The Colorado Supreme Court’s Tuesday decision to disqualify former President Trump from the state primary ballot has come under fire from Republicans who have claimed it is a political move against…
In encourage you to go read Lawrence Lessig’s analysis of this case. It’s likely the court will find the 14th amendment leaves out the word “president” for a reason.
That makes literally zero sense, because the 14th Amendment bars anyone from holding any civil or military office who engaged in insurrection. And before you go on about “well durrrrr the presidency isn’t an office,” the constitution refers to the presidency as the Office of the President of the United States repeatedly:
Article 1, Section 3:
The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.
Article 1, section 3:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
(This provision is especially important because it means that if the presidency isn’t counted as an office the president is literally immune from impeachment because there’s no provision in the constitution to actually try the president for impeachment.)
Article 2, section 1:
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows…
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected…
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
12th Amendment:
But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. *Superseded by section 3 of the 20th amendment.
22nd Amendment:
No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
I could go on, but I think you get the point. Claiming that the 14th Amendment doesn’t cover the presidency completely ignores the plain text of the entire fucking constitution!
Another fun side effect is that the president not being an office covered under the 14th amendment would also mean they’re exempt from the Emoluments clause, though that one might already be dead…
The Supremely Corrupted of the US will take all of that overwhelmingly evidence into consideration and just say “No, he’s good. If you want to know why, it’s because we said so. If you don’t like the decision, what are you going to do, fire us?”
Yeah, because the presidency was already covered by the phrase “any office, civil or military.” This very concern is brought up during the congressional debates over ratifying the amendment, and is addressed:
But this amendment does not go far enough. I suppose the framers of the amendment thought it was necessary
to provide for such an exigency. I do not see but that any one of these gentlemen may be elected President or Vice
President of the United States, and why did you omit to exclude them? I do not understand them to be excluded
from the privilege of holding the two highest offices in the gift of the nation. No man is to be a Senator or
Representative or an elector for President or Vice President.
Mr. MORRILL. Let me call the Senator’s attention to the words “or hold any office, civil or military, under
the United States.”
Mr. JOHNSON. Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am; but I was misled
by noticing the specific exclusion in the case of Senators and Representatives.
Yeah, literally the only pathway to ruling Trump is not barred is by throwing out the entire finding of fact by the Colorado supreme court that Trump engaged in an insurrection. It’s not impossible since appellate courts do technically have this power, but appellate courts are usually supposed to give extreme deference to lower courts when it comes to their findings of fact–the standard from my brief bit of research is that the lower court’s findings must be “clearly erroneous.”
So given how batshit our current court is I expect at least two surefire no votes from Thomas and Alito. Gorsuch is probably a yes vote given how much of a strict textualist he’s turned out to be, as are the entire liberal bloc. Ironically, Roberts is yet again the most likely swing vote, and I honestly don’t know if he’d sign off on disqualifying him. I could see anything from 7-2 in favor of upholding to 5-4 or 6-3 overturning. Considering their recent signal in the form of denying Smith’s request for expedited review, I’m… honestly not optimistic.
We don’t know, all we know iirc is that at least four justices said “nah bro go through the regular appeals process.” So reading the tea leaves, at least Thomas and Alito, plus any two of Gorsuch, Roberts, ACB, and Kavanaugh said no, at minimum.
It’s hard to say with certainty what this signals about how they’ll rule on the various Trump cases, but at minimum it indicates that they either don’t realize that he’s trying to delay the trials in the hopes he can win the election and have them all dropped, or they don’t care that’s what he’s doing. If they really_don’t_ care, it could be because they approve of his actions–and will likely rule in his favor–or simply because they value strict adherence to the regular process even at the potential risk of allowing an unqualified candidate (in the actual constitutional sense) obtaining office and doing whatever damage he can. None of those reasons bode very well for this particular case, IMO.
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, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
But the President is included in this as a civil office holder, no?
In encourage you to go read Lawrence Lessig’s analysis of this case. It’s likely the court will find the 14th amendment leaves out the word “president” for a reason.
That makes literally zero sense, because the 14th Amendment bars anyone from holding any civil or military office who engaged in insurrection. And before you go on about “well durrrrr the presidency isn’t an office,” the constitution refers to the presidency as the Office of the President of the United States repeatedly:
Article 1, Section 3:
Article 1, section 3:
(This provision is especially important because it means that if the presidency isn’t counted as an office the president is literally immune from impeachment because there’s no provision in the constitution to actually try the president for impeachment.)
Article 2, section 1:
12th Amendment:
22nd Amendment:
I could go on, but I think you get the point. Claiming that the 14th Amendment doesn’t cover the presidency completely ignores the plain text of the entire fucking constitution!
Another fun side effect is that the president not being an office covered under the 14th amendment would also mean they’re exempt from the Emoluments clause, though that one might already be dead…
The Supremely Corrupted of the US will take all of that overwhelmingly evidence into consideration and just say “No, he’s good. If you want to know why, it’s because we said so. If you don’t like the decision, what are you going to do, fire us?”
Go read the opinion. Evidently in drafts of the amendment “president” was included and then later removed.
https://slate.com/news-and-politics/2023/12/supreme-court-trump-ballot-removal-colorado-wrong.html
Yeah, because the presidency was already covered by the phrase “any office, civil or military.” This very concern is brought up during the congressional debates over ratifying the amendment, and is addressed:
Source: https://stafnelaw.com/wp-content/uploads/2017/08/Congressional-Debates-of-the-14th-Amendment.pdf page 60
So the original people drafting the Amendment understood it to cover the presidency.
That’s as clear-cut as it gets right there.
If you know that, then every SCotUS justice knows it.
If SCotUS destroys the 14th Amendment for Trump, they are truly illegitimate.
Yeah, literally the only pathway to ruling Trump is not barred is by throwing out the entire finding of fact by the Colorado supreme court that Trump engaged in an insurrection. It’s not impossible since appellate courts do technically have this power, but appellate courts are usually supposed to give extreme deference to lower courts when it comes to their findings of fact–the standard from my brief bit of research is that the lower court’s findings must be “clearly erroneous.”
So given how batshit our current court is I expect at least two surefire no votes from Thomas and Alito. Gorsuch is probably a yes vote given how much of a strict textualist he’s turned out to be, as are the entire liberal bloc. Ironically, Roberts is yet again the most likely swing vote, and I honestly don’t know if he’d sign off on disqualifying him. I could see anything from 7-2 in favor of upholding to 5-4 or 6-3 overturning. Considering their recent signal in the form of denying Smith’s request for expedited review, I’m… honestly not optimistic.
Wasn’t this 9-0 unanimous?
We don’t know, all we know iirc is that at least four justices said “nah bro go through the regular appeals process.” So reading the tea leaves, at least Thomas and Alito, plus any two of Gorsuch, Roberts, ACB, and Kavanaugh said no, at minimum.
It’s hard to say with certainty what this signals about how they’ll rule on the various Trump cases, but at minimum it indicates that they either don’t realize that he’s trying to delay the trials in the hopes he can win the election and have them all dropped, or they don’t care that’s what he’s doing. If they really_don’t_ care, it could be because they approve of his actions–and will likely rule in his favor–or simply because they value strict adherence to the regular process even at the potential risk of allowing an unqualified candidate (in the actual constitutional sense) obtaining office and doing whatever damage he can. None of those reasons bode very well for this particular case, IMO.
I fail to see how drafts are relevant except to judges who pretend they can know the minds of the authors by reading tea leaves.
14th amendment section 3:
But the President is included in this as a civil office holder, no?
Civil, and military. The President is also the Commander-In-Chief of the Armed Forces, y’know.
Which is the way a lower court had previously ruled, but the case was picked up by the Colorado SC