When the Supreme Court reviews Colorado’s decision to exclude President Trump from the state’s ballot, it will be delving into wholly uncharted territory.
The Supreme Court has never interpreted the constitutional provision prohibiting former office-holding insurrectionists from holding future office. Several leading constitutional scholars argue that, in part for this reason, the constitutional ban cannot be enforced without prior congressional enactment of guiding directives. The high court may consider this option to provide a welcome off-ramp.
But the position that the constitutional ban on insurrectionist office holders is not activated absent congressional legislation is not only incorrect, it also threatens the very foundations of America’s constitutional system.
Brett Kavanaugh: “Hey, you, hold my beer!”
beer(s)
I highly doubt the supreme court will care about breaking apart the way we think the legal system works. They’ll just take another case that would have its handling changed, and declare that ‘this particular instance works the old way, but that other one works the new way, (stick fingers in their ears) la la la la’
The wild thing is that it was two very conservative Federalist lawyers who wrote the initial article (based on originalism) putting out the theory that Trump should be disqualified.
Further, the amendment specifically lays out Congress’s role: they can, with 2/3rds vote, remove the imposed disqualification disability.
Ezra Klein had a great podcast on this awhile back.
I think their off-ramp is going to be to just say Trump didn’t engage in insurrection for some B.S. reason. He clearly did but Alito (like most other FedSoc judges) have no problem with ignoring the actual facts of a case and then rule on some story they made up using the people involved as characters. I could easily imagine a decision that says Trump didn’t engage in insurrection because he tried to use lawyers and a rally to pressure Congress and so his intent wasn’t insurrection against the constitutional order.
And then they’ll probably say the people who did storm the Capital can be considered insurrectionists because they’re just tawdry, regular folks who would never be invited to Bohemian Grove. People in fancy suits planning and directing the coup will be presented as the naïve ones who NEVER expected violence to break out.
They’ll probably “punt” it on principal then. We’ve seen how much they care about the constitution.
They will rule he wasn’t given due process (not convicted of insurrection) and therefore can be on the ballot. It is the most straightforward path.
But that’s clearly not how the 14th Amendment is worded, none of the officers or politicians in the Confederacy were convicted of Insurrection & claiming that the 14th Amendment wasn’t supposed to cover that group would be some serious mental acrobatics.
I suspect that the SCOTUS will say the 14th Amendment is unclear and then fall back on the concept of due process. I don’t like it, but I do think that is what will happen.
