On the eve of the third anniversary of the Insurrection against the United States, the Supreme Court of the United States decided to take up the issue of Colorado's ballot disqualification of T****.
Oral arguments to SCOTUS are scheduled for February 8, less than five weeks from now.
Colorado, as you recall, disqualified him from appearing on the presidential ballot based on Section Three of the Fourteenth Amendment, which 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 Section has been studied by Constitutional scholars at least since January 6, 2021 and it is the consensus of most of them that it is cut and dried. 45 is disqualified from ever holding office again.
The only way out of this is if SCOTUS proclaims that the president is not "an officer of the United States" or that he neither "engage(d) in insurrection or rebellion" nor had given aid or comfort to enemies of the United States.
Officer of the United States
It's cruel irony that of the 46 U.S. presidents, only one had never held a public office before becoming president. If he had held any other office, this part of the disqualification would be moot. As the previous holder of any other office specifically named in Section Three (member of Congress, state legislator, executive or judicial officer of any state), then he would be barred, period. Unfortunately the 14th Amendment did not explicitly name president as one who would be disqualified. Did the framers of the 14th Amendment really mean to exempt the president from this disqualification?!
So, Little Sister Resister asks: is a president an officer of the United States? Well, other than the "Duh, Gilbert" answer, let's look.
Hmmmm. ...What officer is in charge of the military, above the top officers called Admirals, Generals, and Commandants? Commander in Chief of course. That officer is above all the rest of the top officers.
Who was holding office in 2016? President Obama, of course, and how we miss him! Who took office on January 20, 2021? President Biden, and how glad we are of it! Who swore an oath of office that says: "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?" All 46 presidents! Who holds an office? An officer!
T**** himself even called himself "chief law enforcement officer of the United States." Yeah, he was incorrect on that point, still, even he considered himself an officer.
Let's forget LSR's none-the-legal, awkward attempts at proving officership of the president. Let's let some legal minds take up the academic legal research.
James Heilpern from Brigham Young University and Michael Worley wrote a paper entitled, "Evidence that the President is an 'Officer of the United States' for Purposes of Section 3 of the Fourteenth Amendment." (Spoiler alert: he is!) Read their paper here, or the abstract here.
Josh Blackman, a law professor in Texas, and Seth Tillman, a law professor from Ireland (Ireland??) also took up the issue. Writing in NYU's student-edited Journal of Law & Liberty in 2021, they examine the question: "Is the President an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment?" (Spoiler: they think he is not.)
Well, LSR says the president is an officer, and if the Supreme Court says otherwise, they are bonkers.
Insurrection
The trickier question, and the one SCOTUS may land on, is did he engage in insurrection or give aid and comfort to enemies?
The short answer, again is, "duh."
That is, if you have been following along for the past three years, and not of the mind that the murderous mob was on a "tourist" jaunt.
I don't need to rehash the mountains of evidence of insurrection again. Though if you need more evidence of his inaction, as I edited this piece, there was more reported about his inaction on that day. He watched it unfold; he did not care that people's lives were endangered, including his most loyal Vice President; he did nothing to stop it. I hope the lawyers for Colorado make the point that doing nothing in this case is direct evidence of aiding and abetting.
I will say that I think that this will be SCOTUS's out. Though Section Three does not make it necessary that the person be convicted of insurrection, SCOTUS may still use that as their justification. Though the House impeached him on the charge of "inciting an insurrection," he was not convicted by the Senate. If he had, he would be automatically barred from holding office again. Though the Colorado judge who initially ruled that he was still eligible decided that he incited an insurrection, and several other judges have used insurrection language, I am confident that SCOTUS will argue that there is no consensus that he engaged in insurrection and therefore will let the election proceed with him on the ballot.
I hope my prediction, like most of my predictions, is wrong.
The Politics
I've lost faith in the Supreme Court. They are no longer an apolitical body, and they will not act in an apolitical way.
As T**** attorney Alina Habba noted, they owe him.
Habba: I think it should be a slam dunk in the supreme court. I have faith in them. You know, people like Kavanaugh, who the president fought for, who the president went through hell to get into place. He'll step up. pic.twitter.com/gQo1h55t6N
— Acyn (@Acyn) January 5, 2024
Habba was rightly slammed for those remarks.
And yet, these justices pretend to be apolitical. Remember Justice Alito's words in writing the opinion overturning Roe v. Wade?
"We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work. We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision."
Noble words. Will they live up to that notion in this instance? Doubtful.
The 2020 justices also fretted about the political ramifications of their decision in Bush v. Gore, but they went ahead with their decision to stop Florida's recount. They effectively handed the presidency to Bush, promptly beginning the long degradation of our trust in the body.
As Justice Breyer wrote in his 2020 dissent, quoting David Loth in Chief Justice John Marshall and The Growth of the American Republic (1948):
"Above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself. That confidence is a public treasure. It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation. It is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself. We run no risk of returning to the days when a President (responding to this Court's efforts to protect the Cherokee Indians) might have said, ‘John Marshall has made his decision; now let him enforce it!’ But we do risk a self-inflicted wound—a wound that may harm not just the Court, but the Nation."
Yup.
Interestingly, T**** is afraid for the political thoughts of SCOTUS in the opposite way. New York Times reporter and expert on all things T****, Maggie Haberman has said he is afraid that because he stacked the court, they will have a Laurie Partridge moment and will rule against him so as not to appear to favor him.
Sadly, the court has been stacked. If they vote they way I think they will, it will send a bad message for all forever. I have no faith that it will be decided any other way.
In my last post, I quoted former judge Michael Luttig, appointed to positions (including federal judge) by both Bush I and Bush II and who advised former V.P. Mike Pence. Luttig has been studying Section Three for a long time, and he believes that Colorado's disqualification is "masterful" and "unassailable." Here is Judge Luttig again on a cable news show. He is more optimistic than I.
Another Remedy
There is one more use of Section Three, and that is Congressional action. It is a long shot, indeed an impossible shot. In my thinking, a supermajority vote in both houses could theoretically remove him from office if he were to be elected. As I sit here typing those words, I try to imagine that scene. It would be worse than January 6. But then, a re-do of the last term would be the end of us, too.
So....
The (ahem) Final Solution
To borrow a phrase from T****'s muse, Adolph Hitler, there is another solution. No, not that!! I'm only borrowing the phrase, not the idea! The last remedy: we must mobilize and fight from now til Election Day and make a second term for this clown impossible. There are fraught days ahead no matter what. Resisters, we must be strong and act decisively!
Get 👏 out 👏 the 👏vote!
It's true; we have never had a disqualification like this. But we have never had a defeated candidate try to overthrow the government, either. We are at a moment in history like no other. What the Supreme Court decides next month is not just right now. It is not just us. This is a decision forever and for history.
It is out of our hands.
After the decision, as we must, we will continue to RESIST!
