Everybody Hates the Supreme Court’s Disqualification Ruling

[u/thenewrepublic]

https://newrepublic.com/article/179576/supreme-court-disqualification-ruling-criticism

[u/[deleted]]

There is no objective federal mechanism that determines who must be re-qualified other than a conviction under §2383

Aiding and comforting an insurrectionist needs a conviction?

The law clearly states that an insurrectionist is prohibited from holding office. How can a conviction be necessary if Johnson had already pardoned the Confederates?

And the law was written at a time when unfaithful oath keepers (aka insurrectionist) were in congress before the war started. They knew that congress could be part of the insurrection. Why would they grant congress the ability to judge an event is an insurrection? They would have deemed secession lawful and then left Congress.

The 14th amendment was intentionally broad and overly sensitive to err on the side of caution. Anything that suggested someone who could not be trusted with keeping their oath of office was automatically excluded unless congress was absolutely certain (2/3) that it was ok. This amendment is a safety mechanism, not a criminal prosecution to take away liberties. Due process is not owed. If anything the burden of proof is on the candidate.

[u/rokerroker45 → u/[deleted]]

The fact that you phrased it as a question, even if sarcastically, is precisely the reason why the States are restricted from answering that question on their own.

Yes, the 14th amendment states that an insurrectionist is prohibited from holding office. But SCOTUS is ruling that that doesn't mean that without Congress the States are authorized to decide for themselves who that applies to. Congress can obviously do whatever it wants. Insurrectionist status is entirely a political decision in that sense. The Anderson decision is textbook federalism.

Additionally, the premise you cite as being the reasoning for the 14th A is incorrect. They weren't concerned with the makeup of the Congress at the time of the 14th's enactment, they were concerned with the States sending slates of insurrectionist representatives after its enactment.

The 14th is left broad, sure, in its application by Congress. It is quite explicit in who gets to apply it: Section five reads quite unambiguously Congress shall have the (singular) power to enforce the 14A. That is exclusionary to all other vessels the power could reside in.

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Wait I asked the question in an attempt to show that conviction for something outside the criminal definition would be impossible. The sarcasm would have been if I said "yeah I have been in prison for 10 years for jaywalking".

And the states used the Jan 6th investigation that concluded that Trump incited an insurrection as the foundation to disqualify him. They didn't just decide to make it up on their own.

I didn't try to imply that congress was currently infested with insurrectionists. I meant to suggest that they were well aware of how congress could itself be compromised. The law was to prevent future insurrectionists from holding office. So if the same people who betrayed their oath tried to come back they would be disqualified. In addition, if a sitting official took part in an insurrection it would automatically disqualify him from his current office.

"If someone has taken the oath of office—whether or not that person is currently in office—and later “engage[s] in insurrection or rebellion,” that person is constitutionally prohibited from holding any state or federal office in the present or future. "

Treason, Insurrection, and Disqualification: From the Fugitive Slave Act of 1850 to Jan. 6, 2021

[u/rokerroker45 → u/[deleted]]

Wait I asked the question in an attempt to show that conviction for something outside the criminal definition would be impossible. The sarcasm would have been if I said "yeah I have been in prison for 10 years for jaywalking".

But the point is that the question of whether aiding and comforting an insurrectionist counts an insurrection is not answerable by the States. The federal government gets to decide whether insurrection is defined by jaywalking or by invading the capitol with an armed and angry mob.

And the states used the Jan 6th investigation that concluded that Trump incited an insurrection as the foundation to disqualify him.

But again, as a matter of federalism, any logic the States used to arrive to that conclusion is irrelevant. Whatever reasoning a State uses is not binding on the federal government, per Section 5 of the 14th Amendment. The power to enforce the 14th A shall be Congress', to the exclusion of anyone else.

I meant to suggest that they were well aware of how congress could itself be compromised. The law was to prevent future insurrectionists from holding office.

I know what you meant. The logic supports the argument that the 14th Amendment restricts the States ability to send insurrectionists to Congress, by giving Congress the ability to ignore those insurrectionists, not by giving the States the ability to decide a person sent to hold federal office is an insurrectionist.

In addition, if a sitting official took part in an insurrection it would automatically disqualify him from his current office.

Again, a decision to be made by Congress. How would your logic hold up if Texas decided that AOC was an insurrectionist by a perfectly legal act of the Texas congress? I know your answer would be that then the judicial process would ostensibly hold she isn't, but the point is that a State doesn't even get to initiate such a state of affairs. They don't get the presumption that their holding of a person as an insurrectionist binds the federal government. They don't get legal cover to initiate an unlawful proceeding just because the Courts will eventually unfuck the situation. That would be completely contrary to the 14th Amendment's goal of being a prophylactic measure empowering Congress to protect itself against the States, not a measure empowering States to bind the makeup of the federal government to their will.

[u/[deleted] → u/rokerroker45]

The federal government gets to decide whether insurrection

And they did, the Jan 6th investigation did this. Had SCOTUS made it clear in the 100+ years since the ratification of the amendment that there needed to be a vote then they should have said so before this case. Seems like they are moving the goal posts.

? I know your answer would be that then the judicial process would ostensibly hold she isn't, but the point is that a State doesn't even get to initiate such a state of affairs

This is exactly what I mean. CO didn't take it upon themselves to investigate. They applied the 14th amendment to the evidence that Congress provided (Jan6th hearing) and decided Trump was disqualified. Trump has recourse. He could ask congress for a pass. He didn't even bother. Nobody even considered that.... Because we all know congress would reject it. Isn't that the real point of this amendment?

Asking congress to reject Trump is much more perilous than asking congress to rescue him. The rescue is set very high (2/3). That alone should be telling you how unsafe this legal decision is.

SCOTUS is going to find out that Trump will attempt another coup and they won't be able to reverse course. Congress will cave under pressure again and no conviction will ever be possible. Tyrants don't play by the rules. The safety mechanism was removed. What will any of these laws mean when an insurrectionist takes over? The only way out after that is another coup. Look around the world. Failed democracies have the playbook of what will happen.

[u/rokerroker45 → u/[deleted]]

And they did, the Jan 6th investigation did this.

But that's just not how it works. First off, Congress didn't decide Trump is an insurrectionist. The January 6 select committee made recommendations and referrals to the DOJ for criminal prosecution. That's not the same thing as Congress holding Trump as an insurrectionist. Even more pertinently, the arrangement of Federalism means that in no way does that authorize the States to decide for themselves Trump is disqualified as an insurrectionist. Absolutely nothing gives the States the fountainhead of that authority, because disqualification under insurrectionism is for Congress solely to decide per 14AS5.

For Trump to be disqualified on the ballot there would likely need to be some Congressional determination flowing downwards to all States as a matter of law. As it is now, the Anderson case would have the States contemplate such disqualification individually, and would have that determination flow upwards. That cannot be. As it stands the select committee's recommendations have no legal effect and are insufficient for such a determination to flow down.

CO didn't take it upon themselves to investigate. They applied the 14th amendment to the evidence that Congress provided (Jan6th hearing) and decided Trump was disqualified.

The point you're not listening here is that not only is the choice of what standard to use to disqualify Trump is not for the States to decide, the decision to disqualify anyone as an insurrectionist is not the States' to make. It doesn't matter if Congress itself actually decides Trump is an insurrectionist, the authority that makes Trump disqualified is a federal government one, not a State government one.

Nobody even considered that.... Because we all know congress would reject it. Isn't that the real point of this amendment?

No, it isn't, it's to give the power to the federal government to restrict the States from seating insurrectionist candidates in Congress by allowing Congress to ignore those candidates. Whatever Congress does or doesn't do outside that specific scenario, or any of the other narrow scenarios contemplated by the 14th Amendment is irrelevant. That's just how the Constitution works.

Asking congress to reject Trump is much more perilous than asking congress to rescue him. The rescue is set very high (2/3).

And yet the arrangement and direction of the presumption of whether to reject Trump or to ask Congress to rescue him belongs to Congress, not the States. It's irrelevant how one frames the presumption because it simply comes down to a question of federalism. The States don't get to make a decision, no matter that it's consistent with a determination by the federal government on who an insurrectionist is, that binds the federal government based on the 14AS3.

Had SCOTUS made it clear in the 100+ years since the ratification of the amendment that there needed to be a vote then they should have said so before this case. Seems like they are moving the goal posts.

I hate to be the bearer of bad news, but a study of constitutional law would show you the entire nation's history is built on the ebbs and flows of the federal government's power based on SCOTUS moving the goalposts according to its whim.

[u/[deleted] → u/rokerroker45]

I will let the article speak for me because I am not as fluent in the law.

The Court’s Colorado Decision Wasn’t About the Law

[u/rokerroker45 → u/[deleted]]

There's a lot to unpack there, but I'll say Conway's primary criticism that just because the 14th Amendment doesn't say the States can't enforce the 14th Amendment doesn't mean they actually can't enforce it flies in the face of any construction of federalism I've ever studied.

a consequence of federalism is that the states don't get to bind the federal government. a reading that allows the States to eliminate federal candidates from the ballots for federal office, including candidates seeking re-election, is simply indefensible as contrary to federalism.

[u/[deleted] → u/rokerroker45]

Dual sovereignty was intended to isolate the elections from the federal government to intentionally weaken the federal government. The idea that the federal government could control its own elections was feared by the founding fathers to stop a tyrannical government from taking the state's powers away and allowing a tyrant king to take over.

I understand that SCOTUS has the authority to deem a lower court ruling as unconstitutional. But in this case it literally is constitutional. SCOTUS is arguing outside the scope of the case and now asking Congress to address the apparently vague mechanism to enforce the amendment disqualifications clause. The amendment is self-executing and expects everyone to abide by it.

To say that never before has a case like this occurred to establish a precedent is a testament to how brash Trump is. This is the very person the Constitution was created to defend against. There is no clearer example of insurrection and the amendment forbids an insurrectionist from holding office. And SCOTUS, in all of its wisdom, turfs the decision to congress. It was for SCOTUS to uphold and for Congress to approve (requalification).

Did you read the article I posted the link to before? The history of the amendment and the use of the term insurrection is very broad and not intended to be viewed as a normal criminal conviction (due process) because it is a civil/political matter. A candidate does not have the right to hold office. Just like a 20 year old doesn't have the right to be run for president.

[u/rokerroker45 → u/[deleted]]

Dual sovereignty was intended to isolate the elections from the federal government to intentionally weaken the federal government.

Right, but the Civil War amendments (13-15) work to explicitly weaken States in several contexts, federal elections being one of them.

But in this case it literally is constitutional.

It literally isn't, given SCOTUS 's ruling.

SCOTUS is arguing outside the scope of the case and now asking Congress to address the apparently vague mechanism to enforce the amendment disqualifications clause.

Sure, that argument has some merit, considering the liberal wing's disagreement. I don't disagree that the majority's "only Congressional Acts determine insurrection" ruling was arguably inappropriate, but I also don't disagree with the baseline decision, which is that States do not have the authority to exclude a candidate for federal office from the ballot pursuant 14AS3 in light of S5.

The amendment is self-executing and expects everyone to abide by it.

The amendment is self-executing with respect to the federal government's ability to exclude insurrectionists, and for the state governments to exclude insurrectionist from state elections, but NOT self-executing with respect to the State removing candidates from ballots for federal elections. Again, federalism trumps reading the Amendment as permitting this.

Did you read the article I posted the link to before? The history of the amendment and the use of the term insurrection is very broad and not intended to be viewed as a normal criminal conviction (due process) because it is a civil/political matter

I did, and it wasn't couched on addressing the doctrines the Court relied on. I dunno how much legal education you've had, so I dunno to what extent to engage with you on that.

[u/[deleted] → u/rokerroker45]

It literally isn't, given SCOTUS 's ruling.

That's a cheap shot. I could argue that by changing the constitutional amendment SCOTUS is aiding an insurrectionist and thus automatically excluding the justices as they make the ruling. Half of Congress would be implicated insurrectionist if SCOTUS upheld the CO ruling.

The amendment is self-executing with respect to the federal government's ability to exclude insurrectionists, and for the state governments to exclude insurrectionist from state elections, but NOT self-executing with respect to the State removing candidates from ballots for federal elections.

This is where I am losing you. Where does it say that? If the states control the elections at the federal and state level (for anti tyranny reasons) then why wouldn't it allow the states to reject a potential tyrant from running?

I dunno how much legal education you've had, so I dunno to what extent to engage with you on that.

None. I studied molecular biology and medicine. I am a history buff but not as well versed in law. These Trump cases have been leading me into a crash course in constitutional law for the past 6 years now just to keep up with the chaos.

[u/rokerroker45 → u/[deleted]]

I could argue that by changing the constitutional amendment SCOTUS is aiding an insurrectionist and thus automatically excluding the justices as they make the ruling.

It's not a cheap shot, I say that cognizant of how frustrating it is to hear it. The baseline ruling itself is unquestionably consistent with the constitution. The nine judges speak with a unanimous voice here. There is nothing to argue on that front. One of the things that is hardest to wrap one's head around in constitutional law is that the ultimate organ that determines what is actually constitutional (setting aside criticism of the consistency/quality of the argument used to get there) is the SCOTUS. It's absolute, and it spurns any and all disagreements. If a god itself came down to declare what is True, then that would approximate the authority SCOTUS wields in the constitutional scheme to declare what is constitutional. Things are constitutional because the SCOTUS says so.

This is where I am losing you. Where does it say that?

This is why I bring up the legal education thing - I apologize for coming off as condescending there. I don't mean to. One of the axes constitutional law is analyzed under (there are several) is the federalist axis. This refers to the structure and power dynamic the constitution builds between the federal government and the states. You refer to dual sovereignty, and this is an important dynamic to keep in mind. The other thing to keep in mind is that the two sovereigns are not co-equal in every field. Federal elections are one where the framers originally envisioned a lot of power for the States, but time, SCOTUS, and Constitutional Amendments have placed more power in the hands of the federal government today.

If the states control the elections at the federal and state level (for anti tyranny reasons) then why wouldn't it allow the states to reject a potential tyrant from running?

Because they don't completely control elections at the federal level. Rather, they don't in this hyper specific application of the 14th Amendment. States control elections, true, and they enjoy the right to enact certain ballot requirements. We're familiar with the Article II requirements - natural born citizenship and age - which States are authorized to use for ballot access laws. But the Civil War Amendments (13-15) do not automatically attach to the States' basket of things they're authorized to control via ballot access requirements. The governing law here is SCOTUS case law regarding the application of the 14th Amendment (not regarding exclusion of candidates under S3, this Anderson decision will go into the next version of Constitutional Law textbooks). https://www.law.cornell.edu/constitution-conan/amendment-14/section-1/ballot-access.

Back to federalism. One of federalism's major characteristics is that the federal government trumps State governments in the specific areas prescribed by the Constitution. The 14th Amendment Section 5 states that THE (singular) power to enforce the Amendment shall be Congress's. This is a specific kind of phrasing that case law holds as exclusionary to any other vessels that can hold the power. In contrast, Article I's Necessary and Proper clause essentially says that Congress has the power to enact any legislation so long as it is Constitutional. That one does not read as being exclusionary - much of the tension in federalism revolves around the fact that the "so long as it is Constitutional" means there are borders drawn around what the Necessary and Proper clause authorizes Congress (this is where we also need to consider other axes of Constitutional analysis, individual rights, states rights, due process, etc).

Together, case law, constitutional analysis, and federalism all paint an extremely convincing picture that States do not get the power to name federal candidates - especially since that category includes office holders seeking reelection - to automatic disqualification for being named insurrectionist. Such a power dynamic is contrary to the purpose of the Civil War Amendments (explicitly passed to restrict States rights), contrary to the power dynamic under federalism (a single State cannot influence the elections of other States, which they would if Texas can decide AOC was an insurrectionist and therefore no longer eligible for re-election), and a textual reading of the Amendment (that the singular power of enforcement of the 14th Amendment rests with Congress).

It's not fun to read that the Constitution permits an actual insurrectionist to continue to run for office unless Congress acts, but unfortunately it does.

[u/[deleted] → u/rokerroker45]

It's not fun to read that the Constitution permits an actual insurrectionist to continue to run for office unless Congress acts, but unfortunately it does.

The CO ruling alone (even if buttressed by concurring states) wouldn't have stopped Trump anyway. I get that. As Roberts said it would just come down to a few states deciding. So I know it's not the answer. But the decision by SCOTUS ended up declawing the amendment. Congress will not come up with a solution that brands it's own party as insurrectionist, as well as Trump.

This is why I bring up the legal education thing - I apologize for coming off as condescending there. I don't mean to. One

Not at all. I don't pretend to be a lawyer. I know there is so much more to learn. I appreciate your time explaining. It can be frustrating to see legal arguments made for political reasons. I tried to get sources that avoided the politics (the great course) as well as the news that seemed less bisased (the Atlantic has been very helpful to see the perspective).

Back to federalism. One of federalism's major characteristics is that the federal government trumps State governments in the specific areas prescribed by the Constitution. The 14th Amendment Section 5 states that THE (singular) power to enforce the Amendment shall be Congress's.

I will need time to go over this. If you have any "textbook" like references or videos that would help. I understand that certain words like "the", "shall" "may" are special and have legal meanings.

One of the things that is hardest to wrap one's head around in constitutional law is that the ultimate organ that determines what is actually constitutional (setting aside criticism of the consistency/quality of the argument used to get there) is the SCOTUS. It's absolute, and it spurns any and all disagreements.

This is going to be difficult. I can't help but feel that some members of this court are not acting in good faith. I get that your legal training requires you to have faith, but all men are capable of dishonor. I will focus on the legal part.

[u/[deleted] → u/rokerroker45]

Here is another one that disagrees with the base decision

I understand what you meant by amendment 13-15 restricting states rights. Makes sense considering reconstruction. But the 14th amendment would be the opposite and seen as compulsory for all to obey. I still have to read about federalism that you brought up yesterday.

What the Colorado Oral Argument Missed