of any particular state, are to be judged in courts that are not under the control of the state governments, but instead are federally appointed and insulated (to some extent) from political influence by having lifetime appointments. Structurally, the Constitution is very cognizant that state courts are part of state governments - and that while they might be somewhat independent, they won’t be as independent from state government as a federal court.
So the core problem with the Colorado case is that they filed in a state court rather than a federal court?
So they join other similarly concerned citizens around the country and file in a Federal District court asking that court to order election officials in every state to remove a candidate from the ballot.
That actually makes some sense. While it seems to invade the states’ rights to run election as they see fit, those rights have been supervised before with multiple voting rights acts.
The only remaining question being which District court would have jurisdiction? At first blush, DC seems to be the place.
Hopefully, there will be some hints in the opinion(s) as to what process might have a better chance of withstanding USSC scrutiny.
We don’t know. Certainly SCOTUS was pretty skeptical of the idea that a state court has the power to make a determination like this. But they haven’t issued their decision yet. They might also accept one of the other arguments that would invalidate the decision, and that might block a federal court as well.
I listened to the entire oral argument, as well as some commentary after.
I just found this that further sheds light on the topic. Note it was written in 2021 so it is nicely removed from the recent events and focuses more on the history of Section 3: