I thought the word “devastating,” in the Newsweek article, was a bit strong. If it gets to the Supreme Court, they still are likely to rule in Trump’s favor. But if they do it on the basis of a drafter’s technical oversight which goes against obvious original intent, it will look bad — at least to some.
I wonder if the Supreme Court can say they don’t have to rule on whether Trump in an insurrectionist because of the technical issue.
They can say they are unwilling to rule on any and every question put to them. Denying cert to troublesome cases that are no-win tarbabies from SCOTUS’s own narrow institutional POV has a long history.
They have no obligation to justify their decisions to deny cert. If they do take on a case, then they have the obligation to decide, and to explain their logic in a way that passes the laugh test for at least most of the legal scholar community. Which can be a very tall order at times.
Wouldn’t it go straight from the Colorado Supreme Court to the federal Supreme Court?
If I am correct there, my logic is that the Colorado Supreme Court would be the venue most likely to rule against Trump. If they won’t rule against Trump, that’s probably the end of it. But if they do rule against Trump, I’m thinking the Republicans on the Supreme Court will want to take the case.
I suppose Trump could easily win the nomination with zero delegates from one or two states. But I recall some pundits being pretty sure the Supreme Court wouldn’t allow such ballot inconsistency.
There’s no automatic right of appeal from state Supreme Court to US Supreme Court. A potential appellant had to get a writ of certiorari from the US Supreme Court, as @LSLGuy says.
To ask my last question another way, can it go to any federal court other than the Supreme Court? If not, and the Colorado Supreme Court rules against Trump, the federal Supreme Court has to either accept that their presumed favorite will get zero Colorado delegates, and probably not be on the Colorado general election ballot, or they have to take the case, right?
Someone might say that Colorado doesn’t matter because it is a blue state. But with Trump off the ballot, a lot of Republicans would stay home. No so good for Rep. Boebert. There must also be county and municipal Republicans who would lose without Trump on the ballot.
Trump was already found to be an insurrectionist and that won’t be re-decided on appeal. In general, according to my understanding, and IANAL, appeals courts give great latitude to the lower courts on the lower courts’ findings of fact. The lower courts were there to hear the testimony, the appeals court wasn’t, so they defer to the lower courts on that.
It’s on findings of law that appeals courts can change what a lower court decided. In this case, the finding of fact was that Trump engaged in insurrection. The finding of law was that the 14th Amendment Section 3 doesn’t apply to the office of President. That finding of law could be changed, but the finding of fact that he engaged in insurrection almost certainly won’t.
your question caused me to wonder about a “write in” in colorado. i found the following:
DENVER – Write-in votes for President in Colorado will not count unless you choose from six registered candidates.
In Colorado, write-in candidates for President must file an affidavit with the Secretary of State’s Office 110 days before the election.
Not that I’m aware of, but I’m not a US lawyer. The only review of state courts by lower federal courts that I can think of is habeas applications arguing that a conviction in state court infringed a federal constitutional provision.
Our US lawyer posters like @Procrustus or @Tired_and_Cranky would know better.
I just found this, from the legislative history of Fourteenth Amendment (see pages 9-10), showing they did think about it, or something close to it:
Thanks for this. So it seems that some of them DID anticipate the possibility of using this amendment on a president or vice president. I guess what they could not fathom is that a judicial process could not (or would refuse to) understand this.
The language does seem clear Maybe they needed to bold a word for the courts: “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’”
the good thing is that in the decision from the judge in colorado, it was ruled that trump engaged in an insurrection". that part is solid and should not need to be remanded back for a decision.
the appeals are mostly going to be on the wording of the amendment and does it include the president and vice president.
during an segment that had katyal and luttig, they discussed what appeals arguments may be in the offing. the fact that sometimes constitutional "t"s and "i"s were not crossed and dotted is very frustrating.
I’m a little unclear on the judge’s ruling. The ruling says that Trump did engage in insurrection, but the clause doesn’t apply to the President.
Which part doesn’t apply, exactly?
was it:
or
Number 2. The ruling is that somehow the President is not an officer of the US. This has been discussed upthread but I don’t remember the reasoning. (I do remember thinking it was faulty reasoning, though.)
The way I read pages 95 to101 of Judge Wallace’s decision previously linked, Trump can run for any office.
On page 100, she writes “that there are persuasive arguments on both sides,” while still ruling for Trump. The way I read it, the “persuasive arguments on both sides” just applies to the question of whether Trump can run for Congress. On the main question, of whether he can run for President, she seems to me a bit less hesitant. But there may be other interpretations possible.
I wonder if that phrase “there are persuasive arguments on both sides” is just a normal polite way for a judge to show respect to all litigants, or if it is an unusual signal to the appeals court to give this a second look.
I get that, but it’s still ambiguous.
The Constitution says:
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 …
It’s not clear whether the objection is to the first or second use of “office”.
The first: Trump is barred from holding office, but POTUS isn’t an office, so he isn’t barred.
The second: The clause applies to office-holders who engaged in insurrection, but POTUS isn’t an office, so it doesn’t apply to Trump.
Maybe it was both of them.
Passing the laugh test hasn’t been a high priority for this Court.
Since when? Is someone really going to go full anal semantic on this one term? I have heard people call it “The Office of the President of the United States” many times.
From the, you know, Constitution:
The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years…
My objection is that if there is an exception for the not-office of the President, it should be explicitly spelled out. “No person shall… except candidates for President because…” And I have yet to see a good reason for that implied because other than absurd rules-lawyering. We do not want any insurrectionists running for any office except President because…? What was the scenario in which the founding fathers thought an insurrectionist President would be okay? “Because President isn’t an office” seems like something you’d want to spell out in the rules if that is indeed meant to be the rule.
I’m not sure the Fourteenth Amendment drafters were founding fathers.
Putting that aside, Section 3 clearly allows insurrectionists to become federal office-holders if they had never previously taken an oath to defend the Constitution of the United States.
If one of the 35 year old native born Americans, who broke into in the Capitol on January 6, and assaulted a police officer, and had never previously been a government employee, ran for office, there would be no Fourteenth Amendment problem. Section 3 is about being an oath-breaker.
The CREW filing of just a couple of days ago shows just how faulty this idiocy is: