Disqualified!

 

Little Sister Resister made a meme!

We have a disqualification!

I've written a lot about Section Three of the Fourteenth Amendment. You can find my initial summary here, which distills the brilliant legal analysis of a small bit of the United States Constitution. 

You'll remember that two conservative (members of the Federalist Society no less!) Constitutional scholars, William Baude and Michael Stokes Paulsen, wrote about the Section and outlined very clearly why the clause disqualifies the Apricot Pol Pot from taking office again. 

Section Three of the Fourteenth Amendment reads:

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 Congress may by a vote of two-thirds of each House, remove such disability.

The upshot of Baude's and Pauslen's analysis is that the Section is valid and not expired; that it is self executing, meaning Congress does not need to pass any other law to enforce it; that it supersedes any previous provisions in the Constitution that disagree with it; and that the disqualifications are sweeping, and indeed include the office of president.

After a few other states declined to pursue the matter, the Colorado Supreme Court agreed to hear the case and found that indeed 45 is not eligible to become 47, based on Section Three of the Fourteen Amendment, and therefore ruled to disqualify him from the Colorado primary ballot.

What what?!

The nation is all in a kerfuffle. 

What are the talking heads saying?

Those on the right of course are saying that the decision was wrong. All the remaining presidential candidates have all said that T**** should not be beaten by a court but by the voters. 

Other skeptics agree. Some say it was a "political gift" to T****. Karl Rove, political advisor and deputy chief of staff for Dubya, wrote an editorial in the Wall Street Journal calling it "fundamentally undemocratic." You can see him on Faux News discussing his views. Interesting that he said Section Three has only been used twice (which is untrue, but that is for another day). He dismissively described one back in 1919, but he conspicuously neglects to mention that another decision was in 2022, which disqualified New Mexico's Couy Griffen from office, based on his participation in an insurrection against the United States on January 6, 2021. 

Other voices are saying it's the correct decision, including conservative voices.

George Conway, famous for being a vocal conservative voice against Donald T****, wrote a compelling piece in The Atlantic. Conway had been of the mind that the assertion that Section Three would disqualify candidate T**** was wrong, until interestingly, the dissenting opinions on the Colorado decision convinced him otherwise. 

Another conservative voice agrees with the decision, that of former judge Michael Luttig. Luttig was an assistant attorney general under Bush I, and Bush II appointed him to the United States Court of Appeals for the Fourth Circuit. More recently, Luttig was adviser to Vice President Mike Pence. Luttig agrees with Colorado's decision and had been thinking about Section Three years before the issue came to the forefront. Luttig calls the Colorado decision "masterful" and "unassailable."

Read his interview with Politico. It's a worthwhile read. 

or watch him on MSNBC:

What are The People saying?

54% of American voters approve of the decision, according to a YouGov poll. This includes 84% of Democrats, 48% of independent voters, and to my eye, a whopping 24% of Republicans. 

What is LSR saying?

Can you guess what her responses are to these cries of "not fair!"?

"He should be eliminated by the voters, not by a court!"

Well, first off, he was repudiated by voters – twice. And yes, it would be great if he were again. But then he participated in an insurrection and aided and abetted thousands of others who also participated. Secondly, he is not being disqualified by a court, he is being disqualified by the United States Constitution. If the Constitution says he's a no-go, then he's a no-go. The court doesn't disqualify him, the Constitution does. The court is there to confirm and enforce what is written.

"It's just political. A bunch of leftists are trying to change the election! It's not fair!"

Like Michael Luttig said, it's the opposite of politics. It's not a trick or a loophole or a technicality. It is our Constitution. It is the law of the land. 

"It's a gift to T****. Neener-neener-neener."

Well, which is it? Not fair to him or a gift to him? It's only a gift because he makes it a gift. And he better milk it quick. The gift lasts only while it is being litigated. And of course, a big-fat ribboned gift if SCOTUS rules the other way. And then, let him have the gift. It's true; he will eat it up and play the victim and grift his minions out of more money. Let him. It is his MO, and we expect no different. He will whine and cry witch hunt and say everyone is out to get him. He's not wrong. Voters don't want him. And we won't have him, regardless. 

"He hasn't been convicted of engaging in an insurrection!"

The Section doesn't say he has to be convicted. And it doesn't even say he has to engage in an insurrection directly. Even if he simply gave "aid and comfort" to others that did, he is disqualified. How 'bout this for aid and comfort? 

"But wait! If T**** is out, Nikki Haley will take the nomination, and she beats Biden!"

Well, that's a leap. But even if true, we have to ignore the possible consequences. Sure, it'll be a different fight if another candidate rises. But the issue is the issue. Whatever happens after, we will deal with as voters and as a nation. To think any other way, or to bend the issue to what is good for your party, is to make it political. And it is not political. It is an American legal issue. Period. 

Jack Ohman

What is next?

The order to remove him from Colorado's primary ballot was stayed by the court immediately. The decision was stayed in case the Supreme Court wants to take up the issue before ballots are printed. The stay is until January 4, 2024, the day before ballots are to be finalized. It's just a couple weeks away!

Which brings us to... The sticky wicket. The Supreme Court of the United States. I don't know about you, but I've lost some trust in SCOTUS. It's been sullied. Some justices were placed there under scurrilous circumstances, and at least one justice is on the take. Let's face it, this is not your father's SCOTUS.

If they take it up in time, the originalists will have to put up or shut up. This matter is classic originalist fodder. A majority of the court are originalists. Will they put their money where there mouth is? 

My prediction, and I hope I'm wrong: the Supreme Court will delay hearing the case until it is too late. They will call it moot and move on. They have already said they will not fast-track the immunity question. There is no reason for them to want to get their hands in this mess.

For more speculation about what SCOTUS may do, read the smart Aaron Blake's analysis in The Washington Post.

AND! There are other states with the issue before their courts. It may very well come around again, with the Colorado decision as a bolster and a roadmap.

Whatever happens, dear resisters, do not fret. We will keep up the resistance. And we will prevail!