Because in one case the law is clearly being broken, and in the other it’s not. It’s not any more complicated than that.
I just don’t see how SCOTUS can avoid ruling on this, as much they’d prefer to avoid it. How can there be a scenario where a candidate is disqualified on one state’s ballot and not on others—for the same act relative to the same Federal law?
If there was a candidate whose DOB was in question—let’s say his birth records are sketchy—who may or may not be 35, SCOTUS wouldn’t say “let each state make their own call.” He either meets the qualifications or he doesn’t. He either committed an act of insurrection or he didn’t.
I realize there are other legal questions to be answered, e.g., is the presidency even in scope for this disqualification? Well, answer them! Surely the states’ power to enact their own voting methods requires them to do so within the lines the Constitution demands. This candidate is either disqualified for committing insurrection—for every state—or he is not. How could it be otherwise?
ISTM it would be tremendously shortsighted and cowardly for the only court that can resolve this critical question across the board to refuse to do so.
Sizable ignorance fought. Thank you.
But (and apologies for being reductionist), if SCOTUS won’t hear the case, who determines that the law is clearly being broken?
I agree. And I think their ruling must therefore also clearly define “engaged in insurrection.”
Then the Dems (actually the Biden reelection campaign) takes it to federal court. Just because SCOTUS refuses to hear the case doesn’t mean that lower level courts have to refuse too.
Yes! It was ambiguously drafted. Oh, well—they have to exercise their tremendous talent for telling us exactly what it means.
It will be a new case with different circumstances.
This too.
So you’re saying that this is the exact argument that Republicans will use? (not in court, but in public)
Don’t ask me to predict what Republicans will do, that’s like asking me where a tornado is going to go. 
Because it’s possible to interpret the Federal law as delegating the decision about who can be on each state’s ballot to the state, and there’s no Consitutional procedure specified for the finding of fact about whether someone committed insurrection?
I’m not saying it’s sensible that there should be contradictory findings of fact in different states, but common sense does not seem to govern any other aspect of the American treatment of the Constitution as an infallible religious text.
I’m certainly no constitutional scholar, but I don’t think so. No reasonable interpretation, anyway. Someone can’t be qualified for a national office in one state but not another, ISTM.
In fact, didn’t the higher courts already put the kibosh on one state’s (California?) attempt to require the release of X years of tax returns to be a presidential candidate on the state’s ballot, the rationale being that individual states don’t get to decide presidential qualifications such as these?
Right now, this moment, Trump is either disqualified for having committed insurrection or he is not, per a Federal law. Same as if he is either older than 35 or he isn’t (a much easier qualification to establish, of course). How can that be so in a single state but not others?
Though I doubt much will come of this, in theory it is a path for traditional Republicans to pick a sane candidate.
This article in the NYT claims (which surprised me greatly, though probably shouldn’t have):
A fundamentally conservative court, with a six-justice majority of Republican appointees that includes three named by Mr. Trump himself, has not been particularly receptive to his arguments.
Indeed, the Trump administration had the worst Supreme Court record of any since at least the Roosevelt administration, according to data developed by Lee Epstein and Rebecca L. Brown, law professors at the University of Southern California, for an article in Presidential Studies Quarterly.
“Whether Trump’s poor performance speaks to the court’s view of him and his administration or to the justices’ increasing willingness to check executive authority, we can’t say,” the two professors wrote in an email. “Either way, though, the data suggest a bumpy road for Trump in cases implicating presidential power.”
Remember when I jokingly said that Red States would say that letting migrants in was insurrection? I thought I was joking but after reading Patrick’s statement, maybe I’m prophetic.
That’s a rather stupid false dichotomy. The explanation for Trump’s poor performance is obviously the merits of his arguments.
So the law is clear, that if someone committed insurrection they are not eligible for office (aside from the ridiculous idea that “office” in 14A does not include the presidency).
I guess that means the Supreme Court must essentially determine whether Colorado’s finding that Trump committed insurrection is correct. What will that look like? It’s hard to imagine that looking like anything other than a criminal trial, even if technically it’s not. Will they ask Jack Smith what he has?
Great question. I certainly have no idea, and they may well rule in a manner that says due process for such a disqualification requires a criminal conviction. The 14th doesn’t say so, but SCOTUS may decide that’s the only reasonable threshold.
Or they may rule there’s a due process requirement X to establish insurrection, and Trump by definition would not be considered an insurrectionist, even in the absence of said due diligence (so everybody calm down, he’s on the ballot).
But whatever they come up with, ISTM they have to come up with something. They’re the only ones who can make the call.
So… insurrection is defined in criminal law under 18 U.S. Code § 2383.
But I think he hasn’t been charged in any of the cases under that statute, right? Certainly not in the DC case.
So if the SC sets criminal conviction for insurrection as the standard, it would appear that even if he’s convicted in the DC case he remains eligible for office.
That seems like the right read to me, if SCOTUS is that prescriptive in their definition of insurrection. In any event, it would answer the question, I think.
And if they say yes, I’m assuming since it is a constitutional question he would be off the ballot in every state and DC.
If they do this, it would be amusing if Jack Smith then adds 18 USC 2383 in a superseding indictment. (Although it would probably just add more room for delay in the DC trial.)