I don’t think that’s quite right. Certainly the SoS’s determinations are up for judicial review within the state they are made. That is, the SoS has to follow both the US Constitution (for determining eligibility) and the state law and state constitution (for determining the mechanisms for running state elections). I could easily see Texas SoS trying to remove Biden and then the Texas Courts either agreeing or disagreeing that he met the bar for “insurrection”. But even that decision would then be eligible for review by SCOTUS.
In this case, the Colorado state courts determined that Trump’s actions did meet the requirements to qualify as an insurrection, and the CO SoS was directed by law to remove him from the ballot. Now SCOTUS has to decide (among other things), whether they agree he met that bar (or to what extent they can even review that decision).
Whether state courts or Federal courts should be used to determine whether an individual has violated the insurrection clause is one of the key questions that I don’t think is clearly answered. I think historically the “conservative” position has been to allow States to run their elections how they prefer. That certainly has been the thrust of the recent Voting Rights act cases.
I’ll add that at this point I think Section 3 is outdated and stupid and should be removed. It might have made sense immediately after the Civil War, when multiple traitorous individuals were trying seek elected office again, but those days are long past. It should be amended and removed from the Constitution, IMO.
I would be satisfied if SCOTUS just said “Section 3 applies to folks engaged in the Civil War (of perhaps some future Civil War)” and is no longer operative.
The proper remedy for Trump’s actions are criminal and political, not disbarment via Section 3.
Agreed. I think they would actually lean into the “or given aid or comfort to the enemies thereof” part. That is plenty vague to hand-wave about the border or China or whatever and get a Texas court to uphold it.
Again, that whole clause is a mess and should be removed or amended.
They did have a civil trial. In Colorado. Both sides presented their evidence for and against excluding trump from the Colorado ballot. In the end, after appeal*, the verdict in the Civil trial was to exclude him.
Hard as it is to amend the constitution, I think this mess may well lead to a bipartisan rewrite of Section 3. That’s especially true if Trump winds up in the ballot in most states but is kept off in Colorado and Michigan (whose Supreme Court has yet to rule). No one would like that.
That is not my position. I have repeatedly stated that any decision by a Secretary of State would be subject to judicial review. It is not a legislative act, which is what a bill of attainder is.
It is a member of the executive of Colorado, the Secretary of State, making an initial determination of ballot eligibility, pursuant to the constitutional provision. When a constitutional issue is raised within the scope of the duties of an executive branch member, the supremacy clause requires them to consider the constitutional issue.
Government officials in the executive branch have to make initial assessments of their legal and constitutional obligations all the time. Those determinations are then subject to judicial review.
But he’s learned so much since then, figured out where the sticky bits are that prevented him from doing whatever he wanted last time. He reportedly already has a list of spineless bootlickers and white nationalist thugs to appoint to every high office possible as soon as possible so that he isn’t held back the way he was before. Do you think a Republican Senate or Congress will naysay him? No evidence so far that they would have the slightest bit of backbone. If they tried to block his picks he’d just make them “Acting Muckety Muck” permanently to sidestep the confirmation process.
Our democracy is held together more by ‘norms’ than actual rules and regulations. But what rules are regulations there are don’t mean much if everyone is either too scared to enforce them or just really doesn’t want to. We can’t even count on the courts to apply the brakes. They work so slowly that the damage could be incalculable before a final ruling is made.
Allow Trump to remain on the ballot and you might as well place 25 year-old Russian emigre’s on the ballot, because if one part of the Constitution’s definition of eligibility can be ignored, they all can.
Not really. I’m not a lawyer, so any argument would likely be terrible.
It does seem clear to me that at the time everybody knew what they were talking about - supporters of the South during the War Between the States. Whether they were also talking about an asshole President that gins up a mob to stop the counting of the Electoral Votes is less clear to me.
In 2007 I wanted to convert my 401k to cash, but I didn’t know how and it was difficult to reach anyone at Fidelity. Consequently, my 401k lost over half of its value. Of course it recovered, as everyone else’s did. But I would have loved to ‘sell high’ and then have bought the stocks back when I thought the stock market was at its lowest. (In actuality, it did go a bit lower; but I still would have made a bundle.)
Why less clear? The text cleraly states: “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”. There is absolutely nothing in the text to indicate “Sure it says that, but we only meant the Insurrection that ended when the Civil War did” or “Civil War only, peeps”.
This is what I was getting at with my question about precedent. Section 3 doesn’t define “insurrection” (because the authors knew they were talking about the Civil War) and doesn’t define what it means to be “engaged” in one. So apparently the answers to those questions come from whatever court (or Congress) on a case-by-case basis. Which is why we’re in very strange constitutional waters now.
Probably not, but I haven’t done the exact calculations. When you cash out a 401k, you immediately owe income tax on the whole amount plus an additional 10% penalty for early withdrawal.
Well, first of all the last bit is impossibly vague. Depending on how you define “aid or comfort” and “enemies thereof” you could pretty much tag anybody with it. Does it include providing room and board for individuals that cross the border without valid permission? I’m quite sure there are plenty of Republicans who would say it does.
Also I believe, given the time it was written, that the drafters had something pretty specific in mind. I don’t generally love the idea of taking a bit of law meant for one purpose and using it to solve another problem.
Maybe what Trump did is exactly what the clause is meant to address. But I don’t think it’s fit for that purpose.