SCOTUS Puts Trump Back on Ballots

As expected, the Supreme Court is keeping Trump on the Colorado ballot. It was a unanimous decision [maybe not; see below] that I have just given a quick skim. The gist of it seems to be that only the U.S. Congress can determine if a presidential candidate is disqualified under the 14th Amendment insurrection clause. States may disqualify candidates for state offices any way they like, but not a national office.

NBC News

The court said the Colorado Supreme Court had wrongly assumed that states can determine whether a presidential candidate or other candidate for federal office is ineligible.

The ruling makes it clear that Congress, not states, has to set rules on how the 14th Amendment provision can be enforced against federal office-seekers. As such the decision applies to all states, not just Colorado. States retain the power to bar people running for state office from appearing on the ballot under section 3.

“Because the Constitution makes Congress, rather than the states, responsible for enforcing section 3 against all federal officeholders and candidates, we reverse,” the ruling said.

By deciding the case on that legal question, the court avoided any analysis or determination of whether Trump’s actions constituted an insurrection.

I’m sure there will be all kinds of learned legal analyses of this decision as the day goes on. I’ll keep an eye out for anything interesting.

Update: Here’s something interesting. At Slate, Mark Joseph Stern writes The Supreme Court’s “Unanimous” Trump Ballot Ruling Is Actually a 5–4 Disaster.

Five justices—Chief Justice John Roberts, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—went further: They declared that only Congress may enforce the insurrection clause against federal candidates. How, exactly? The majority says that Congress must “prescribe” specific procedures to “ascertain” when an individual is disqualified under the 14th Amendment. Such procedures, of course, do not exist today. And without them, the majority insists—in just a few paragraphs of sparse reasoning—the insurrection clause cannot be enforced against office seekers. It derives this conclusion from two primary sources: “Griffin’s Case,” an 1869 opinion written by Chief Justice Salmon Chase, acting as a circuit judge, and Section 5 of the 14th Amendment, which says, “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

The three liberal justices wrote a separate opinion, authored jointly, to explain why this reasoning fails. First, Griffin’s Case was, until Monday, widely discredited as the political handiwork of a chief justice plotting to run for the presidency as a great conciliator between North and South. It is “a nonprecedential, lower court opinion by a single Justice in his capacity as a circuit judge,” as the liberal justices wrote. Moreover, Sen. Lyman Trumbull, an author of the 14th Amendment, resisted the logic of Griffin’s Case, declaring that while congressional legislation might provide a “more efficient and speedy remedy” for disqualifying a candidate, it is the 14th Amendment itself that “prevents a person from holding office.”

Second, it is bizarre to claim that the insurrection clause requires enabling legislation by Congress when the remainder of the 14th Amendment—indeed, all three amendments ratified after the Civil War—is “self-executing” (meaning it does not require congressional action for enforcement). Everyone agrees that Congress need not pass a law to ensure that all persons have due process, equal protection, and freedom from enslavement. Why, the liberals wondered, did the majority create “a special rule” for the insurrection clause alone? They added that the clause does mention congressional action, but only to say that Congress may lift a disqualification by two-thirds vote: “It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation.”

These disagreements matter a great deal. As the liberals point out, the majority’s sweeping Congress-only approach “forecloses judicial enforcement” of the insurrection clause—in, for instance, the context of a criminal trial involving an insurrectionist. It also bars future enforcement on the basis of “general federal statutes” that compel “the government to comply with the law,” since the majority says any congressional enforcement must be “tailored” to the insurrection clause. And it even empowers the Supreme Court to prevent Congress from disqualifying an insurrectionist in the future, because the court can claim that any enabling legislation did not adhere to the made-up rules in Monday’s opinion. By blocking off these pathways, the liberals wrote, the majority “foreclose future efforts to disqualify a presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course.” They continued:

Section 3 serves an important, though rarely needed, role in our democracy. The American people have the power to vote for and elect candidates for national office, and that is a great and glorious thing. The men who drafted and ratified the Fourteenth Amendment, however, had witnessed an “insurrection [and] rebellion” to defend slavery. They wanted to ensure that those who had participated in that insurrection, and in possible future insurrections, could not return to prominent roles. Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.

Notably, the liberals actually had Justice Amy Coney Barrett on their side too. She authored a separate opinion expressing her disapproval of the majority’s overreach but declining to say more because “the court should turn the national temperature down, not up.” So, in effect, Anderson is a 5–4 decision, with a bare majority effectively repealing the insurrection clause for federal officeholders. The liberals’ disapproving citations to Bush v. Gore and Dobbs give a sense of how disastrously they believe the majority went astray.

In related news, Allen H. Weisselberg is expected to plead guilty to felony perjury today.

Recommended read by Will Bunch at the Philadelphia Inquirer: Mitch McConnell is the arsonist who set America on fire and ran away.

At Rolling Stone, Trump’s White House Was ‘Awash in Speed’ — and Xanax.

In January, the Defense Department’s inspector general released a report detailing how the White House Medical Unit during the Trump administration distributed controlled substances with scant oversight and even sloppier record keeping. Investigators repeatedly noted that the unit had ordered thousands and thousands of doses of the stimulant modafinil, which has been used by military pilots for decades to stay alert during long missions. 

The report didn’t say why so many of those pills had been given out. But for many who served in the Trump White House, the investigation highlighted an open secret. According to interviews with four former senior administration officials and others with knowledge of the matter, the stimulant was routinely given to staffers who needed an energy boost after a late night, or just a pick-me-up to handle another day at a uniquely stressful job. As one of the former officials tells Rolling Stone, the White House at that time was “awash in speed.”

Here’s what the Mayo Clinic says about modafinil. I’ve long suspected Trump was taking some kind of stimulant, and this could be it. It can cause mental confusion.

11 thoughts on “SCOTUS Puts Trump Back on Ballots

  1. I’m sure there will be all kinds of learned legal analyses of this decision as the day goes on. I’ll keep an eye out for anything interesting.

    I imagine there will be a lot of talk, but here's my understanding of the court dynamic:

    1) a "unanimous" decision often means there was an 8-1 through 5-4 that was less desirable to the holdouts
    2) 6 judges will hand a win to a Republican if personal vanity is served; 5 will simply hand  a win to a Republican.
    3) Even if a lot of Congress wasn't involved in the insurrection, the judges are aware that Congress can't pass legislation (due to the filibuster), so, this is a pure win for Republicans.

    There's your legal analysis.

  2. "In an unsigned opinion, a majority of the justices held that only Congress – and not the states – can enforce Section 3 of the 14th Amendment, which was enacted in the wake of the Civil War to disqualify individuals from holding office who had previously served in the federal or state government before the war but then"

    States Rights, didn't that used to be a thing?

  3. No surprises in the decision on CO. It's especially gutless that in the decision the Supremes decided out of thin air that it's up to Congress. Not the USSC. How much of the consideration was devoted to ensuring that no case questioning Trump's eligibility under the 14th would hit their docket? 

    More and more the weight of defeating MAGA/Trumpism is shifting to the election. It won't happen through 14th Amendment disqualification. It remains to be seen if we'll have any of the "big three" trials in court before November. This is a huge affront to justice that with three major criminal accusations against a presidential candidate, the system is working with Trump to delay a verdict to which the voters are entitled.

    The news this week will be the deadline for Trump to put up almost 100 million to put E. Jean Carroll in the appeals court. If Trump fails, Carroll is clear to begin encumbering properties in NY. Once Trump misses the deadline, there's no second chance to reopen the appeal. What happens on the 9th will give a clue what to expect in three weeks when almost a half-billion is due. 

    Maha brings up a point about a possible chemical cause for Trump's cognitive decline. He was back at it again this weekend, confusing Biden with Obama. I've wondered for a long time about Trump's midnight tweeting habits. He seems to get by on very little sleep and not just occasionally. If Trump has been enhancing "performance" with uppers, that always has a price. Trump has been calling the shots (badly) on multiple legal cases with disastrous results. Trump's "success" has only been in getting things delayed but he's bleeding cash. 

    Suppose there is a chemical dependency and Trump is relying on ?? to try to keep pace with multiple threats and a campaign that Trump has to win to stay out of prison. Trump will not delegate any of this so he'll lean more and more on whatever is giving him a 20-hour work day. If it's turning his brain to mush, he can't and won't see that he has to lay off. Digby observed that Trump has not made a "pivot" to the center now that he has a virtual lock on the GOP nomination. IMO, Trump is so driven by paranoia (I think) that he can't moderate content at all. (The one exception has been flirtation with the idea of a federal ban on abortion with exceptions.) If Trump's drive for vengeance is chemically fueled, there won't be anything that looks like a pivot when low-info voters tune in this summer. Trump may be completely incoherent by then because the only people Trump is playing to want to elect Vlad the Impaler. 

  4. The Senate failed to do its job and convict Trump of trying to overturn a legitimate election.  They lamed it out not by saying the evidence lacked coming to that conclusion but that it was the court's job to enforce this as a criminal matter.  Now the SCOTUS has passed this case back to congress and changed the Constitution in the process.  The Constitution clearly states that the disqualification was self-executing.  So much for textualism and originalism.  These legal principles obviously only apply when they give you the outcome you have pre-decided.  

    For sure this was way too much State's rights for any state to have.  They need to limit themselves to metaphysical matters, like how many cells does it take to make an embryo a person.  We know that the great guru of American metaphysics sees even numbers as superior to odd ones, so we eliminated half of the possible numbers already.  I am going for the same number of cells that are equal to the number of angels which would fit on the head of a pin.   That's a number that theologians are well trained to deal with.  

    Since the Vatican of the Evangelicals is in Tusa, does the Oklahoma supreme court supersede all other supreme courts in this matter? 

    Modafinil is a new one for me, but from the Mayo description resembles others which should require close and active monitoring for interaction effects, addiction, side effects, and other potential bad outcomes.  It appears this never happened.  What? An ethical problem in the Trump White House?  Is this a surprise to anyone?  

    Speed kills they say, but they don't say how quickly or what organs it takes out first.  Many suspect the brain is at great risk.  You might start thinking that people are talking in languages only used in outer space.  That might be a clue.  You might think Clorox injections may cure the Covid.  That might be another clue.  So many clues and no judges who want to pay attention.  


  5. Modafinal is a controlled substance required to be precribed and delivered by a medical professional. I can't imagine the trumpette white house staff going through legal procedures to obtain the product. 

    Since the official vegetable of Florida is the methamphetimine I tend to suspect the staff and the candidate went to the motherlode of the speed scale.

    Psychotic megalomania for breakfast, lunch and dinner. 


  6. As one of the former officials tells Rolling Stone, the White House at that time was “awash in speed.”

    Remember when they made a big deal about a "white powder" being found at the White House, and it "must" have been Hunter Biden's?  And remember when they had that picture of sawdust and said it "must" be lines of cocaine, also belonging to Hunter Biden?

    Every accusation is a confession.  

  7. O.T. Just saw a "poll" on msnbc showing Steve Garvey (GQP) with 27% of the vote in in the calif. senate race, leading three democrats with the rest. Bobble-head read: “alarm bells for democrats with republican Steve Garvey leading in the race for California senate seat”? It took a couple of pundits opining before one of them pointed out that if Garvey only gets 27% in the general he will lose. How the fuck can a major "news network" try to sell such a garbage story, sometimes they really are as bad as FAUX!

    Also, Stump's new campaign tactic, give up on herd immunity and go for "herd stupidity".

    Stump says at a rally in Virginia last week that he's going to pull federal funds from any public school what has vaccine mandates. Make Polio Great Again, that should get him some votes!

  8. A couple of thoughts on the USSC ruling on 14th Amendment disqualification. (Disclaimer: I haven't read the ruling, and I don't know if I'll get to or through all of it.  So I'm going on bits that I've heard reported.)  

    Some other context: After the USSC oral arguments, I talked for a while with a friend who has argued cases in both State and Federal appellate courts. He educated me on some of the complexities when cases are not confined to one or the other. 

    Bottom line, I think they booted it. For the 9-0 part their ruling was understandable: individual States do not have the power to adjudicate (my word instead of their word "enforce") the applicability of 14th Amd Sec 3 to a particular case if it involves candidates for federal office.  I don't like it but I'm okay with it; however I don't think it makes sense to apply it to candidates for US Senate or House of Representatives, because the US Constitution is clear on the qualifications for those offices in Article I, and any disqualification made by a state court would have zero negative impact on any other state. There are more subtleties I could quibble about but I won't bother here. But the 9-0 part simply means that no state may decide to disqualify TFG from primary elections or the national election. 

    For the rest of it (the 5-4 split), I think it's terrible. I think the USSC was afraid to make a rational jurisprudential statement on the remedy, for fear of ticking off the R base. Well they were going to tick off half the country, so why choose to please the guy who has led an antigovernment, anti-Constitutional, anti-American movement which wants him to be president? That part ticks me off. 

    What the 9-0 part left open was the question: Well, then who gets to decide applicability of sec 3 of Amd 14? And how are they to go about it, so that their decisions don't get appealed and later the USSC finds their action unconstitutional?

    Their answer is absurd and an abomination: Congress. The best case is that they're asking that Congress must pass a law that clarifies in more specific terms the requirements for disqualification, so that future Federal Courts will have some "law" to go on. Courts are supposed to decide on the facts and the law, not make the law. (Worst case would be that congress decided each case in the same way they di impeachments.) SCOTUS does not want to have to adjudicate every case where someone files a suit on disqualification. They didn't have the courage to do a textual analysis and present all the details about conditions for disqualification. They booted it to the Congress, which is tantamount to repealing section 3 for those seeking federal offices, without going through the constitutional process for amending or repealing articles… because they have established that NOBODY can be disqualified no matter what they have done unless Congress decides to make section 3 enforceable. 5 justices are okay with that. That's an abomination. 

    Here's what they should have done: (I don't know if this is even legally possible). Remand it back to the Colorado SC ordering them to reverse the disqualification decision based on lack of authority, but leave an opening for the plaintiffs in the original case to appeal to a Federal Court to review the two Colorado proceedings and asking that Federal Court to make a decision binding to all 50 states per the USSC ruling. Or so that the plaintiffs could file for relief in federal court. In short, they stated that the question was not a matter for state level courts, but they didn't need to declare it was not a matter for federal courts. 
    A simple majority in the House or 41 Senators can prevent any legislation that would make section 3 of the 14th enforceable.  So our nation, our constitutional government is not protected from coups from within for the foreseeable future. 

    So, the USSC has showed its hand (once again). The disturbing view is: Have the puppeteers decided it's now or never to go for permanent one party rule? And who's pulling the strings? Heritage Foundation (Theocracy), Federalist Society (Plutocracy), or foreign adversaries (Global Autocratic Movement). For the life of me, I can't figure out why the justices would want to be in a position of taking orders from Crazy King George reincarnated.       

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