Source.

I listened to some of the Trump v. Anderson oral arguments (thanks, NPR) and read the rest. My three takeaways:

• The Colorado Supreme Court decision will be overturned (this is widely agreed-upon).
• The Fourteenth Amendment and this insurrection kind of broke federalism.
• The court's opinion beyond the simple yea/nay for Trump remaining on the ballot could be rather impactful.

Petitioner presented an argument that I hadn't read before the SCOTUS hearing - possibly because I was in the lab for a few weeks jamming out a lengthy report. With all the talk of the meaning of 'officer' and retaliatory disqualifications, this argument was refreshingly concise and creative.

To summarize, there aren't a lot of qualifications to be president:

1. Don't run a Super Bowl ad comparing yourself to your uncle, JFK.

Okay, here's the real list:

1. Be age 35 or older.
2. Be a natural born US citizen.
3. Don't be seeking your third presidential term.
4. Don't engage in insurrection having previously taken an oath of office unless Congress grants you an exemption.

One of these is not like the other. That is, once 1-3 have occurred, they cannot unoccur. The congressional reprieve afforded by number 4 means that you could make the following argument:

Jonathan Mitchell

Section 3 still allows the candidate to run for office and even win election to office and then see whether Congress lifts that disability after the election. This happened frequently in the wake of the Fourteenth Amendment where Confederate insurrectionists were elected to Congress, and sometimes they obtained a waiver; sometimes they did not. And each House would determine for itself whether to seat that elected insurrectionist because each House is the sole judge of the qualifications of its members.

I found it surprising that there was early history of congressmen being elected and not seated. Regardless, a pedantic interpretation of Section 3 of the Fourteenth Amendment indicates that the possibility of a congressional re-qualification means that no one can be removed from the ballot based on 14.3. Speaking for the respondents, Jason Murray asserts that you're, essentially, guilty until pardoned:

JUSTICE GORSUCH: All right. But just circle back to where we started, right? This is Section 3. Your authority has to come from there. And it's about holding office and it's a particular kind of disability that can be removed by Congress and it's the only one like that, right? They can't remove age or citizenship. How should that inform our thoughts about a state's efforts to regulate the ballot for a federal office? MR. MURRAY: The colloquy that my friend had with Justice Alito earlier, I think is illustrative here. The fact that Congress has an extraordinary removal power does not negate that the disability exists today and exists indefinitely into the future, much like the fact that Congress -- that the president can pardon somebody for criminal conviction doesn't make that conviction somehow -- somehow contingent.

Both perspectives aren't unreasonable but manifest as very different types of potential disenfranchisement.

Disenfranchisement

Voter disenfranchisement concerns are all over this debate, mostly with regard to removing a candidate from the ballot. The petitioner's view is that Trump should be on the ballot, possibly elected, and simply not inaugurated should Congress not give him a 14.3 exemption. Strictly, their position is that 14.3 is inert without additional legislation and that the president is not covered by Section 3, but failing these they claim that he cannot be excluded from the ballot until inauguration day.

It's one thing to make voters choose their second favorite candidate, it's an entirely different thing to disqualify a candidate after the votes are cast.
Griffin was suggested by some commentators to be a clear indicator that 14.3 is not self-executing.

Jonathan Mitchell

Griffin's Case involved a convicted criminal who was seeking a writ of habeas corpus on the ground that the judge who tried his case was an insurrectionist disqualified under Section 3, and Chief Justice Chase realizes that if he enforces Section 3 in this situation, it would nullify every official act taken not only by this particular judge but by anyone who is an insurrectionist or arguably an insurrectionist under Section 3.

Mitchell said they weren't relying heavily on Griffin which as otherwise been cited as the final word on the matter.

JUSTICE SOTOMAYOR: Griffin was not a precedential Supreme Court decision. MR. MITCHELL: That's correct. JUSTICE SOTOMAYOR: All right. It was a circuit court decision by a justice who, when he becomes a justice, writes in the Davis case, he assumed that Jefferson Davis would be ineligible to hold any office, particularly the presidency, and treated -- and this is his words -- MR. MITCHELL: Mm-hmm. JUSTICE SOTOMAYOR: -- Section 3 as executing itself, needing no legislation on the part of Congress to give it effect. So you're relying on a non-precedential case by a justice who later takes back what he said.

In response to Mitchell's above admission that Chief Justice Chase was backed into a corner, Justice Barrett seemed to ask him to make a different argument that allows 14.3 to remain self-executing:

Justice Barrett

Well, why do you need those consequential concerns, though? I mean, it kind of seems to me that what Justice Kagan is getting at is why don't you have an argument that the Constitution of its own force, that Section 3 of its own force, preempts the state's ability not -- not necessarily, I think, not, to enforce Section 3 against its own officers but against federal officers, like in a Tarble's Case kind of way.

It makes plenty of sense for 14.3 to remain self-executing and have states only be empowered to administer it internally, if not for two problems:

• There needs to be a mechanism for applying it federally.
• As we'll see later, it's not how elections have historically worked.

But we should just take a moment to bask in Justice Barrett's choice of words, "to enforce Section 3 against its own officers but against federal officers". Federal officers. Like the president.

Then there was some discussion of how separate enforcing legislation would square with the amendment:

JUSTICE KAGAN: -- because, if Congress has the ability to lift the vote by a two-thirds majority, then surely it can't be right that one House of Congress can do the exact same thing by a simple majority. MR. MITCHELL: Yeah, there certainly is some tension, Justice Kagan, and some commentators have pointed this out. Professor Baude and Professor Paulson criticized Griffin's Case very sharply.

Essentially, it'd be a little weird for necessary enforcing leglisation to be passed and repealed by simple majority while the 14.3 congressional removal of disability would require 2/3. Alito jumps in to say that the repeal and requalificiation for office aren't the same since they apply at different times and with different levels of granularity.

Most of the justices seemed to settle on, "we don't rely on Griffin but use it to provide insight as to what the writers of 14.3 intended, which is that it was not self-executing." Seems frighteningly like a repeal coming from the judiciary.

Enforcement Act of 1870

Source.

Much of the discussion pointed to the Enforcement Act of 1870 as the other indicator that 14.3 is not self-executing.

Enforcement Act of 1870

Sec. 14. And be it further enacted, That whenever any person shall hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States, it shall be the duty of the district attorney of the United States for the district in which such person shall hold office, as aforesaid, to proceed against such person, by writ of quo warranto, returnable to the circuit or district court of the United States in such district, and to prosecute the same to the removal of such person from office; and any writ of quo warranto so brought, as aforesaid, shall take precedence of all other cases on the docket of the court to which it is made returnable, and shall not be continued unless for cause proved to the satisfaction of the court. Sec. 15. And be it further enacted, That any person who shall hereafter knowingly accept or hold any office under the United States, or any State to which he is ineligible under the third section of the fourteenth article of amendment of the Constitution of the United States, or who shall attempt to hold or exercise the duties of any such office, shall be deemed guilty of a misdemeanor against the United States, and, upon conviction thereof before the circuit or district court of the United States, shall be imprisoned not more than one year, or fined not exceeding one thousand dollars, or both, at the discretion of the court.

I probably need more background on this, but this left me wondering:

• District attorneys are given the duty to bring action against local violators of 14.3. If this was the necessary enforcing legislation, Congress and state legislatures would be free and clear of 14.3? Section 15 casts a much wider net, but simply names the punishment for violating 14.3. That seems orthogonal to the disability imposed by the Fourteenth Amendment.
• The text refers to ineligibility under 14.3 without mentioning conviction, similar to the amendment itself.
• "That whenever any person shall hold office, except as a member of Congress" is kind of interesting juxtaposed with Gorsuch's sneering monologues (not transribed here) about offices and seats.

These sections of the Enforcement Act were repealed in 1948 for whatever reason. Based on oral arguments, it appears the majority vote required to repeal Sections 14 and 15 effectively repealed Section 3 of the Fourteenth Amendment. Funny how that works.

I need to briefly set ellipses to max:

Fourteenth Amendment

No person shall... hold any office... under the United States... having previously taken an oath... as an officer of the United States.

The ellipsed text lists of bunch of positions. These are important, but for the moment let's focus on "office under" and "officer of". Petitioner suggests that the answer to both of the following questions is 'no':

• Is the presidency an office under the United States?
• Did Donald Trump take an oath as an officer of the United States?

Jonathan Mitchell

I think [the "office under" argument is] an even tougher argument for us to make as a policy matter because one would think, of all offices, the presidency would be the one you'd want to keep out the Confederate insurrectionists. That's the commander-in-chief of the Army. So, again, that's why we're leaning more on the "officer of" argument than the "office under."

The discussion had remarkably few references to the intent of the Fourteenth Amendment, but at least Mitchell acknowledged it here. Weirdly, nobody seemed to want to consider whether the writers of the Civil War Amendments would have considered a presidential oath of office to be conceptually equivalent to that of every other position in the USG.

Also mentioned was the funny twist that if the president is not an officer of the United States, every president except George Washington and Donald Trump would still be bound by 14.3 because they had previously held other positions in government. Perhaps the framers of the Fourteenth wanted the protection from insurrectionists to skip anyone who assumed the office of the president with no prior experience governing. Or perhaps they simply didn't consider that the sole non-officer in the executive might have never taken an oath to the United States in another capacity. Or perhaps they meant that the Commander in Chief of the armed forces and holder of the Office of the President was, in fact, and officer of the United States. It's impossible to know!

De-ellipsified

To expand the part of 14.3 about offices that insurrectionists could not hold: "No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State..."

Mitchell was asked (paraphrasing), "Why would the president be excluded from the text of 14.3?"

Jonathan Mitchell

Yeah. I don't think there is a good rationale given that this was compromise legislation. And sometimes this happens with statutory compromises and even constitutional compromises. There's an agreed-upon set of words that can pass both Houses of Congress, but different legislators may have had goals and motivations. They didn't all get their way. In a compromise, everyone goes away miserable. But this was the text that was settled upon. And it does seem odd that President Trump would fall through the cracks in a sense, but if "officer of the United States" means appointed officials, there's just no way he can be covered under Section 3. The Court would have to reject our officer argument to get to that point.

This led to a brief discussion about textualism and originalism:

JUSTICE JACKSON: Is there any evidence to suggest that the presidency was what they were focused on? MR. MITCHELL: There is some evidence of that. There were people saying we don't want Jefferson Davis to be elected president, and there was also -- one of the drafts of Section 3 specifically mentioned the presidency and the vice presidency -- JUSTICE JACKSON: But it wasn't the final -- MR. MITCHELL: -- as an office. JUSTICE JACKSON: -- but it wasn't the final enactment. So where do you -- MR. MITCHELL: It wasn't the final -- it wasn't -- JUSTICE JACKSON: Right.

Justice Jackson goes on to say that using the draft language is probably a bad idea since the final text captured the compromises reached by negotiating parties. Intentionally or unintentionally, this says a lot about the perils of originalism.

A representative of the Colorado secretary of state briefly took part in the proceedings:

Shannon Stevenson

Just this election, there's a candidate who Colorado excluded from the primary ballot, who is on the ballot in other states even though he is not a natural-born citizen. And that's just -- that's a feature of our process. It's not a bug. And then I think, with respect to the decision-making and -- you know, we're here so that this Court can give us nationwide guidance on some of the legal principles that are involved. I think that reduces the potential amount of disparity that would arise between the states. And then with respect to the factual record and how that gets issued and implemented, the states have processes for this. And I think we need to let that play out and accept that there may be some messiness of federalism here because that's what the Electors Clause assumes will happen. And if different states apply their principles of -- of collateral estoppel and come to different results, that's okay. And -- and Congress can act at any time if -- if it thinks that it's truly federalism run amok.

It seems to be uncontested that Article II grants states the power to administer elections.

Jason Murray

MR. MURRAY: Because Article II gives them the power to -- to appoint their own electors as they see fit. But if they're going to use a federal constitutional qualification as a ballot access determinant, then it's creating a federal constitutional question that then this Court decides and other courts, other states -- if this Court affirms the decision below, determining that President Trump is ineligible to be president, other states would still have to determine what effect that would have on their own state's law and state procedure --

And so the justices wrung their hands about states dictating national elections by disqualifying candidates. And they're right, it's a national election, it doesn't make sense to have different rules for the same race. But the text, original intent, histories, and traditions seem to all say that it's a power granted explicitly or implicitly (via the Tenth) to states. The Fourteenth Amendment's introduction of a subjective qualification for president (not being an oathbreaker) seems to have thrown a wrench in the works.


Well, maybe it's not the only subjective qualification. This entire debacle can be traced back to a particular birtherism-related public humiliation at the 2011 White House Correspondents' Dinner. As far as anyone can tell, that night is the reason Trump ran for office, the reason he was fixated on undoing all of his predecessor's accomplishments, and the reason he cancelled the event.

The birther thing did lead to eligibility challenges that didn't seem to go anywhere. Perhaps this isn't so much a problem with the Fourteenth Amendment as it is a problem with the post-truth era.

First mover and collateral estoppel

Vaguely: collateral estoppel, in certain situations, prevents things from being relitigated on a state-by-state basis. In the case of 14.3 disqualifications, there could be a situation where states are be beholden to the judicial decisions of the first court to weigh in.

JUSTICE JACKSON: And there is no federal litigation [for insurrection], you would say? MR. MURRAY: Well, that's correct, because there is no federal procedure for deciding these issues, short of a criminal prosecution.

Referring back to the Enforcement Act of 1870, district attorneys were given the responsibility to bring civil action against local insurrectionist oathbreakers. There was/is apparently no equivalent for federal positions. According to Mr. Mitchell, the candidates were simply not seated after being elected.

So perhaps this means Jack Smith needs to add an insurrection charge to the Jan 6 prosecution. That doesn't seem like the threshold established by the Fourteenth Amendment or contemporaneous legislation, but the justices appear reluctant to allow a district court finding of fact determine a matter of disenfranchisement.

CHIEF JUSTICE ROBERTS: -- I would expect that, you know, a goodly number of states will say, whoever the democratic candidate is, you're off the ballot. And others for the Republican candidate, you're off the ballot. It'll come down to just a handful of states that are going to decide the presidential election. That's a pretty daunting consequence. MR. MURRAY: Well, certainly, Your Honor, the fact that there are potential frivolous applications of a constitutional provision isn't a reason -- CHIEF JUSTICE ROBERTS: Well now, hold on. You might think they're frivolous but the people who are bringing them may not think they're frivolous. Insurrection is a broad, broad term. And if there's some debate about it, I suppose that will go into the decision and then eventually, what, we would be deciding whether it was an insurrection when one president did something as opposed to when somebody else did something else? And what do we do? Do we wait until near the time of counting the ballots and sort of go through which states are valid and which states aren't?

Lol.

Roberts: What if people bring frivolous, partisan actions? You know, "you're off the ballot!"
Murray: I-
Roberts: How dare you! Those frivolous, partisan actions are something people believe in.

And "Do we wait until near the time of counting the ballots and sort of go through which states are valid and which states aren't?" That's what Petitioner is suggesting, bro.

CHIEF JUSTICE ROBERTS: And now you're saying well, it's all right, because somebody, presumably us, are going to decide, well, they said they thought that was an insurrection but they were wrong. And maybe they thought it was right. And we'd have to develop rules for what constitutes an insurrection. MR. MURRAY: Yes, Your Honor, just like this Court interprets other constitutional provisions, this Court can make clear that an insurrection against the Constitution is something extraordinary.

Murray wasn't great in these oral arguments but, hilariously, "yes, we have a system for adjudicating these things, it's called the justice system, perhaps you are aware".

Mutiny

There was another painful Gorsuch exchange in which asked Murray if a subordinate of the president or other officer could go rogue on the grounds that they thought their superior engaged in insurrection. It was meant as an, "Aha! Without codification and conviction, allowing 14.3 to self-execute would mean chaos!"

Murray painfully tried to not answer the question and instead gestured vaguely toward the impeachment process.

Maybe one of the briefs had more on it, but this seems like exactly what we want. Civil servants are certainly able to act freely at any time with the understanding that, say, guessing wrong about whether their superior committed insurrection would be eventually adjudicated. If a Union general decided to switch sides and ordered his soldiers to do the same, I imagine the authors of the Fourteenth Amendment wouldn't tell the subordinates to wait for proper enforcing legislation, trial, and conviction.

Consider if, on Jan 6th, someone had declared "you're no longer the boss due to 14.3 and I'm eager to defend this position in court". How disasterous Perhaps there'd be no missing USSS records from that day. Perhaps Charles Kushner and Roger Stone wouldn't have gotten their pardons. Perhaps hundreds of classified documents wouldn't have been relocated to a beach club. I don't know Neil, maybe that's how it's supposed to work.

Source.

So this one is getting overturned, but the manner in which it is overturned will matter.

• Will Gorsuch get his way and have the majority opinion determine that the president is not an officer of the United States? In what other contexts would this impact executive power?
• Will the court find that 14.3 is not self-executing and was kneecapped by the repeal of two parts of the Enforcement Act? Would a criminal conviction under the federal insurrection statute permit the AG to sue each state to have an insurrectionist taken off the ballot? Or would states have to voluntarily use the conviction to disqualify a candidate?
• If 14.3 is self-executing, can ineligible candidates be put on the ballot on the assumption that they might get a last-minute reprieve from Congress?
• Do states still have the power to run elections for federal offices? If Birthergate 2.0 happens, how does disqualification happen?

Vice News headline: "Trump's Lawyers Are Making the Judge in His New York Fraud Trial Big Mad".

/u/FriarNurgle Was the title written by AI?

/u/dieseldiablo It's Vice Magazine, their way of being edgy.

/u/joeshill Vice Magazine is written by emo goth edgelords?

/u/dieseldiablo On the edge between formal writing and slang? Ooh, how thrilling.

/u/joeshill "Read this or we will cut ourselves!"

And another one from the peanut gallery:

MrFrode

Habba: Your Judgeship at this time we would like to assert the divine right of kings and move for a mistrial. Judge: Sigh, it's your honor and denied. Habba: You leave me no choice sir, Up, Up, Down, Down, Left, Right, Left, Right, B, A.

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