Supreme Court Restores Trump to Colorado Ballot
The Supreme Court has ruled unanimously to restore former President Donald Trump to the Colorado ballot, remarking “”Responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States. The judgment of the Colorado court therefore cannot stand. All nine Members of the Court agree with that result.”
Read the Supreme Court Restores Trump ruling for yourself here:
Supreme Court Restores Trump
The case is the court’s most direct involvement in a presidential election since Bush v. Gore, a decision delivered a quarter-century ago that effectively handed the 2000 election to Republican George W. Bush. And it’s just one of several cases involving Trump directly or that could affect his chances of becoming president again, including a case scheduled for arguments in late April about whether he can be criminally prosecuted on election interference charges, including his role in the Jan. 6 Capitol attack. The timing of the high court’s intervention has raised questions about whether Trump will be tried before the November election.
Soledad and Kim WehleSupreme Court Hears Case on President Trump’s Colorado Ballot Disqualification
The arguments in February were the first time the high court had heard a case involving Section 3. The two-sentence provision, intended to keep some Confederates from holding office again, says that those who violate oaths to support the Constitution are barred from various positions including congressional offices or serving as presidential electors. But it does not specifically mention the presidency.Conservative and liberal justices questioned the case against Trump. Their main concern was whether Congress must act before states can invoke the 14th Amendment. There also were questions about whether the president is covered by the provision.
The lawyers for Republican and independent voters who sued to remove Trump’s name from the Colorado ballot had argued that there is ample evidence that the events of Jan. 6 constituted an insurrection and that it was incited by Trump, who had exhorted a crowd of his supporters at a rally outside the White House to “fight like hell.” They said it would be absurd to apply Section 3 to everything but the presidency or that Trump is somehow exempt. And the provision needs no enabling legislation, they argued.
Trump’s lawyers mounted several arguments for why the amendment can’t be used to keep him off the ballot. They contended the Jan. 6 riot wasn’t an insurrection and, even if it was, Trump did not go to the Capitol or join the rioters. The wording of the amendment also excludes the presidency and candidates running for president, they said. Even if all those arguments failed, they said, Congress must pass legislation to reinvigorate Section 3.
The case was decided by a court that includes three justices appointed by Trump when he was president.
I do note – and it’s non-trivial – that when discussing the presidency, SCOTUS keeps using federal officer and officeholders interchangeably. Which means they seem to think the President is a federal officer . . . .Report
PityReport
To quote America’s chief insurrectionist, “Died of a theory.”Report
Sounds about right…
1. Section 5, 1870 Enforcement act, and Sedition act of 1948 (Section 2383)
2. Patchwork objections.
https://ordinary-times.com/2023/12/19/colorado-supreme-court-disqualifies-trump-from-2024-primary-ballot/#comment-3951370
Edit: I think the fact that they largely ignored the primary Trump defense that he isn’t subject to Section three qua President might play in the next case.Report
except they didn’t in as much as they kept referring to the election of federal officers and federal office holders interchangeably through the opinion issued today. Given that this opinion was only about the President, I’d say they actually settled it, however inadvertently.Report
Yes, I’m tentatively agreeing that the fact that the *primary* argument of Team Trump that Section 3 doesn’t apply to the President was ignored by SCOTUS hints that very extreme ideas of the imperial presidency may come up short.Report
It may have been obvious to you, but it’s amusing that the lack of Congressional action was not one of the reasons given by Trump’s lawyer in his preliminary summary of their case at oral argument. After he gave two reasons, he opened the floor to questions and Thomas’ first question was I didn’t hear much in there about self-executing, would you address that?
He had argued (1) the POTUS is not an “officer of the United States” as that term is used in the Constitution, and (2) Colorado improperly added a qualification in that Section 3 imposes a restriction on holding office, not being elected to office, and it expressly contemplates Congressional authority to lift the restriction.Report
Agreed, I was always baffled by the weird focus on President/Officer, etc.
I have some suspicions that they might have had concerns about a vigorous Section 5 defense pointing out that he could still be tried under the 1948 Sedition Act and/or Congress could retroactively(?) declare Jan6 an Insurrection and therefore went for the whole immunity enchilada.Report
The argument has the benefit of pre-existing legal authority. There is a Roberts majority opinion from the early oughts and there is Justice Story’s Constitution law treatise cited in the per curium that support the principle that “officers of the United States” are unelected officials. Someone can distinguish the Roberts decision in that it was dealing with the appointments clause, but it’s hard to argue that the distinction is absurd or completely fabricated.
I think the argument lacked public appeal. Justice Jackson liked the argument, she seemed to be trying to persuade Trump’s attorney to go with it. If she had written it, there would be broader appeal, but there probably weren’t as many votes.Report
Wait, so the post-Civil War Congress WASN”T trying to keep confederates from being elected? Huh?Report
Justice Jackson explained why she thought the President wasn’t listed in Section 3 at oral argument:
“I thought that the history of the Fourteenth Amendment actually provides the reason for why the presidency may not be included. And by that, I mean I didn’t see any evidence that the presidency was top of mind for the Framers when they were drafting Section 3 because they were actually dealing with a different issue.
“The pressing concern, at least as I see the historical record, was actually what was going on at lower levels of the government, the possible infiltration and embedding of insurrectionists into the state government apparatus and the real risk that former Confederates might return to power in the south via state-level elections either in local offices or as representatives of the states in Congress. And that’s a very different lens.
“Your concern is trying to make sure that these people don’t come back through the state apparatus and control the government in that direction seems to me very different than the worry that an insurrectionist will seize control of the entire national government through the presidency.”Report
while annoying, I do see where they’re coming from.
If Tump had been convicted of a crime that was tantamount to insurrection then I could see this flying, but as it stands if individual states can just rule candidates out on these grounds then what’s to stop (for example) Texas declaring every Democratic candidate an insurrectionist from here on out?
There needs to be some kind of process put in place for this to work.Report
While I agree with this as a matter of policy, I’m not sure it matters legally.Report
I’m sure that you could find someone somewhere willing to discuss that with you. I doubt anyone here cares, though.Report
If anyone wants to play, I’ll play. Fair warning, though, we’d be getting into tl;dr territory. But I’m not soliciting and am willing to accept the verdict of the market.Report
I’m delighted that they mustered up a 9-0 opinion. What a massive relief. I’m not surprised Trump remains on the ballot- the whole case was just way too much “one neat trick to deal with Trump” and “working the refs”. The only serious way to defang Trump is to whup him in the election.Report