It sure could, because justices unwilling to carry out their oath to “support and defend the Constitution of the United States,” punted Article 3 interpretation to elected politicians. From Politico:
This morning’s decision is arguably just as bad if you are a Democrat or a Republican.
I kind of figured this as well. Makes sense actually. However, I do not feel he will be so lucky on the immunity question.
It’s in the constitutuion: Amendment 14 is part of the constitution. The SC merely demands we have laws implementing it, some rules. It already blocks those trying to overthrow the government. Just need the law to say that. It cand say “includes the president.”
I would disagree with that theory, as it conflicts with the text regarding impeachment and inability. Because these methods of removing a President are explicit, it is implied that they are exclusive. Also it makes no sense to require 2/3 of Senators present to vote for conviction if a mere law would have the same effect.
~Max
Five said yes. Three said no, and one didn’t commit. That’s binding on all other courts.
~Max
Cite that sections 1, 2, or 4 are self executing?
Without federal implementing laws like the Enforcement Acts (sec 1983), States would be immune from suit in federal court. The Constitution doesn’t give you the right to sue your state government, Congress does. (I should also mention that the Constitution itself only provides for the Supreme Court. Other federal courts exist at Congress’s whim.) The United States may overcome State sovereign immunity, and sue the State directly, but of course the Dept. of Justice is a creature of federal law, too.
So what would happen if Congress didn’t implement the 14th Amendment at all? It would fall on the State officials to respect their oath of office. The Black Codes and Jim Crow teach us that the 14th Amendment would be a dead letter. (Again.) It does not, by itself, actually protect any individual rights whatsoever.
In fact, the Radical Republicans who gave us the 14th Amendment were largely motivated by the shaky constitutional foundations of legislation they already passed.
~Max
But they did pass such an act…? IIRC U.S. District Attorneys did the dirty work of forcing individual ex-confed candidates off the ballots. It was repealed a few years later as Reconstruction wound down, following a general amnesty.
~Max
The group that brought the suit (Citizens for Responsibility and Ethics in Washington (CREW)) weighed in on the SCOTUS decision. As the headline says, they feel that what the Court decided and did not decide is important.
Did Congress at the time enact legislation applying the Equal Protection portion of the 14th Amendment to the states?
(Apologies if that was addressed upthread.)
Unlikely. One of the few laws born from the ashes of January 6 severely restricts the process of counting votes. The only valid objections now are that the electors didn’t get the proper certification from the sec. of state, or that an EC vote was cast corruptly/fraudulently/by mistake, etc.
~Max
They did so via the civil rights acts in the 1870s. President Grant did a really bad job at enforcing it. In fact Congress was so focused on equal protection it overstepped its authority and tried to legislate nondiscrimination on private entities. The Supreme Court had to step in and say the equal protection clause didn’t grant that power.
Some 100 years later, Congress justified the nondiscrimination provisions of the civil rights act of 1965 with its commerce clause power from Article I.
~Max
Which was not the specific legal question before them. The specific legal question was whether Colorado as a state acting under its state jurisdiction had the authority to apply Sec. 3 to him. And all 9 agreed on this question to be ruled on.
(And as Comey-Barrett stated, they all could have just stopped there with no more comment and everyone gone home. The majority, though, went a step further by adding that on top of it being federal jurisdiction, there ALSO needs to be some sort of specific explicit Act of Congress to enforce it directly or to allow the states to enforce it.)
I don’t agree with the break in decorum on principle, but, I mean, they have the votes. 5 is a majority. And it would be way more disruptive to the country if the case came back after the election.
I’m disappointed in the lack of consideration for the electors appointment clause. States don’t have to hold elections for President. They have plenary power in the method of appointing electors, so long as they comply with due process, equal protection. They could simply forbid appointment of electors for candidates that do not meet facially neutral statutory requirements.
~Max
There was a conflict between the doctrine of only answering the specific legal question before them, and following their oath to “support and defend the Constitution of the United States.” They came down on the legalistic side, rather than the Constitutional side. Almost always, a legalistic ruling, and one that supports the Constitution, is one and the same. This time, supporting and defending the Constitution required going beyond the specific legal question before them.
If Trump loses on November 5, no biggie. But if he wins, Trump v. Anderson will go down as pure cowardice. The rest of this post explains why.
From your link:
DJT knows this, or will know it, and will not like it.
If elected, between the election and inauguration, he will come back to his already stated plan of being a day one dictator, and emphasize how he is going to ignore courts that stand in his way. Then, on January 20, 2025, John Roberts, in violation of his oath to defend the United States Constitution, will swear in a known insurrectionist oath-breaker. Next, Roberts will listen to an inaugural address explaining that, when it comes to administration edicts, the rule of law is over. All of this a certainty? No, but it is consistent with how Trump operates.
Anderson v. Trump was SCOTUS’s fleeting opportunity to enforce Article 3 against the most blatant violator in U.S. history. They should have done this by putting in place a uniform national standard reflecting a plain truth – that ordering Mike Pence to overthrow election results amounted to conducting an insurrection, so Donald Trump is disqualified from the presidency. That’s why – at least if DJT wins in November – I expect it to eventually be considered one of the worst Supreme Court decisions ever.
Hey, I don’t like that the court removed one avenue to stop his eligibility any more than you do.
BUT this was the decision almost everyone realistically familiar with the Court expected: narrow and on the strictly legal side even by the “liberal” justices and Barrett, who would have all apparently been satisfied with stopping at “no, the state of Colorado cannot just do this on their own initiative” and just left for some yet undefined future challenge addressing the question of “but how then?”
I wish to acknowledge the strength of what JRDelirious wrote here, even though I disagreed in this extraordinary situation.
Every federal employee takes an oath to support the Constitution. I was a federal employee before retirement, and interpreted the oath as a pledge to do a good ethical job, not as an invitation to take sentences from the Constitution and make issues out of them. Even a federal appeals judge shouldn’t do that.
The Supreme Court? They should only do it in extremis. But this IS extremis. So John Roberts – with backing from other justices – should have stepped forward and explained why it would be unconstitutional to swear in this fellow a second time, and let the nation know before voting.
It is part of the genius of the U.S. Constitution that all public officials at every level of American government - Federal, state and local - swear an oath to support the Constitution. See Art. VI, Sec. 3 (emphasis added):
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
It’s probably the smartest thing the Framers did in binding thirteen sometimes-quarreling states into a single nation.
My dislike of the decision is somewhat tempered by this opinion piece. The main takeaways: he agrees that section 3 is not self-executing, and argues that 2, 4, and 5 aren’t either.
The majority has not created “a special rule for the insurrection disability in Section 3,” as Sotomayor charges. It has simply concluded that Section 3 is more like Section 2 (or Section 4, or Section 5, for that matter) than Section 1.
Second, action by Congress doesn’t mean some law barring Trump from the ballot. It means a law that describes how it would be determined that someone was an insurrectionist, and how it would be enforced. And we already have that: 18 U.S.C. §2383, which criminalizes insurrection and has a penalty of disqualification from federal office.
The idea that any state judge could declare a presidential candidate an “insurrectionist,” and thereby exclude him or her from the ballot, is wrong. Obviously, there needs to be a regular procedure to make that determination, and obviously, there can’t be 51 different procedures in all the jurisdictions that send electoral votes to Congress. So, obviously, this is not a matter for the states; it is a matter for the federal government.
It seems to me equally obvious that at the federal level, the way such a rule would be “enforced” was precisely how Section 5 of the 14th Amendment said it should be “enforced”—through a law passed by Congress.
…
If there were an action to be pursued here, it would be the prosecution of Donald Trump under §2383. And if you think to yourself, That would have been too difficult, then maybe also think this: If, with the protections of due process, you don’t believe that Donald Trump would be deemed an insurrectionist, then maybe it isn’t quite right to try to declare him one on the cheap.
I do think he’s an insurrectionist, but I agree that the right approach is through prosecution, not lobbying judges. That is too easy to weaponize.
And since he left office nobody AFAIK has sought to indict him for insurrection or even for inciting a riot on federal property. Or maybe that comes under “Obstruction of official proceedings” but that is as far as it gets.
So we get into a spot where even if we all agreed that was the tool at hand, no prosecutor has felt they’d be able to meet that standard.
18 U.S.C. §2383, the insurrection statute that has disqualification as a punishment, has been on the books since 1862 with AFAIK no one ever convicted.
Section 3 was added as an additional protection. If Congress passed a law saying that you have to be convicted under 18 U.S.C. §2383 to be disqualified, it would almost be as if Section 3 was never enacted.
Think about why Trump is unlikely to be tried, this year, for anything beyond business records falsification. Our prosecutors are used to preferring complex charges then bargained down. Proving at trial, in a reasonable time frame, that someone tried to overthrow the government, beyond a reasonable doubt, is very difficult due to the nature of such a conspiracy – even with strong evidence. And the strongest evidence – government actually overthrown – won’t ever be heard by a court, since, well, the government was overthrown (and rule of law is limited during full-scale civil war).
Being unqualified to run for office is not a crime. You don’t have to be convicted of being foreign born to be disqualified for the presidency, and (unlike in the Obama case) there can be borderline cases with legitimate disputes (McCain, Cruz) where law professors disagree. Requiring a nearly impossible to get felony conviction takes too much time for Section 3 use, and makes no sense for other qualification cases.
I argued that myself, but changed my mind. If the price of stopping a real insurrectionist like Trump was that, twenty years down the road, a Democratic politician was unfairly kept off a ballot, that’s a shame. But someone else, with similar views, and very possibly more electable, would likely then be nominated.
Question: Would a federal judge swearing in Donald Trump violate their oath of office? Yes, and, now, respect for democracy requires that one of them does it!