So, how do you think the Court will justify keeping Trump on the ballot?
- What Trump did doesn’t qualify as insurrection.
- Trump hasn’t been convicted of insurrection.
- The insurrectionist ban is only for people who participated in the civil war
- The ban doesn’t apply because presidents aren’t officers
- The ban doesn’t apply because presidents swear to protect the constitution, not to support it
- Section 3 can’t be enforced without congress passing legislation to enforce it.
- It’s a political question so courts can’t touch it.
- Trump being impeached but acquitted after the insurrection means he can’t be punished for it due to double jeopardy (I hate that this is an actual argument being made… and that it’s not even close to the stupidest one to come from team Trump)
Trump hasn’t been convicted of insurrection.
I keep seeing this one… Am I missing something, or didn’t Colorado convict him of insurrection as part of their case? I thought that was the whole point.
But maybe I’m just trying to rationalize a group of people not acting rationally.
to me this is where it gets interesting. that the constitution left it to the states to ‘remove the burden’ of being labeled an insurrectionist to congress implies maybe they also decide who is an insurrectionist … ie, maybe it only takes one state court to declare it, but congress to remove it?
in other words, the SC could say, ‘colorados ruling stands becasue they have that right, if you dont like it speak to the congress who can remove the burden’
No, Colorado’s ruling applies solely to Colorado. They didn’t convict him personally of anything, they just said his actions allow them to keep him off the ballot under the 14th Amendment. If the Supreme Court decides that Colorado misinterpreted the 14th, they could overturn their decision, but the CO decision doesn’t inherently classify Trump as an insurrectionist in other states.
It’s a matter of legal jargon. When people say “convicted” they mean has there been a criminal trial in which trump was found guilty of insurrection.
This hasn’t happened. But the Colorado supreme court, a court that routinely makes decisions about criminal cases, has decided he committed insurrection.
The convicted thing is just an excuse to let him off.
The insurrectionist ban is only for people who participated in the civil war
My guess is this one or close to it. It’s going to be an originalist interpretation of something like the definition of “insurrectionist” or “armed” and include a phrase like “the founding fathers didn’t envision…”. The reasoning might be some bad esoteric case law from the 1800’s that defines insurrectionists as carrying literal muskets and pitchforks therefore Trump is not one.
That and they may just stall for time until after the election and claim they couldn’t interrupt the democratic process term limits. Either way, Trump’s chosen judges are about to have their decisive moment.
My hope is that they just ban him because he no longer has leverage after appointing them, but I am not sure if that would be an even worse indictment of their suitability as Supreme Court judges…
It would be possibly the most egregious thing SCOTUS has done (and they’ve done some shit) if they use this argument. We have the records of the adoption of the 14th, its original wording specified only members of the Confederacy were barred, but they explicitly changed it to cover any act of insurrection. We also know that they considered the language of “any officer” to cover the presidency because someone asked that question, and it’s in the minutes.
Egregious has been escalating at the Supreme Court, in my opinion they’ve been testing the waters to see what the American public will tolerate.
- Roe v Wade overturn showed that Americans will tolerate the removal of rights for half the population
- the fake web designer who pretended to refuse service to LGBT+ decision showed they are willing to engage with dishonest hypothetical situations and the people will tolerate it
- the affirmative action decision showed that when marginalised communities are further institutionally marginalised, there will be little backlash
They’ve been steadily entrenching conservative power. Sotomayor has been warning everyone for years, but when one of the sitting judges publicly says that a decision is “unjustified exercise of power,” and the President says the court isn’t making good decisions, shit is not going well and it doesn’t give me much hope.
I do think that banning him is the correct legal outcome.
However, while I think banning him is better for the country than any scenario in which he wins the election (or tries to dispute/steal it again), I think the best possible scenario in the long term would be for Trump to stay in the race, only to lose in a landslide and drag the entire Republican party down with him. The more the donors and power brokers see MAGA losing, the more they will want to shift the party away from the lunatic fringe and back to more mainstream, traditional candidates.
And as a bonus, if the Court doesn’t neuter section 3, I’m sure we’ll see some bullshit challenges filed against Democrats, and at least in a few jurisdictions I’m sure they may even be able to score a token victory.
I think the most sound legal reasoning would be to say he hasn’t actually been convicted of any charge that constitutes “insurrection”. Conviction is how the government asserts and proves that something happened, and to skip this step opens our legal system for a whole lot of abuse. They’re going to say that, if and when he is convicted, then he can be barred, but not before.
The people the this amendment was specifically targeting weren’t convicted of anything.
I don’t think they can argue #1, because a lower court found that he had done insurrection, and my understanding is that they cannot overrule that finding. #2 won’t stand because it never required conviction historically.
I really don’t know how they’re going to justify it, but I’m sure they’ll find a way. Maybe it’s on your list.
Edit: I have consulted a legal expert, and they said that the supreme Court can overrule “facts” determined in other courts, but it is generally only for egregious things and is generally frowned upon.
Why could they not overrule that finding? That’s literally what appeals to higher courts are for.
Trump being impeached but acquitted after the insurrection means he can’t be punished for it due to double jeopardy
So are they suggesting that to also get him out of Jack Smith’s Jan 6 case?
No, they’re just suggesting it so that if (when) a justice sides with him, they can say that’s why. Nobody, not even the lawyers making the argument, believe that being acquitted during impeachment proceedings magically erases criminal liability.
That’s such a ridiculous argument anyway since they’re so quick to point out that impeachment is a political process and not a “legal” or judicial one.
Oh I know it’s absolutely ridiculous, but that doesn’t mean they wouldn’t try to use it like that anyway, unsuccessfully.
- Every individual state has the right to determine who can run for president in their state (this would be a complete clusterfuck but very funny to watch if you’re not American).
- Separation of powers. This is an ambitious growth in the courts powers in determining who can be in the executive branch. They need a motion from the legislature to confirm that they have this ability.
I honestly believe that conservatives on the supreme court are going to look for a way not to rule on it. The legal case for insurrection is straightforward, and they’re going to want to just make it someone else’s problem.
