You're right that nobody should think that the Court doesn't take political consequences into account when it makes these decisions. But, if they were ever going to set those concerns aside and let the chips fall, it should be here. That's not because we're living in an Aaron Sorkin script. It's because why would anyone who has paid attention to the last decade think that it is possible to predict how the public will react to political developments related to Donald Trump? Did *anyone* think on January 7th that he'd be running away with the GOP nomination? Did *anyone* in 2017 think that he would spark a resurgence of GOP support from minority groups? Did *anyone* think he would, I dunno, incite a riot at the U.S. Capitol?
At some point, the John Robertses of the world need to accept that, while it's a pretty good idea not to irretrievably damage American democracy, Trump is a billion butterflies in China, and you shouldn't pretend to know whether the world is better off if they flap their wings or not. Maybe you get President Nikki Haley. Maybe Trump deliberately sabotages GOP turnout and Democrats run the table everywhere. Maybe Democrats cut a deal with Republicans to pass legislation removing the disability. If there was ever a time to write for posterity and prioritize issuing a ruling that you can explain to a layperson, it's now.
At the start of the Civil War, secessionist in Maryland tore up the rail line between Baltimore and Washington to stop troops from reaching the capital. They were put down in a few hours. If there are any records of people at the time calling that an insurrection, it would make a good originalist argument for how the word was understood at the time. Better still if any of the participants were later considered bound by the Insurrection Clause.
This is a great post! But I do have a couple quibbles (well, one quibble and one maybe-quibble that I'm too lazy to check).
First, I don't think it’s a “reasonable point” to say that “[i]t would be insanely anti-democratic—the very peak of judicial activism—to disenfranchise millions of voters who support Trump.”
In fact, (1) applying the law as written is the exact opposite of judicial activism; (2) it is not anti-democratic to prevent an insurrectionist from holding the highest office in the land (because he’s already shown anti-democratic tendencies himself!), and it is certainly not more anti-democratic than preventing a 34-year-old, naturalized citizens, or someone who has been president twice from becoming president; and (3) Trump supporters are not disenfranchised because they can vote for any eligible candidate they want! Heck, they can write-in Trump, even if he can’t be president.
Second, did Trump raise the "independent state legislature" "you gave me too much time!" argument in his petition for certiorari? I don't remember seeing it when I read the brief. If not, isn't that waived?
"Normative take: It would be insanely anti-democratic—the very peak of judicial activism—to disenfranchise millions of voters who support Trump. The voters, not federal judges, should decide whether Trump’s actions on January 6 are disqualifying."
There seems to be a basic logical fallacy here. Disqualifying Trump to run for office is NOT disenfranchising millions of voters. Those voters still have the right to vote for any candidate of their choice who IS qualified to run for office.
As an example, Arnold Schwarzenegger was qualified to run for Governnor of California (and win). He is not qualified to run for the Presidency because he was born outside of the United States. We do not say that people who might otherwise support Schwarzenegger have been disenfranchised; we say that Schwarzenegger doesn't meet the qualifications for the office.
I was born in the United States; I am more than 35 years old. I have not lived in the US for the last 14 years. It would be an error to claim that the five or six people who might like to vote for me have been disenfranchised; I don't meet the qualifications to be President.
According to the 14th Amendment, someone who has engaged in insurrection is not qualified to run for office. Those who might like to vote for Trump have not been disenfranchised; they have the right to vote for any candidate who qualifies.. No one is proposing taking that right away.
I think the practical effects of Trump being on the ballot in some states but disqualified from office in others is a scenario that the Court will want to avoid at all costs.
It leads to some uncomfortable... one might say 'absurd'... results should Colorado's ruling stands as it is.
I don't see how it's hard to write an opinion holding that Jan 6th was a political riot but not itself an insurrection.
The test the CO supreme court gives is facially absurd.
"a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”
Trump tells his SS to open up a path to the capital through protestors so he can convince Pence to throw the election to the house. That's a concerted public use of force with the goal of doing the same thing they say suffices to meet the test. Doesn't even matter if it's unlawful or not.
And WTF does prevent the peaceful transfer of power mean? Trump wasn't trying to engineer a violent transfer of power merely cause it to transfer to him.
Does that mean that anytime anyone has an incorrect view on any constitutional requirement for the selection of the president and encourages any violence about it they qualify? Imagine that the house is trying to vote (after the election gets thrown to the house) and the president asks some of his guys to delay some representatives so they can't sneak in a vote before members who support his canidacy arrive to vote? Is that a violation?
Fuck what if someone just asks their followers to go loot a bank so they can use the money to lobby/bribe SCOTUS?? No one actually checked this test works in other cases only that it gave the right vibe here.
IMO an insurrection isn't just an attempt to steal an election that involves use of force in the conspiracy. They could have said: tries to subvert the execution of the constitution by force. No, they drafted the amendment in light of the civil war which suggests an insurrection requires an attempt to openly challenge the state's monopoly over violence/authority via force.
In other words seizing and *holding* the capital or making the senators vote at gunpoint or even saying: we don't acknowledge federal authority in this area and denying IRS agents access via force all count. However, it's not enough to merely use political violence in a conspiracy to seize power if the conspiracy itself didn't qualify.
The one part of this I don't quite get is the premise that the Court will likely rule in a substantive way before Trump's criminal trial in DC. But why? The CO SC has stayed its ruling so Trump is still on the primary ballot for now. Yes, the criminal trial is currently scheduled to not be over by that point (and may well be delayed anyway), but there will be other non-moot challenges to later primaries and they could always decide one of those instead of this one. If you SCOTUS, why not wait and see what happens with the criminal trial (which you can make happen quickly if you want): that way if you rule Trump ineligible you have more evidence and if you rule him eligible you don't have to address hypothetical future criminal convictions in your opinion. Plus three months is not a long time as the Court normally moves, though it could certainly move that quickly if it wanted to.
Regarding whether "officer" in 14A S3 includes the President, does this hypothetical work?
Suppose that the day after this amendment is adopted, a state changes their constitution to say that the Governor isn't an officer. Then, someone is elected Governor who has never been in any position before. The new Governor takes an oath to support the Constitution. Next, that Governor engages in insurrection. Finally, the Governor runs for re-election. Is he/she disqualified? Of course. Why? Because in 14A S3 the term officer means "someone who holds an office" and not "someone declared an officer." In this provision, an officer is someone who is an officer by the nature of their position, not someone who is an officer based on the technical categorizations of officeholders for other purposes in other texts.
If state officer means officeholder, then federal officer in the same text means officeholder and therefore includes the President.
…the January 6 Report prepared by the Democratic-controlled House Select Committee….
The party of control is irrelevant. All committees are controlled by one party. Laws are passed by chambers controlled by one party often with only the support of one party. That does not make them less of a law.
The select committee was a committee of the house, not an informal Dem party structure.
Even though "[t]he Colorado Supreme Court holds that the 'engaged in' standard requires 'an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose,'" need the US Supreme Court do the same? In Baude and Paulsen's law review article, they write: "Sitting by and doing nothing declining to act to arrest a violent uprising, despite possessing the material capacity and legal responsibility to intervene—might qualify" as engaging in insurrection. As a layperson, I would think it does. It's akin to a security guard not doing anything when bank robbers open a vault. Clearly by inaction, said guard is participating in -- engaging in? -- robbery in some sense.
There seems to be something awry in the "self executing" business.
It's one thing to say that Congress needs not make any specific law to enact article 3. Fine. But there still needs to be some procedure for determining whether or not a given officer engaged in insurrection. The Colorado SC seams to be saying "Any one state court that doesn't even have jurisdiction over the alleged crimes can make a factual judgement".
That doesn't seem sound.
The US might not have a specific law enacting article 3, but it does have laws against insurrection. It would be nice if someone bothered to prove to a court (with jurisdiction) that Trump has actually violated one of those laws before they start taking away his rights as a citizen.
How could SCOCO's decision be binding on any other state supreme court? That doesn't make any sense; it would be like a federal circuit court of appeals binding a different federal court of appeals.
Thank you for the excellent post. One minor quibble...
"The January 6 Report. . .inescapably reflects the perspectives of the House Democrats who drafted it."
Have you turned Liz Cheney into a Democrat?
You're right that nobody should think that the Court doesn't take political consequences into account when it makes these decisions. But, if they were ever going to set those concerns aside and let the chips fall, it should be here. That's not because we're living in an Aaron Sorkin script. It's because why would anyone who has paid attention to the last decade think that it is possible to predict how the public will react to political developments related to Donald Trump? Did *anyone* think on January 7th that he'd be running away with the GOP nomination? Did *anyone* in 2017 think that he would spark a resurgence of GOP support from minority groups? Did *anyone* think he would, I dunno, incite a riot at the U.S. Capitol?
At some point, the John Robertses of the world need to accept that, while it's a pretty good idea not to irretrievably damage American democracy, Trump is a billion butterflies in China, and you shouldn't pretend to know whether the world is better off if they flap their wings or not. Maybe you get President Nikki Haley. Maybe Trump deliberately sabotages GOP turnout and Democrats run the table everywhere. Maybe Democrats cut a deal with Republicans to pass legislation removing the disability. If there was ever a time to write for posterity and prioritize issuing a ruling that you can explain to a layperson, it's now.
At the start of the Civil War, secessionist in Maryland tore up the rail line between Baltimore and Washington to stop troops from reaching the capital. They were put down in a few hours. If there are any records of people at the time calling that an insurrection, it would make a good originalist argument for how the word was understood at the time. Better still if any of the participants were later considered bound by the Insurrection Clause.
Excellent post.
This is a great post! But I do have a couple quibbles (well, one quibble and one maybe-quibble that I'm too lazy to check).
First, I don't think it’s a “reasonable point” to say that “[i]t would be insanely anti-democratic—the very peak of judicial activism—to disenfranchise millions of voters who support Trump.”
In fact, (1) applying the law as written is the exact opposite of judicial activism; (2) it is not anti-democratic to prevent an insurrectionist from holding the highest office in the land (because he’s already shown anti-democratic tendencies himself!), and it is certainly not more anti-democratic than preventing a 34-year-old, naturalized citizens, or someone who has been president twice from becoming president; and (3) Trump supporters are not disenfranchised because they can vote for any eligible candidate they want! Heck, they can write-in Trump, even if he can’t be president.
Second, did Trump raise the "independent state legislature" "you gave me too much time!" argument in his petition for certiorari? I don't remember seeing it when I read the brief. If not, isn't that waived?
"Normative take: It would be insanely anti-democratic—the very peak of judicial activism—to disenfranchise millions of voters who support Trump. The voters, not federal judges, should decide whether Trump’s actions on January 6 are disqualifying."
There seems to be a basic logical fallacy here. Disqualifying Trump to run for office is NOT disenfranchising millions of voters. Those voters still have the right to vote for any candidate of their choice who IS qualified to run for office.
As an example, Arnold Schwarzenegger was qualified to run for Governnor of California (and win). He is not qualified to run for the Presidency because he was born outside of the United States. We do not say that people who might otherwise support Schwarzenegger have been disenfranchised; we say that Schwarzenegger doesn't meet the qualifications for the office.
I was born in the United States; I am more than 35 years old. I have not lived in the US for the last 14 years. It would be an error to claim that the five or six people who might like to vote for me have been disenfranchised; I don't meet the qualifications to be President.
According to the 14th Amendment, someone who has engaged in insurrection is not qualified to run for office. Those who might like to vote for Trump have not been disenfranchised; they have the right to vote for any candidate who qualifies.. No one is proposing taking that right away.
And with the Maine decision today, the chances improve a little further again.
This is outstanding analysis. I look forward to each of Adam’s incisive posts.
I think the practical effects of Trump being on the ballot in some states but disqualified from office in others is a scenario that the Court will want to avoid at all costs.
It leads to some uncomfortable... one might say 'absurd'... results should Colorado's ruling stands as it is.
I don't see how it's hard to write an opinion holding that Jan 6th was a political riot but not itself an insurrection.
The test the CO supreme court gives is facially absurd.
"a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”
Trump tells his SS to open up a path to the capital through protestors so he can convince Pence to throw the election to the house. That's a concerted public use of force with the goal of doing the same thing they say suffices to meet the test. Doesn't even matter if it's unlawful or not.
And WTF does prevent the peaceful transfer of power mean? Trump wasn't trying to engineer a violent transfer of power merely cause it to transfer to him.
Does that mean that anytime anyone has an incorrect view on any constitutional requirement for the selection of the president and encourages any violence about it they qualify? Imagine that the house is trying to vote (after the election gets thrown to the house) and the president asks some of his guys to delay some representatives so they can't sneak in a vote before members who support his canidacy arrive to vote? Is that a violation?
Fuck what if someone just asks their followers to go loot a bank so they can use the money to lobby/bribe SCOTUS?? No one actually checked this test works in other cases only that it gave the right vibe here.
IMO an insurrection isn't just an attempt to steal an election that involves use of force in the conspiracy. They could have said: tries to subvert the execution of the constitution by force. No, they drafted the amendment in light of the civil war which suggests an insurrection requires an attempt to openly challenge the state's monopoly over violence/authority via force.
In other words seizing and *holding* the capital or making the senators vote at gunpoint or even saying: we don't acknowledge federal authority in this area and denying IRS agents access via force all count. However, it's not enough to merely use political violence in a conspiracy to seize power if the conspiracy itself didn't qualify.
The one part of this I don't quite get is the premise that the Court will likely rule in a substantive way before Trump's criminal trial in DC. But why? The CO SC has stayed its ruling so Trump is still on the primary ballot for now. Yes, the criminal trial is currently scheduled to not be over by that point (and may well be delayed anyway), but there will be other non-moot challenges to later primaries and they could always decide one of those instead of this one. If you SCOTUS, why not wait and see what happens with the criminal trial (which you can make happen quickly if you want): that way if you rule Trump ineligible you have more evidence and if you rule him eligible you don't have to address hypothetical future criminal convictions in your opinion. Plus three months is not a long time as the Court normally moves, though it could certainly move that quickly if it wanted to.
Regarding whether "officer" in 14A S3 includes the President, does this hypothetical work?
Suppose that the day after this amendment is adopted, a state changes their constitution to say that the Governor isn't an officer. Then, someone is elected Governor who has never been in any position before. The new Governor takes an oath to support the Constitution. Next, that Governor engages in insurrection. Finally, the Governor runs for re-election. Is he/she disqualified? Of course. Why? Because in 14A S3 the term officer means "someone who holds an office" and not "someone declared an officer." In this provision, an officer is someone who is an officer by the nature of their position, not someone who is an officer based on the technical categorizations of officeholders for other purposes in other texts.
If state officer means officeholder, then federal officer in the same text means officeholder and therefore includes the President.
Thoughts?
…the January 6 Report prepared by the Democratic-controlled House Select Committee….
The party of control is irrelevant. All committees are controlled by one party. Laws are passed by chambers controlled by one party often with only the support of one party. That does not make them less of a law.
The select committee was a committee of the house, not an informal Dem party structure.
Even though "[t]he Colorado Supreme Court holds that the 'engaged in' standard requires 'an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose,'" need the US Supreme Court do the same? In Baude and Paulsen's law review article, they write: "Sitting by and doing nothing declining to act to arrest a violent uprising, despite possessing the material capacity and legal responsibility to intervene—might qualify" as engaging in insurrection. As a layperson, I would think it does. It's akin to a security guard not doing anything when bank robbers open a vault. Clearly by inaction, said guard is participating in -- engaging in? -- robbery in some sense.
There seems to be something awry in the "self executing" business.
It's one thing to say that Congress needs not make any specific law to enact article 3. Fine. But there still needs to be some procedure for determining whether or not a given officer engaged in insurrection. The Colorado SC seams to be saying "Any one state court that doesn't even have jurisdiction over the alleged crimes can make a factual judgement".
That doesn't seem sound.
The US might not have a specific law enacting article 3, but it does have laws against insurrection. It would be nice if someone bothered to prove to a court (with jurisdiction) that Trump has actually violated one of those laws before they start taking away his rights as a citizen.
How could SCOCO's decision be binding on any other state supreme court? That doesn't make any sense; it would be like a federal circuit court of appeals binding a different federal court of appeals.