As you presumably are aware the United States Supreme Court has reversed the ruling of the Colorado Supreme Court barring Donald Trump from that state’s Republican primary. Frequent commenter PD Shaw’s prediction of that outcome was materially correct. The decision was reversed and it was reversed on the grounds that the provision of the 14th Amendment is not self-enforcing.
The decision also satisfied my aspiration in that the justices agreed unanimously in the reversal (although there were differences of opinion in other respects). The big news is that it was 9-0. Although it should I doubt that will deter those who disagree with this decision from condemning it.
After listening to the oral arguments, I thought the decision would come sooner. They all seemed to be mostly in agreement that Colorado shouldn’t do this, but not necessarily about the reasons.
The oddest thing about the oral argument, even more so now, is that Trump’s attorney did not advance the argument that Article 3 is not self-executing in his opening statement. Thomas immediately asked him to discuss it, and the questioning was initially about that argument.
Justice Jackson gave the best historical framing for why the President was not covered by Article 3 and Trump’s lawyer pushed back on it. Usually, an advocate would say something to the effect of “you’re quite correct Justice Jackson, there are so many things wrong here that we really tried to focus on the one that we felt might be most successful at.”
My understanding is that the self-enforcing issue was evident on its face. Its simply the constitutional reading.
It appears some justices questioned as to whether legislation could alter that self evident issue. Seems to me that might go to a fundamental constitutional issue, in the absence of an amendment. .
My read of the opinion was the majority said that states cannot enforce section 3 on Federal offices on their own accord; they can only do it pursuent to Congress affirmatively delegating the power through section 5 legislation.
The minority would have left out the whole second clause about section 5 or Congress.
It’s actually a very narrow holding. Trump or anyone associated with Jan 6th can be banned from state offices. It also didn’t (and probably wisely) clarify if the Federal Judiciary can enforce section 3 without section 5 legislation; through reading the tea leafs the majorities reasoning would suggest it applies to the Federal Judiciary as much as it does to States.
@Curious, the opinion also recognized that the Senate and House have the power to refuse to seat or remove someone under their own procedures under Article I.
But I think it’s pretty clear that the per curium opinion leaves no other federal authority to enforce Section 3 other than by conviction under the criminal provisions for punishing insurrection.
I think Sotomayor’s more limited view would leave open three possible avenues:
1. federal lawsuits similar to those that sought to remove Obama from ballots or from office because of allegations he wasn’t qualified. I don’t think any of those cases met the requirements for standing. Notably state standing requirements are usually less strict, so that was part of the appeal of bringing these challenges through the state systems. Does Biden have standing?
2. Congress rejecting electoral votes cast for Trump. This seems highly unlikely as a practical matter given that the Congress acts at the joint session by state and majority of states would likely be in the R column. But the Electoral College Reform Act, as currently written, probably doesn’t meet the requirements of enforcement legislation.
3. Collateral attacks on federal action during Trump’s presidency. The concurrence gives an example: “judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score.” This seems rather ominous to me if the point is that Trump appointees (or retainees) will have their official acts challenged on the grounds that Trump is not qualified to be President. Perhaps this is a reference to people that Trump might appoint that were themselves insurrectionists? During oral argument, Justice Gorsuch pressed questions about whether a soldier would be justified to ignore commands on the grounds that Trump was not qualified to be commander in chief. The de facto officer doctrine was pressed as mitigating any potential secondary consequences, but it seemed unclear how that worked if the provision is self-executing.
My impression is that of the four women, Sotomayor thinks the per curium opinion was legally wrong in addressing federal matters and Barrett thought the per curium opinion went further than needed as a matter of politeness or efficiency. The other two are somewhere between.
On #2. The electoral college reform act and preexisting precedent is that if a majority of the Senate and the House (as separate bodies) concur that a states electoral votes are not regularly given (for whatever reason); then they are not counted. If enough votes are rejected such that neither Trump or Biden can obtain a majority of electoral votes, then it gets thrown into a contingent election where the House votes by State for President and a majority of States are required to win.
The Republicans have a majority in 27 states caucus only. Only 1 state above the requirement of 26.
If the voters decided to return a Democratic House and Senate — they have it in their power to force a contingent election and depending on the results, maybe even deadlock the contingent election.
#3 I think is a given. It will be unprecedented lawfare. Probably one of the greatest risks of a potential second Trump presidentcy.
#2, I think the Court’s opinion is fairly read to expect Congress to pass “appropriate” legislation” to enforce Section 3 subject to judicial review, meaning that a law would have to consciously address the needs of Section 3. But the electoral vote count isn’t really a judicial process, so it would really be how Congress would decide to act. I’m not convinced that a Democratic majority of states would vote in unison to elect Biden. I can see crowds gathering for the vote count . . .