The Supreme Court unanimously nixed the clever scheme to keep Donald Trump off the Colorado ballot. The court explained its actions in the second paragraph of its anonymously written March 4th ruling: “Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse.”
That’s it. The 14th Amendment, which the Colorado gambit relied upon, does make Congress the instrument for preventing “an insurrectionist” from serving in office.
So Colorado’s ploy to rig the 2024 election out in the open has been stopped. And good thing, too, since the political repercussions could have been . . . harrowing.
A lot of commentary and reporting on the ruling has been devoted to pushing what was not covered. Take the CNN article by John Fritz and Marshall Cohen, “Trump’s on the ballot, but the Supreme Court left key constitutional questions unanswered.” It is hard not to interpret such headlines as providing excuses to partisan Democrats — in this case those at CNN — who had put so much hope in Colorado’s (and other states’) taking of the Trump matter into their own hands.
“But while the unsigned, 13-page opinion the Supreme Court handed down Monday decisively resolved the uncertainty around Trump’s eligibility for a second term,” the article explains, “it left unsettled questions that could some day boomerang back to the justices.”
True enough, but so what? Take the first mentioned: “Could Democratic lawmakers, for instance, disqualify Trump next January when the electoral votes are counted if he wins the November election?”
Well, no.
The 14th’s third section does not list presidents as barred by insurrection: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President,” it says. Electors of. But not
I’m sure the Supreme Court would be happy to expedite an opinion to that effect should the Democrats attempt anything that stupid.
This is Common Sense. I’m Paul Jacob.
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8 replies on “The Colorado Gambit Crushed”
I must partially disagree with what you assert.
Section 3 of the Fourteenth Amendment reads: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.” (Emphasis mine.)
Now, a joint super-majority in Congress would have the power to remove the disability, but nothing in the Amendment gives Congress the ability to bar some person from office simply by declaring him or her guilty of insurrection; and Article I § 9 cl. 3 prohibits bills of attainder.
Any person is prohibitted from holding any office in a constituent state or in the federal super-state if guilty of insurrection, but a trial and conviction are required for a legal finding of guilt.
The real, desperate purpose of impeaching Trump when he was no longer President was to try to have something that could be passed-off as a conviction. But trials in the Senate do not and cannot effect such findings in the face of Article I § 9 cl. 3. And, of course, the trial in the Senate was a flop.
The second impeachment failed because over forty senators decided it was unconstitutional to impeach someone after he left office. Had they succeeded in impeaching and removing Trump before his term ended, Congress could have taken a second vote to bar him from holding a federal office in the future. It’s my understanding that, in that case, a criminal conviction is not needed. 14th Amendment would not apply.
Yes.
Had the Senate voted in that second trial to convict and then to bar Trump, a challenge to the Supreme Court would likely have had at least eight Justices dismissing the procedure.
The 14th Amendment was passed by the radical Republicans in the aftermath of the misnamed Civil war to keep Confederate officials from service in the federal government, But since many former Confederates did, in fact, end up serving in the federal government the amendment proved to be essentially worthless.
That is, until the American left dredged it up in the attempt to use it to punish a former president who had never been convicted of anything related to it.
Judge J. Michael Luttig
“In reaching and deciding those questions unnecessarily, the court, the majority, as the concurrences said, effectively decided that the former president will never be disqualified from holding the presidency in 2024. Or ever, for that matter,” Luttig continued.
“But even more importantly, as the concurrence said, effectively, the court today decided that no person in the future will ever be disqualified under Section 3 of the 14th Amendment, regardless [of] whether he or she has engaged in an insurrection or rebellion against the Constitution of the United States,” he said.
Luttig compared the reach of the ruling to those of the Warren Court, largely considered the most liberal Supreme Court in recent history.
“It’s stunning in its overreach. It’s a textbook example…of the kind of activist judicial opinion from the 1960s and the Warren Court era that begat the conservative legal and judicial movement in the 1970s and 1980s. But of course, it’s different here. Because this is unmistakably a conservative court,” he said.
The Supreme Court overreached and gutted the 14th amendment to their liking! Maybe they should have found the amendment unconstitutional!
Luttig fails to point to anything actually in the Constitution, and absurdly insists that Justices Sotomayor, Kagan, and Jackson were willing to pervert Constitutional law on behalf of Donald Trump.
The appearance is that Luttig formulated a hand-waving pontification on a presumption that Sotomayor, Kagan, and Jackson would dissent, and that Luttig barrelled ahead thoughtlessly when they did not.
In any case, like Luttig, you’d have done better to have offered nothing.
Poor Danny boy!
The dems are just thowing everything they can think of, in the hopes that something sticks.