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Trump on Trial - Episode 6 |OT| The One with the One Weird Trick (UP: only Congress can enforce 14th amendment v federal officers)

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No Depth

No Depth

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Oct 27, 2017
19,299
CrunchyFrog said:
TBF, I think what he's (somewhat rightly) pointing out is that "insurrection" is not a well-defined term legally (or at least in the context of the Constitution itself), and there's a danger of someone saying the effect of "Joe Biden didn't send enough troops to the border, he's letting in illegals and terrorists that are harming the US, therefore Biden is giving aid and comfort to an enemy that qualifies him as an insurrectionist and he can't be on the ballot." It's bullshit, but if there's no good legal basis for calling it bullshit, it could still fly. I honestly think the arguments about the text of Section 3 being just poorly/inadequately worded are right, but I also know that SCOTUS has and absolutely can make inferences or clarifying tests for such wording as the need arises (though by yesterday's arguments it sounds like nobody, liberal or conservative, wants to take responsibility for that).
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Pretty much my read. I can't recall which Justice stated it, but they literally painted the hypothetical where you have states dictating who is allowed on the ballot by whatever excuse, leaving an election that is decided in a very un-democratic way. (Rich given their stance on gerrymandered maps or Roe)

Effectively most of the arguments seemed to fall towards a recognition that the country/states are filled with horrible bad actors and the question is not about doing what is "right", but rather doing what is needed to best avoid the worst members in power from having some permission excuse to enact on removing the opposition on the flimsiest of technicalities. (Like Gerrymandering!)

So Trump gets a win here in order to stave off state legislators from passing laws to ban Dems and vice/versa(but Dems woulld be rational about it). This country failed hard to not wipe Trump out on Jan 7 and stick him in a hole. Stamp down hard on MAGA and the rot, but now it festers and spreads still.
 
Hollywood Duo

Hollywood Duo

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Oct 25, 2017
48,228
julian said:
Still listening but I heard:



And had to go to the transcript to make sure I heard this. I listened twice. I honestly can't tell if he's giving a hypothetical or calling January 6th a "not a big insurrection". The "down the street" part makes me lean not hypothetical.
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I think he rightfully knows if they block Trump Texas and other blood red states are going to remove Biden on faked charges and then they'll be back at the Supreme Court to clean up the mess. So basically he is a coward.
 
NearingZero

NearingZero

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Jul 1, 2020
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No Depth said:
Pretty much my read. I can't recall which Justice stated it, but they literally painted the hypothetical where you have states dictating who is allowed on the ballot by whatever excuse, leaving an election that is decided in a very un-democratic way. (Rich given their stance on gerrymandered maps or Roe)

Effectively most of the arguments seemed to fall towards a recognition that the country/states are filled with horrible bad actors and the question is not about doing what is "right", but rather doing what is needed to best avoid the worst members in power from having some permission excuse to enact on removing the opposition on the flimsiest of technicalities. (Like Gerrymandering!)

So Trump gets a win here in order to stave off state legislators from passing laws to ban Dems and vice/versa(but Dems woulld be rational about it). This country failed hard to not wipe Trump out on Jan 7 and stick him in a hole. Stamp down hard on MAGA and the rot, but now it festers and spreads still.
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This is probably true, but there seems to me to be an obvious solution. The supreme court lays out clear standards for what the 14th applies to and how to factually determine if that standard has been met. And then they smack down any states that don't follow what they've laid out.

But yeah, maybe the country is so fundamentally broken that they would get overwhelmed with appeals from red states pulling bullshit. Or worse, they pull bullshit in a way/time that remedy is impossible.
 
Foltzie

Foltzie

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Oct 26, 2017
6,989
zissou.ftw said:
This is probably true, but there seems to me to be an obvious solution. The supreme court lays out clear standards for what the 14th applies to and how to factually determine if that standard has been met. And then they smack down any states that don't follow what they've laid out.

But yeah, maybe the country is so fundamentally broken that they would get overwhelmed with appeals from red states pulling bullshit. Or worse, they pull bullshit in a way/time that remedy is impossible.
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This court seems more likely to point out a lack of a conviction under Rebellion or Insurrection (18 U.S. Code § 2383) or Seditious Conspiracy (18 U.S. Code § 2384) rather than to create standards.

Now you may argue this court would possibly kick out a conviction under 18 U.S. Code § 2383 (there is a reason none of the Jan 6 folks are charged under that code) for being too vague and I would agree, but that would sufficiently kick the can.
 
NearingZero

NearingZero

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Jul 1, 2020
1,475
Foltzie said:
This court seems more likely to point out a lack of a conviction under Rebellion or Insurrection (18 U.S. Code § 2383) or Seditious Conspiracy (18 U.S. Code § 2384) rather than to create standards.

Now you may argue this court would possibly kick out a conviction under 18 U.S. Code § 2383 (there is a reason none of the Jan 6 folks are charged under that code) for being too vague and I would agree, but that would sufficiently kick the can.
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Agreed. I was talking about should, not would.
 
julian

julian

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Oct 27, 2017
17,902
CrunchyFrog said:
TBF, I think what he's (somewhat rightly) pointing out is that "insurrection" is not a well-defined term legally (or at least in the context of the Constitution itself), and there's a danger of someone saying the effect of "Joe Biden didn't send enough troops to the border, he's letting in illegals and terrorists that are harming the US, therefore Biden is giving aid and comfort to an enemy that qualifies him as an insurrectionist and he can't be on the ballot." It's bullshit, but if there's no good legal basis for calling it bullshit, it could still fly. I honestly think the arguments about the text of Section 3 being just poorly/inadequately worded are right, but I also know that SCOTUS has and absolutely can make inferences or clarifying tests for such wording as the need arises (though by yesterday's arguments it sounds like nobody, liberal or conservative, wants to take responsibility for that).
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Again, I would've assumed that if not for the "down the street" part. Why say that? Why suggest a hypothetical "insurrection" happened "down the street" when a real one happened there? I understand the main point about vagueness, and agree.

I did find the whole "officer" debate interesting because Trump's lawyer basically acknowledged it was an incredibly weak argument he didn't want to bother arguing. But several of the Justices egged it on on both sides. Barrett's was funny cause she asked the Colorado lawyer to explain why if President is supposedly so important it wasn't listed out specifically, like several other positions are. His answer was excellent and finally gave a good explanation - because all the listed jobs aren't necessarily considered "officers" so they likely wanted to avoid ambiguity, whereas the President is unambiguously an officer. You could hear Barrett laughing a bit during the answer cause it sounded like she was trying to get that out of him and when he started she was all "alright, alright you got it".

I've gone back and forth on my feelings about this case. The court is right that the amendment is too vague. It's unclear what constitutes insurrection, who decides it, how it executes, or when the disability takes effect, but ultimately the amendment exists. The Supreme Court should not have the ability to completely ignore an amendment just because they think it's too vague. The intent of its creation was clear - to bar dangerous people whose goal is to undermine our democracy from taking government positions. There were a few good responses to the ballot question, such as pointing out that each state has its own criteria for setting eligibility and that has not been up for debate. That already some states let people on the ballot other states do not including some people ineligible for other reasons. That being part of a major party gives no extra rights or obligations to appear on the ballot. I won't be shocked whichever way the court falls on this and I have a feeling if it's not 9-0 it might not even be a party line split, but personally I think Colorado is within its rights.
 
Sheepinator

Sheepinator

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Jul 25, 2018
28,889
Seth Meyers covered this last night in an informative (probably not for most here) and also funny way. Part of the segment included showing how tainted the court is, with Thomas not recusing despite his wife's direct involvement in the insurrection, and Trump's lawyer going on TV to talk about how they expect Trump's appointee Kav to "step up", obviously implied that Kav owes Trump.

One interesting part was Trump's lawyer admitted that J6 was violent and criminal. I think Trump (and his defenders) has always claimed otherwise.

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turtle553

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Oct 25, 2017
2,787
Foltzie said:
This court seems more likely to point out a lack of a conviction under Rebellion or Insurrection (18 U.S. Code § 2383) or Seditious Conspiracy (18 U.S. Code § 2384) rather than to create standards.

Now you may argue this court would possibly kick out a conviction under 18 U.S. Code § 2383 (there is a reason none of the Jan 6 folks are charged under that code) for being too vague and I would agree, but that would sufficiently kick the can.
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The 14th calls out oath takers who engaged in insurrection while the criminal stature doesn't require that for disqualification.
 
PhaZe 5

PhaZe 5

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Oct 27, 2017
4,778
So if there were another civil war, every participant would have to be expressly convicted individually, rather than a blanket "decree" of the obvious, as was done in the Civil War.

Which seems like a problematic standard to set. But a lesser evil compared to the potential abuse of the 14th as currently written I suppose.
 
Metroidvania

Metroidvania

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Oct 25, 2017
7,455
phisheep said:
Trump removed from the ballot in Illinois, at least for now. Report here.
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I haven't heard of anything, but as the ballot in Colorado Primary opens next Tuesday (March 5th), do we have any idea of whether or not we'll get a ruling before then?

Or....what happens, if he's 'retroactively'/post-primary-date ruled to not be eligible, unlikely though it is?
 
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phisheep

phisheep

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Oct 26, 2017
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Metroidvania said:
I haven't heard of anything, but as the ballot in Colorado Primary opens next Tuesday (March 5th), do we have any idea of whether or not we'll get a ruling before then?

Or....what happens, if he's 'retroactively'/post-primary-date ruled to not be eligible, unlikely though it is?
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I very much doubt it. He's on the primary ballot in Colorado anyway - ballots were posted out 12 Feb.
 
yogurt

yogurt

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Oct 25, 2017
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9-0 to keep him on the ballot, though Sotomayor, Jackson, and Kagan don't agree with the reasoning of the majority.
 
ArrogantBastard

ArrogantBastard

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Oct 25, 2017
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Kuga said:
9-0. Not a big surprise there.
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Yep, it was clear from the arguments that this was going to be the ruling. They will say he doesn't have immunity but there won't be enough time to bring the charges before election day.

Expecting the judicial branch to save us from Trump was always a false hope, Americans will either vote to allow the complete descent to fascism or we won't.
 
Casa

Casa

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Oct 25, 2017
10,567
Most here expected this literally moments after Colorado did this. So not surprised or even bothered at all. It was never going to hold up.
 
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phisheep

phisheep

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Oct 26, 2017
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The really bad bit of this ruling is that federal officers can be removed/disqualified only through legislation enacted by Congress.

As the 3-justice concurrence points out, this was not necessary to reach the decision, and makes a nonsense of the 14th amendment's provision that a disqualification can only be removed by a 2/3 majority of Congress. There's no need for that when they could by a bare majority repeal any enabling legislation.

This leaves Section 3 toothless when faced by an insurrectionist who also holds a Congressional majority.

Damn.

At least it was a good try.
 
Joe

Joe

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Oct 25, 2017
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phisheep said:
The really bad bit of this ruling is that federal officers can be removed/disqualified only through legislation enacted by Congress.

As the 3-justice concurrence points out, this was not necessary to reach the decision, and makes a nonsense of the 14th amendment's provision that a disqualification can only be removed by a 2/3 majority of Congress. There's no need for that when they could by a bare majority repeal any enabling legislation.

This leaves Section 3 toothless when faced by an insurrectionist who also holds a Congressional majority.

Damn.

At least it was a good try.
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Yeah, this was jumping out at me, too. The conservative majority leaped at the opportunity to practically repeal a part of the constitution they don't like, and tucked it into this decision that is otherwise 9-0. I guess I shouldn't be surprised.
 
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phisheep

phisheep

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This ruling also means that a Republican congress could, by a bare legislative majority, disqualify and remove a Democratic President under the 14th amendment, notwithstanding the supermajority requirement for conviction-upon-impeachment in Article II Section 4.

And I wouldn't put it past them to try this either.
 
Hollywood Duo

Hollywood Duo

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Oct 25, 2017
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In the arguments Roberts basically implied no one could be trusted with this power because he knows the shit head republicans would abuse it in a second.
 
plagiarize

plagiarize

Survivin'
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Oct 25, 2017
29,124
Cape Cod, MA
Yeah. It's the correct ruling. I don't trust purple states with republican majorities not to go fucking crazy with sabotaging Democrats running for President. Wrong reasoning with potential issues caused by it down the line, for sure on that 5-4 part.

Not the best.

But it was worth a try.
 
Staal

Staal

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Oct 27, 2017
470
phisheep said:
This ruling also means that a Republican congress could, by a bare legislative majority, disqualify and remove a Democratic President under the 14th amendment, notwithstanding the supermajority requirement for conviction-upon-impeachment in Article II Section 4.

And I wouldn't put it past them to try this either.
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Wait what? How and why?
 
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phisheep

phisheep

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Staal said:
Wait what? How and why?
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Just by passing legislation saying so, according to the court.

Of course, a bare majority wouldn't really be enough, because the President could veto it. In other words, an insurrectionist President could keep himself in office by vetoing the legislation that enforces the 14th amendment.
 
Staal

Staal

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Oct 27, 2017
470
phisheep said:
Just by passing legislation saying so, according to the court.

Of course, a bare majority wouldn't really be enough, because the President could veto it. In other words, an insurrectionist President could keep himself in office by vetoing the legislation that enforces the 14th amendment.
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So this could also be done by a Dem congress? This will be interesting.
 
Dyle

Dyle

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Oct 25, 2017
31,505
The idea that only Congress has authority over federal elections simply doesn't make sense with how federal elections are run. States have always had full control over how elections, for both federal and state positions, are held within their states, from ballot access, voter ID laws, electoral college distribution, etc. If this decision is taken to be valid, then states should not have the ability to alter any of those things without Congressional approval, which I don't think anyone would be willing to accept as a logical way for elections to be run.
 
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