I dislike Trump…. can’t say I mind him off the ballot as a thing. I have no idea whether the legality is correct or not. I’m sure there will be further law suits. I’m still interested in what people think of as pros and cons.
315 thoughts on “Trump blocked from CO ballot.”
Comments are closed.
Lock em up!
I refer to the Colorado Supreme Court, for blatant election interference.
SCOTUS will presumable put them in their place. In case there is any confusion, I don’t actually mean that place is in jail. But if the Dems don’t reconsider the path they are on, that is where we will end up.
Wow! What a dumb thing to do.
This is for the primary, which Trump will win regardless. But still.
https://www.denverpost.com/2023/12/19/donald-trump-colorado-ballot-case-supreme-court-14th-amendment/
Yes, it is nominally just for the primary. But i don’t see how they could bar a candidate from the primary ballot and then say he is allowed on the general election ballot. Other states have refused to bar Trump from primary ballots (on the grounds that that is a decision for the party) while leaving open the possibility of banning Trump from the general election ballot.
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The one good thing is that we will get clarification from SCOTUS.
A bad sign for the ruling being upheld is that the Colorado court split 4-3 even though all 7 justices were appointed by Democrat governors.
Mike M.
That’s actually a very good thing. Clarity on the law would be useful.
I think this is saying Trump’s name will appear on the ballot if (a) he appeals and (b) the federal justices doesn’t block his name from appearing:
https://www.denverpost.com/2023/12/19/donald-trump-colorado-ballot-case-supreme-court-14th-amendment/
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Hhhmmm…. is the president “an officer of the united states”? I think I’ve skimmed a lot of discusson of that at Volokh…. this is likely why. I mean, he’s certainly not a Senator…
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But he would seem to “hold [an] office […] under the United States”… Unless “under” has some special legal meaning. (I seem to recall that’s a debate…)
Oy!
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I note it also doesn’t say convicted…..
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“But Congress may by a vote of two-thirds of each House, remove such disability.”
Congress aint gonna do that!!
I will wait a bit before I remark further on this. A day or so I imagine. I need to organize my thoughts.
The CO SCOTUS ruling
https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf
I’m reading dissents first. 🙂
This is going to be a slog.
It seems to me that President is not included. They list the most important offices, then a catchall for the lesser offices. I doubt they just overlooked President and Vice-President.
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The thing that led to that section apparently was former Confederate States sending unrepentant Confederates to Congress. So they slapped down the ability of states to due that. Not an issue for President.
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It looks to me like that is one of three key issues that might have to be adjudicated. The other two being if a conviction is needed and who gets to decide on excluding someone.
MikeM
Three justices dissented. The president not being included doesn’t seem to be something they worried about.
(Josh Blackman has gone on at length about that, but that doesn’t seem highlighted in the dissents.)
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Berkenkotters main gripe seems to be
That would seem to be a CO law issue.
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JUSTICE SAMOUR dissenting.
Main gripes:
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CHIEF JUSTICE BOATRIGHT dissenting.
That would also seem to be a CO law issue.
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I don’t think SCOTUS is likely to overrule CO SCOTUS on CO law. That said, I’m not a lawyer…. so maybe they would?
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(Unless I’m missing something which is possible. I skimed) the only dissenting judge who dissents on a federal basis is Samour.
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I haven’t read the ruling yet– just skimmed dissents.
This is how CO SCOTUS deals with the “officer under the United States” etc. argument
So: Senators and Congresscritters are mentioned specifically because they are not officers: they are members of congress. (This actually makes sense). The President is an “office”. He holds it, so he is an officer. There is no fancy schmacy meaning of “under” that makes him not be an “officer under”.
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This strikes me as easily dealing with Josh Blackman’s argument about the “officer” issue — which he wrote as far back as 2021.
MikeM
I think I disagree. Two of the dissenting justices did so based on what the CO statute does or does not authorize the CO electors to do. That’s CO Law. I suspect US Scotus will generally defer to CO in interpreting their own law. And no one is arguing the CO law would violate the US constitution.
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So as far as the substance of the dissent by CO justices goes, the only one that is sort of “US Constitution” appears to be the one about due process and whether the section 3 of the 14th amendment is “self-executing”. I admit to only skimming, but I found the ruling more convincing on the idea that it is self executing than Samour’s argument it is not. Of course…. I don’t actually know all the history etc in there. But I’m not seeing much promise of SCOTUS over turning this based on what Samour wrote.
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On the one hand, I would much rather the Trump fell off the ballet by falling gravely ill so that he couldn’t campaign and looked like he couldn’t run. And blocking people from ballots is …. a delicate thing. We know totalitarian governments block people all the time.
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But we do have a constitutional provision for blocking people, and for having some qualifications. If section 3 in the 14th amendment exists, there has to be some way of making it actually function.
I saw this
“Donald Trump Says He Never Swore Oath ‘to Support the Constitution”
https://www.newsweek.com/donald-trump-oath-support-constitution-colorado-insurrection-1847482
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The current ruling has the CO SCOTUS quoting dictionary definitions of “insurrection” and “engage”, getting suitably old dictionaries.
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I can only imagine US SCOTUS giving us dictionary definitions of “support”.
https://www.merriam-webster.com/dictionary/support
“2a
(1): to promote the interests or cause of
(2): to uphold or defend as valid or right : advocate
supports fair play
(3): to argue or vote for supported the motion to lower taxes”
The Col ruling is stayed if Trump appeals to the Supreme Court. If no other state copies Colorado, then the Supreme Court is free to stick to its normal schedule and drop the case as moot after the election.
Trump will appeal. My bet is MikeN is right: The SC can just stay the CO order and wait out the election.
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I think Dems are playing with fire here, and they may not appreciate the potential damage they can do. Trump has been convicted of no crime that would disqualify him, in Colorado or anywhere else. If Trump can be disqualified, then courts in any state could disqualify any candidate they might wish to….. for example disqualify Biden for ‘obvious’ corruption, even with neither trial nor conviction. This is banana republic stuff.
Conviction is not a requirement. But I think it was nuts for Colorado to take this course
Here is a good article analyzing why a President is not an “officer” under the 14th amendment.
https://reason.com/volokh/2021/01/20/is-the-president-an-officer-of-the-united-states-for-purposes-of-section-3-of-the-fourteenth-amendment/
This ruling is so blatantly biased and wrong that I actually think the Supreme Court will take it and overturn it. The states have conflicting rulings now and it is pretty important to find out if a state can deny a person the right to run when they have never been charged or convicted of insurrection – but merely gave a speech! A speech in which he asked for peaceful protest.
MikeN
My understanding is it is stayed until Jan 4 if he does not appeal.
* If he does not appeal, the stay ends. (This won’t happen… but… still.)
* If he does appeal, then a new stay could be put in place by the federal court. The federal court could create their own stay quickly… wait… not do it at all. (I think they would put a new stay in place quickly. LIkely quickly enough to for Trump to get put on the ballot.)
But at that point court cases would be in play, and we’d be on our way to US SCOTUS.
RickA,
That argument was made to CO SCOTUS. The ruling rejects it. No one in the dissent buys it. The lower court did buy it.
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I actually find what the ruling said convincing about that. (See quote above.) The main gist: The president is an officer of the court. Then have tons of past historical evidence for the usage — including discussin in congress about the meaning of the words of Section 3. They explain the reason Senators and Congressman are specifically called out is because they are not “officers” because their positions are not “offices”. They are “members”.
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The argument has the benefit of clarity– which Josh Blackman’s convoluted one never did have. (Ilya Sonim at Volokh had previously pointed this out about Blackman’s argument.)
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I doubt SCOTUS is going to go for that argument. But who knows?
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I do think CO’s path is unfortunate. But given their election law exists, I’m not sure what the else board in charge of putting the ballot together could do. I don’t doubt the also wanted to keep Trump off– but the also need to follow what their law says. And if the think he is disqualified in anyway they are required to keep his name off. (They would be requried to keep a 25 year old off.)
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After that, it was bound to go to the court. And so on.
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We’ll see what happens.
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Of course, I also think it is unfortunate Trump is running. It’s unfortunate he doesn’t just go away. Lots of unfortunate thing going on.
Steve,
This is what I was thinking too. Trump probably wasn’t going to carry Colorado anyway; the place has been blue for 20 years. Maybe Alabama will disqualify Dem candidates in years to come. I don’t see the potential good that comes from this, but I see potential pitfalls.
john fergusom
“I think it was nuts for Colorado to take this course”
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I agree, but should the Supreme Court of the USA not block it, the Colorado action will set a an almost unbelievably destructive precedent, inviting a state-by-state tit-for-tat of disqualifying candidates based on politically motivated determination of a candidate’s “guilt” absent a trial and conviction. This is a pre-civil war level of political conflict, and I honestly think the members of the Colorado SC need psychiatric treatment.
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I will be shocked if the SC does not place a stay on the Colorado order.
The US President is NOT an “Officer of the United States” by court rulings.
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“There is a recent Supreme Court opinion discussing the scope of the Constitution’s “Officers of the United States”-language. In Free Enter. Fund v. Pub. Co. Accounting Oversight Bd. (2010), Chief Justice Roberts observed that “[t]he people do not vote for the ‘Officers of the United States.'” Rather, “officers of the United States” are appointed exclusively pursuant to Article II, Section 2 procedures. It follows that the President, who is an elected official, is not an “officer of the United States.”.”
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Discussed in
https://reason.com/volokh/2021/01/20/is-the-president-an-officer-of-the-united-states-for-purposes-of-section-3-of-the-fourteenth-amendment/
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mark bofill
They have to follow due process. That would mean their legislature has to have already passed a law about how someone gets on the ballot. Then they have to pass that law. Then the candidate can appeal. Then….
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This issue of disqualifying is discussed in the ruling. I mean: Can any state prevent someone to young to be qualified according to the US constitution to appear on the ballot Yes. They can. Can they prevent a naturalized citizen from appearing? Yes. They can.
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Under Section 3 of the 14th amendment, the guilt has to be for a certain thing. It can’t just be for taking bribes, selling weed, prostitution or yada, yada.
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It has to be for insurrection or rebellion.
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I won’t. I read the ruling and the dissents. I think SCOTUS won’t stay it. I could be wrong, but that’s what I anticipate.
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The only good argument for a stay I can see is there was not sufficient due process. Trump’s lawyers claimed this (and a zillion other things). The CO ruling (and one dissent) discuss this.
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(SCOTUS could go back to Blackhum’s “not an officer under the United States” etc. But I read the arguments back and forth and I doubt they will.)
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I don’t think SCOTUS will say “wrong crime”– like “this was really only selling weed which isn’t in Section 3”. I mean… it was pretty much an insurrection by the dictionary.
They don’t usually judge “matters of fact” (i.e. “did he do it”)– so won’t rejudge the CO courts decision on whether there was evidence for the “insurrection”. They just almost never do that— they leave it to lower courts to decide that. The lower courts did.
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“Colorodo is nuts” isn’t going to be a valid argument at the court.
Ed Forbes–
Yes. You quoted Blacknum’s strongest argument. I think Robert’s is going to change his mind on that. There is a second type of officer mentioned the “under the united states” one.
Lucia,
Maybe so. I wasn’t arguing so much that Colorado acted illegally as that Colorado acted in a dumb and possibly counterproductive manner. I don’t think this keeps Trump out of office, unless it serves to embolden swing states to remove him from the ballot. But if courts remove Trump from the ballot in swing states, in Florida for instance, they are playing with fire and the possibility of generating a real armed insurrection, unlike the political theater insurrection of January 6’th.
I don’t think anything good will come of this.
Lucia,
Want to wager?
mark
It might not– unless other states do the same.
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SteveF
Coupon for a dozen donuts?
Lucia,
Also, my remark about Alabama doing something similar – when people decide not to cooperate, often a way can be found to twist laws to accomplish it. The law alone does not keep us together as a Republic at the end of the day IMO, what prevents civil disorder and civil war is that people voluntarily go along.
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[Edit:
Quatloos!]
Ed Forbes,
I think Roberts will say that in context his “the officers” meant “these officers”, not “all officers. It can be read that way in context.
Lucia,
Relying on Roberts to relent from his recent remarks is “wishful “, at best.
Directly from Robert’s ruling for reference
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https://supreme.justia.com/cases/federal/us/561/477/#
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“The diffusion of power carries with it a diffusion of accountability. The people do not vote for the “Officers of the United States.” Art. II, §2, cl. 2. They instead look to the President to guide the “assistants or deputies … subject to his superintendence.” The Federalist No. 72, p. 487 (J. Cooke ed. 1961) (A. Hamilton). Without a clear and effective chain of command, the public cannot “determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.” Id., No. 70, at 476 (same). That is why the Framers sought to ensure that “those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.” 1 Annals of Cong., at 499 (J. Madison).”
Lucia,
A bottle of a decent wine (under $30)? Winner chooses.
mark
Yeah…. but I don’t really see any twisting going on.
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Section 3 of the 14th has never been applied to the president. But it is there in the constitution. And it’s not “twisting” to call Jan 6 an insurrection– it meets the dictionary definition. And it’s not “twisting” to say Trump was involved.
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That section doesn’t say “convicted”. (Probably because at the time of the Civil war the people writing it didn’t want it limited to “convicted”. No one got “convicted” of being a troop in the Confederacy or even an officer.) The section doesn’t say “took up arms” (probably because those writing it wanted to get politicians as much as troops. LIkely the wanted to cover the politicians even more than the troops.)
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And it’s not twisting to say the Colorado election board is governed by a law.
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I get that laws can be twisted. But that doesn’t mean this one was.
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To say it’s “twisting” you have to claim it wasn’t an insurrection– but the courts just read the dictionary. Or you have to say he wasn’t ‘engaged’ (or whatever the word is..) and the courts come back with the dictionary. Or you need Blacknums “not an officer of the United states”. Or Trump’s recent “I didn’t take an oath to support the constitution” (Not real quote– but basically hinges on he didn’t literally use the word ‘support’ in the oath of office.” The literal words were “preserve, protect and defend” which somehow isn’t “support”.)
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OR you have to say not enough due process– which IS being argued.
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Yes. Chaos can ensue. But that’s not much of a legal argument. (And of course, one way for chaos not to ensue would have been for Trump to not run. And it’s possible chaos could ensue if he’s elected. He is being an agent of chaos. )
To put this in perspective, Congress oversees the President with impeachment authority and the President oversees “Officers of the United States”, who implement the laws.
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A clear division between these three groups of power
Ed Forbes
Yes. I think changing “the” to “these” is a simple change. I don’t think expecting Roberts to wave like a wil’o the wisp is much in the way of wishful thinking. He does it all the time.
Ed Forbes
There are lots of officers in the military. One officer can over see other officers. Generals oversee lower officers. So the fact of “overseeing” an officer doesn’t make someone not an officer.
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The Presidency is an “office”. The person in that office is an officer. He oversees other officers.
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I’ve read the arguments– I don’t think they are going to fly. I could be wrong. But Roberts is a will-o-the wisp. Assuming he won’t change…. not a great bet.
Lucia,
“They would be requried to keep a 25 year old off.”
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Of course, but that is not nearly the same thing. Someone’s age can be determined without a jury trial. Someone’s place of birth can be determined without a jury trial. These are matters of fact. That someone is proclaimed guilty of “insurrection”, where there has been no conviction of any kind, is just nutty.
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Let’s see, Mississippi passes a law tomorrow which says anyone obviously ‘guilty’ of bribery, as determined by a group of Mississippi judges, without a trial and conviction, can’t appear on a Mississippi ballot….. The SC will not let this stand, for at least two different reasons: 1) lack of due process, making the Colorado law unconstitutional on its face, and 2) Colorado does not have the authority to determine who is “an officer of the USA”; only Federal courts have that authority.
Lucia,
It’s fine that you don’t think calling Jan 6’th a real insurrection is a stretch, or that it fits the dictionary definition. Do you think that will mollify Trump’s supporters? I don’t. I still think this was stupid, unnecessary, and counterproductive.
It is possible that people will start twisting laws in response to this. Alabama has already demonstrated willingness to do stupid, hare brained things regarding abortion. Why not this.
I don’t see what good will come of this, but there is potential for a lot of harm to come from it.
Lucia,
you are commingling the general term “office” with “officer of the united states” without foundation, only by assertion.
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Linking generic to specific requires specific foundation.
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Anyway, the USSC decision on this will make for interesting reading.
SteveF
That it’s easier to determine doesn’t change the fact that the state has a right to keep people off the ballot. And if something is disputed, you might need a jury trial for something simple.
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Sure. But the 14th amendment doesn’t mention trial, conviction or anything! Given it’s purpose and the historic periods, my guess is that as intentional. No one was going to be charged with having fought on the confederate side of the war much less convicted. There would be no “trial”.
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But that’s not what CO did. You’re changing it to something not in the US Constitution. If CO did that, the Feds could say “The US constitution provides the qualifications. States don’t get to add or subtract from those. Stay in your lane”.
All CO says people whoa re not qualified for the office can’t be on the ballot. And the US Constitution dictates who is qualified– not CO. This isn’t making up a new rule.
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If States can’t keep people who are disqualified by the US constitution off their ballot, and so prevent their electors from casting votes for people who are disqualified, how do we prevent people who are disqualified from being elected? Or occupying the office?
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I mean… real question. What is the mechanism? Is it anyone can get on the ballot, we wait for the election, wait for the Chief Justice to say “Sorry, I’m not swearing this guy in?”
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There has to be a mechanism or multiple mechanisms to enforce the qualifications listed in the US constitution.
SteveF
SCOTUS could conceivably say this. But the CO court addressed that argument– the have a process. The case went through a board and then to the district court. That is a normal “due” process for putting things on the ballot.
Colorado isn’t “determining” this. They also don’t “determine” what an insurrection is. The question will be whether the president is or is not an officer of the US. If he is, it doesn’t matter whether CO correctly identified him as such. If it’s not then he’s not.
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This isn’t a “power”.
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I think SCOTUS will decide he is an officer of the United states. But maybe not. Maybe they will buy Blacknum’s arguments. (Even Blacknum says his argument is not a slam dunk. He writes there are four possible was to interpret and some say the president is an officer. Blacknum and his coauthor just think their argument is better.)
Lucia,
Fifth amendment says life, liberty, and property may not be taken without due process. Due process is consistently held by federal courts to mean trial by jury. Surely being barred from elective office is infringing on someone’s liberty. If due process becomes whatever a bunch of state judges decide, then we are screwed as a country.
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The SC will not allow this to stand, and will ultimately (unless the case is dropped as moot after 2024) rule against CO. And fortunately we won’t have to wait very long to hear from them about a stay.
Ed Forbes (Comment #227254): “To put this in perspective, Congress oversees the President with impeachment authority and the President oversees “Officers of the United States”, who implement the laws.
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A clear division between these three groups of power”
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I agree with Ed.
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It is difficult to decipher exactly what the Constitution means by “office” and “officer”, especially when one includes the various qualifiers (“Office of honor, Trust or Profit”, “Officer of the United States”, “Office under the Authority of the United States”).
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The language of the 14 Amendment mirrors the language of Article 6:
Does that include the President? Maybe not, since Article 2 specifies an oath for the President.
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I don’t see how CO law can be used to specify who is eligible to be President. That looks like a clear breach of separation of powers. State law must be superseded by the Constitution and federal law. The alternative is chaos, as several others have pointed out above.
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With regard to elective offices, the Constitution specifies certain qualifications. Article 14 provides an additional qualification. So who decides if those qualifications are met. Not the courts, since that would violate separation of powers.
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For Representatives, the Constitution is clear: the House decides. For Senators, also clear: the Senate decides. The logic is pretty obvious.
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So who decides in the case of the President? From Article 2 (and the precedent set in Article 1) I think it is clear: The Electoral College decides. I don’t see anything in the Constitution that overrides that.
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That is a problem since the Electoral College never worked as imagined in Article 2 with the result that it was replaced by the 12th Amendment. And the electors are no longer independent actors. But I don’t think the courts get to write a phantom amendment that fills in the oversight. The electors decide who is qualified.
mark
No. But I don’t think that’s a legal argument.
State, counties, schoolboards… what have you…. have always done stupid hair brained things. This isn’t the cause.
I didn’t say good would come out of this. I’m just predicting what SCOTUS will rule. And observing what sets the balls rolling.
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I see why states have laws guiding some appointed people to follow certain rules for putting people on ballots.
I see why the CO election board (or whatever the group is called) read the law and conclude the law dictates they must keep Trump off. So they followed it.
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I get why Trump sued.
I read the ruling and see the reasoning.
I predict (possibly incorrectly) that SCOTUS will uphold CO.
(I think SCOTUS would not uphold a law if the state barred people who smoked weed from being on the ballot– that’s not on the US constitution.)
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As for whether harm could come… Sure. I mean… the best way to avoid chaos is Trump say he’s thought it over and he’s decided to bow out and sip margaritas at Mar-a-lago with his family. That’s not going to happen.
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The argument of “that will cause harm” just doesn’t always work.
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MikeM
Sure. But electors aren’t appointed by God. Or even birth right.
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States have always been involved in who gets to be an elector and how they pick the electors who are then imbued with decision making power over the votes cast by that State. That’s what CO is doing.
lucia (Comment #227260): “If States can’t keep people who are disqualified by the US constitution off their ballot, and so prevent their electors from casting votes for people who are disqualified, how do we prevent people who are disqualified from being elected?”
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Don’t vote for them. That’s how.
SteveF (Comment #227262): “Fifth amendment says life, liberty, and property may not be taken without due process. Due process is consistently held by federal courts to mean trial by jury.”
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Barring someone from office or removing someone from office is not taking that person’s “life, liberty, and property”. Just ask George Santos.
lucia (Comment #227265): “States have always been involved in who gets to be an elector and how they pick the electors who are then imbued with decision making power over the votes cast by that State. That’s what CO is doing.”
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That is a reasonable argument. But I don’t think that a state can say that a certain person may be an elector for DeSantis but that same person may not be an elector for Trump.
Unintended consequences… the Russian invasion of Ukraine has resulted in Europe, especially Germany and Poland, undertaking a huge military buildup:
“December 18, 2023, PATRIOT, IRIS-T, Meteor: Germany approves major missile procurements”
Germany just ordered 500 patriot missiles to replace 100 sent to Ukraine.
The US taxpayer and defense industries will be reaping the benefits for decades.
Mike M,
The constitution states clearly that the houses of Congress set their own rules for membership. Santos being kicked out of the House is irrelevant.
Colorado GOP response:
https://www.foxnews.com/politics/trump-ballot-decision-colorado-gop-says-it-will-move-primary-caucus-system
Lucia,
No, I know you were talking about law, I wasn’t.
So I understand your position though, why do you believe Jan 6’th was an insurrection as opposed to a protest turned riot? Is it because of the House select committee findings, or something else?
Ed Forbes provided an interesting link (reproduced below) to an article at Volokh. In addition to various technical arguments re “office” they mad a very important point:
https://reason.com/volokh/2021/01/20/is-the-president-an-officer-of-the-united-states-for-purposes-of-section-3-of-the-fourteenth-amendment/
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I find it abhorrent that unelected officials can tell people who they are permitted to vote for.
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I find it interesting that the Anti-Democratic party is fanatical about making it easier for people to vote while at the same time wanting to limit who people are allowed to vote for. It makes since when you realize that what they want is a sham democracy that they control. IMO, expanding mail-in balloting etc. is not really about making it easier for people to vote, it is about making it easier to stuff ballot boxes.
Therefore, to maintain the status quo pending any review by the U.S. Supreme
Court, we stay our ruling until January 4, 2024 (the day before the Secretary’s
deadline to certify the content of the presidential primary ballot). If review is
sought in the Supreme Court before the stay expires on January 4, 2024, then the
stay shall remain in place, and the Secretary will continue to be required to include
President Trump’s name on the 2024 presidential primary ballot, until the receipt
of any order or mandate from the Supreme Court.
I had forgotten this, don’t know if anyone else had. Do y’all recall that the January 6’th select committee had a TV producer involved, to help stage the proceedings for dramatic effect? Yet the ruling of this committee is the basis of denying voters the chance to vote for the guy they want. This doesn’t pass the smell test for me.
[Edit: From the get go, everyone knew the decision the committee would reach. From the article:
]
Didn’t take very long for Democrats to start calling for California to jump on the bandwagon as well.
Yay Democracy! Heh.
Meanwhile, NeverTrump is going to war with No Labels. Some of them met for over an hour to plan attacks against potential candidates, warning them their career would be damaged. All according to this site Semafor.
https://www.semafor.com/article/12/19/2023/the-plot-against-no-labels
SteveF,
Wine can’t be shipped from out of state sellers to Illinois! That might not work.
MikeM
The disqualifications in the US constitution are irrelevant if those disqualified can be seated when they aren’t qualified. Your notion doesn’t work if we all vote for someone 21 years old. Or Arnold Schwarzennegger.
Lucia,
These lefty states are so backward. OK. Gift certificate.
Mark
I’ll tell you what The CO supremes say.
First operating definition
blah. blan.
So far, possibly just a riot. But what makes it an insurrection is wanting to interfere with government actions, etc. So on what those ‘rioting’ tried to accomplish. This is the goal that makes it a special kind of riot– and insurrection”
The distinction of trying to interfere with the certification process is what makes this an “insurrection” rather than merely a riot.
Lucia,
For you, maybe: Petersen Wine Cellars, 8 W Gartner Rd Naperville, IL 6054.
For me: Total Wines and More, 2550 NW Federal Highway,
Stuart, FL 34994
“The distinction of trying to interfere with the certification process is what makes this an “insurrection” rather than merely a riot.”
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Absolutely not convinced. Neither will be 6 or 7 on the SC.
Whoa, wait. The Colorado Court reviewed evidence and decided Trump was an insurrectionist? [Edit: Yes, I see that they did. OK]
If the Supreme Court intervenes, then they would have to rule Trump is not an insurrectionist and overrule Colorado, or support Colorado’s ruling declaring Trump an insurrectionist, and thus removing him from all states.
14th Amendment, section 3:
Biden is giving aid and comfort to Iran, China, and the millions of people pouring illegally across our southern border which include drug traffickers, members of criminal gangs, and terrorists. Time to start banning Biden from ballots.
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Ridiculous, of course. But no more ridiculous than what the Dems are doing.
lucia (Comment #227279): “The disqualifications in the US constitution are irrelevant if those disqualified can be seated when they aren’t qualified.”
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Not irrelevant. The qualifications can be invoked by those with the responsibility of doing so: The Senate for Senators, the House for Representatives, the electors for President. It is not up to the courts.
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Sometimes those bodies have chosen to invoke such qualifications, sometimes not. The latter never seemed to do any damage.
—–
lucia: “Your notion doesn’t work if we all vote for someone 21 years old. Or Arnold Schwarzennegger.”
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I don’t see why that is a problem. The people are sovereign.
Mike M.
I have no idea why you think it’s not up to the courts!
Well… if you don’t see why that’s a problem, then you don’t think the Constitution needs to be followed. If you don’t think it needs to be followed, then you don’t get to pick and chose which of the bits get to be followed. And it’s pretty irrelevant to even discuss anythign to do with our government with you.
J. Turley (George Washinton Law professor, and a self proclaimed life-long Democrat):
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“Colorado’s Supreme Court split 4-3 on the question. The majority admitted that this was a case “of first impression” and that there was “sparse” authority on the question. Yet, the lack of precedent or clarity did not deter these justices from making new law to block Trump from running. ……. January 6, 2021, was many things — and all of them bad. However, it was not an insurrection. I was critical of Trump’s speech to a mob of supporters that day, and I rejected his legal claims to stop the certification of the 2020 presidential election in Congress. However, it was a protest that became a riot, not a rebellion.”
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The US SC will smack this down in a heartbeat. It is absolutely nutty, 100% politically motivated jurisprudence… although I object to applying the adjective “jurisprudence” to the ruling… closer is juris-imprudence. These people need their heads examined by a competent psychiatrist.
SteveF,
Sounds like a bet! $30 gift certificate to be purchased when SCOTUS Rules.
We do need to iron out wording. Given the branches of if’s…..
First: to be clear, the bet is about SCOTUS’s rulings — not what happens at the first Federal court. Lots of weird things can happen. (Colorado’s secretary is required to “certify” the primary ballots on Jan 5. The CO supreme court stay lasts until Jan 4. The primary is on March 5.)
If Trump doesn’t appeal in time to get any sort of stay or ruling and so isn’t on the best for that reason.. no bet. (That ain’t gonna happen.)
If Trump does appeal gets a stay from a LOWER court they stay the ruling pending further court ruling, no bet. (Trump will be on the ballot, but still no bet.)
The above just have to do with weird deadlines and almost nothing to do with any ruling.
After that:
If SCOTUS dodges with Trump ON the ballot OR if they rule Trump stays on the ballot you win.
If SCOTUS dodges with Trump OFF the ballot OR they rule Trump is off the ballot, I win.
The dodges options are there because owing to all the issues involving possibilities of mootness at some point, they could dodge for mootnees. Then we never officially know what they think the law is, but … well… it’s only a $30 bet.
SteveF
But it’s normal for a court to rule even if it’s a case of “first impressions” with “sparse authority”. Not ruling would be the exceptions.
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They don’t rule if they decree it’s “not justiciable”, which is different altogether. If theys said not justiciable, I think Trump’s name would be off the ballot also. Then he could be appealing that ruling, arguing it is justiciable. (I think.)
This is all a case of first impressions means
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https://www.law.cornell.edu/wex/first_impression
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A court will almost always be making the first interpretation on a matter. So for those who say court “makes laws” they will always be making law in these cases.
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Yeah… there is no precedent. So they make the first one.
The most relevant definition of insurrection is:
“The act of rising against civil authority or governmental restraint; specifically, the armed resistance of a number of persons to the power of the state; incipient or limited rebellion.”
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The riot, complete with grandmothers, kids, and baby strollers, was anything but an armed resistance. To suggest it was means only that plenty of people have become disconnected from reality. There are many historical examples of insurrection; Jan 6, 2020 in Washington DC was not one of them.
Mike N,
“…and thus removing him from all states.”
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And, of course, that is not going to happen. A few people, including the majority of the Supreme Court, have the good sense needed to defuse the possibility of armed rebellion. (That is, the ACTUAL kind of armed rebellion, not January 6.) Mark my words: Trump will be on the ballot in all 50 states.
This could interfere with any bet about SCOTUS
https://www.nbcnews.com/politics/2024-election/colorado-gop-caucus-primary-trump-supreme-court-rcna130591
“Colorado GOP is discussing switching to a caucus if Trump remains off the primary ballot”
Okay, so I’m sorted out now. Colorado SC was ruling on appeal of a Colorado District court decision that found Trump was an insurrectionist. Got it.
Steve, I agree with you. I (a) doubt this was actually an insurrection and (b) question whether Trump’s constitutionally protected free speech at the rally makes him an insurrectionist.
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We will see!
I hope this doesn’t stand. It seems to me that private actors with deep pockets could use this precedent, if it stands, to effectively remove candidates from the ballot in the future. Fund organizations to infiltrate legitimate protests and commit ‘violent armed insurrection’. Wait for a candidate to speak publicly in support of a peaceful protest, and then trigger the operatives waiting at that protest. Pay for the subsequent lawfare in swing states.
Lucia,
If the crazies in Colorado think it is OK to remove Trump from the ballot in a primary, they will repeat the process for the general election. The SC is going to stop it. You don’t have to pay up if Colorado switches to a caucus and Trump gets on the ballot that way.
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But the SC will stop this insanity, one way or another.
lucia (Comment #227288): “I have no idea why you think it’s not up to the courts!”
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Because the issue of eligibility for the House and Senate have never been up to the courts.
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lucia: “if you don’t see why that’s a problem, then you don’t think the Constitution needs to be followed.”
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Wrong. I am in favor of following all of the Constitution.
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Addition: To repeat myself yet again: The issue is not the qualifications. The issue is who gets to decide if the qualifications are met.
To be in rebellion or insurrection against the US, one must first be declared so by a competent body. Only two bodies in the US can do so by the US Constitution and the Insurrection Act : Congress or the President.
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Trump was President the day events transpired. Trump did not declare himself In Rebellion or Insurrection.
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Congress debated, but failing Impeachment of the President, did not collectively find Trump in Rebellion or Insurrection.
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As Trump was not in a legal state of Rebellion or Insurrection, he is not liable for sanctions for such actions.
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SteveF
Of course they would repeat it for Trump at the general election! The only point of a caucus was to nominate Trump if that’s what CO voters wanted. The State doesn’t run a caucus.
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Mike M
Point to the SCOTUS ruling that says that. It doesn’t say so in the qualification clause. Section 3 doesn’t say Congress and the house enforces the disqualifcation either
They can vote to overturn the disqualification. They don’t vote to enforce it in the first place. It just exists with no vote from Congress.
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As for your notion “just don’t vote for [people who are disqualified]”:
The instruction “don’t vote for them” isn’t the solution to upholding the constitution if someone who cannot hold the office is elected and then just put in office. That people voted for them is the problem.
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We have a constitutional government. If legislation is passed that sets aside the first amendment, we don’t say “Well! That’s ok! Everyone was properly elected! Set aside the constitution! The people are sovereign! ” If we do that, we no longer have a constitutional form of government. Arguing about what the constitution says is irrelevant if, in the end, someone thinks it’s ok to violate it as long as that’s what the voting public wanted.
Ed Forbes
Well, that seems to be a new rule!
The insurrection act doesn’t say something is only an insurrection if Congress or the President says so. It says the president can deploy troops in the event of an insurrection. The insurrection exists before and whether or not the president deploys the troops!
lucia (Comment #227302): “Point to the SCOTUS ruling that says that.”
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Huh? There have been multiple cases where Article 1 qualifications have been at issue. I am pretty sure than none have ever gone to the courts. That is because there is no role for the courts. There is of course no SCOTUS ruling to that effect because none of the cases have gone to court.
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lucia: “The instruction “don’t vote for them” isn’t the solution to upholding the constitution if someone who cannot hold the office is elected and then just put in office. That people voted for them is the problem.”
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Yes, that would be a problem. No, my solution is not a very good one. It is just the least bad solution. SCOTUS is not sovereign. The people are sovereign.
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lucia: “If legislation is passed that sets aside the first amendment, we don’t say “Well! That’s ok! Everyone was properly elected! Set aside the constitution! The people are sovereign! ””
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Horrible example. The Constitution restricts the power of government. So it restrains Congress, the President, and the Courts.
Lucia,
Thank you for the explanation about first impressions. I suspect that my view of how courts ought to operate is overly conservative and possibly a little unrealistic now.
Uh-oh. Hassan v Colorado decision authored by Judge Neil Gorsuch of the Court of Appeals:
https://law.justia.com/cases/federal/appellate-courts/ca10/12-1190/12-1190-2012-09-04.html
Hassan wanted to be the presidential ballot (primary, I think) even though he was not a natural born citizen. The court upheld the right of the state to keep him off the ballot. One difference is that Hassan seems to have not disputed the fact that he was ineligible to be President.
https://millercenter.org/the-presidency/presidential-speeches/august-20-1866-message-proclaiming-end-insurrection-united
August 20, 1866: Message Proclaiming End to Insurrection in the United States what follows is a long list of proclamations made by congress declaring specific states to be in a state of insurrection against the United States. None were court of law issues. I find no cases of insurrection that were not first determined by congress, or the President in some cases, under emergency powers.
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Courts have no power to overturn congressional proclamations of insurrection and I found no law giving the courts power to declare one. Power to judge violations, yes, but only after an insurrection is declared by congress, or in some cases, the President.
MikeM
“None have ever gone to courts” is not a rule.
no constitutional provision that reflects a textually demonstrable commitment to Congress of the authority to assess presidential candidate qualifications. Conversely, the Constitution commits certain authority concerning presidential elections to the states and in no way precludes the states from exercising authority to assess the qualifications of presidential candidates
Even though Trump’s lawyers dropped the “it’s up to congress” argument on appeal– (they made it earlier), the CO rulling addresses that argument (to be thorough).
So basically: (a) that “rule” is made up and (b) the constitution gives states authority to do things– and does not preclude assessing candidates qualifications. It continues.
I thins this is certainly more convincing that something like “no one has done this before”. And they continue. But you can go read it at
https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf I’ve given you plenty for a word search to find teh question.
Lucia “The insurrection exists before and whether or not the president deploys the troops!”
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No… there is no insurrection unless Congress or the President declares one. You can not go to court and press for action against an insurrection unless either the congress or the President declares one exists.
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Insurrection is more of a political issue than a legal issue.
Ed Forbes
Uhmmm… So these things existed only after Congress and the President “determined” their existence. I think you have things a little backwards. They determined an insurrection was happening after it started.
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And beyond that: if you look for a list of things Congress and the President “determined” to be insurrections, you’ll find thigns they “determined” to be insurrections. Not making a determination doesn’t make something not exist or be.
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No one is trying to overturn a proclamation of an insurrection.
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I really don’t think SCOTUS is going to buy your argument. Even Trump’s lawyers aren’t making that argument.
I think you have already lost the bet, Lucia. See the excerpt I posted above. It looks like Supreme Court dodges with Trump on the ballot. Looks like Trump goes back on just by seeking an appeal, even if Supreme Court doesn’t take the appeal.
Mark bofill,
The thing is, if lower courts did not rule on cases of first impression, they either one couldn’t have any ruling or all of these would get bumped to a Supreme Court immediately. SCOTUS would be swamped. So they do rule.
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Rulings on cases of first impresses make the first entry into case law. If appealed these might be upheld or over ruled. If not appealed, later judges can look at them and decide if they are binding or not– and agree or not.
MikeN
What did you read?
But yes: If the court dodges with Trump on the ballot, I lose. But it might not happen. I think this:
* if Trump appeals and the first Federal court doesn’t reinstitute the stay he will not be on the ballot. (I think that’s the way the stay works.) Then he might continue his appeal (probably will)…. and if SCOTUS dodges that (even for mootness), I say I win.
* if Trump appeals and the first Federal court does reinstitute the stay he will be on the ballot. Then the CO Electors might (probably will) appeal…. and if SCOTUS dodges that (even for mootness), I say I win.
MikeN
Oh.. Yeah, I did misinterpret.
Ok…. so the only way I win is if Trump appeals and SCOTUS sends an order or mandate. They way I wrote the bet, if they dodge….. I lose…
I guess SteveF and I need to discuss whether he feels comfortable winning if all they do is “dodge”. (It”s $30. I don’t mind sending SteveF $30 for win if they dodge. I hope the don’t dodge– but they do often do that. And I think it’s fair enough. If they really think he belongs off, they probably won’t dodge.)
Lucia “They determined an insurrection was happening after it started”
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True….but unless it is “proclaimed” by either congress or the President, the court has no authority to adjudicate violations of laws regarding “insurrection”.
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I can see a number of instances where actions are taken that would meet some test for “insurrection”, but where politically neither congress or the President would want to escalate the situation by so declaring an insurrection.
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Political, not legal, issues dominate.
Ed Forbes
You’re just making stuff up here. They are allowed to observe whether something was a an insurrection and whether someone engaged in it under the 14th amendement. Nothing prohibits them from doing so.
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They aren’t allowed to adjudicate violations under the insurrection act. But they aren’t adjudicating anything under the insurrection act. That’s not what authorizes CO to make rules about selecting electors and CO makes no such claim!
Of course they are making a claim of insurrection. Without insurrection, they have no case to remove Trump from the ballot.
Lucia, by your logic, anyone can go to court against about any person or organization on a charge of insurrection, regardless of either Congress or the President’s views of the matter. The bar is pretty low on what is required.
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The congress and the President can both bring action under the insurrection Act under very little restraint. Any demonstration that turns violent can be charged under the act. There is a reason the authority to determine if someone is in a state of insurrection is NOT granted to the courts.
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On the Insurrection Act
https://www.brennancenter.org/our-work/research-reports/insurrection-act-explained
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“Who decides when the conditions for deployment have been met?
Nothing in the text of the Insurrection Act defines “insurrection,” “rebellion,” “domestic violence,” or any of the other key terms used in setting forth the prerequisites for deployment. Absent statutory guidance, the Supreme Court decided early on that this question is for the president alone to decide. In the 1827 case Martin v. Mott, the Court ruled that “the authority to decide whether [an exigency requiring the militia to be called out] has arisen belongs exclusively to the President, and . . . his decision is conclusive upon all other persons.”
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The second part of Section 253 permits the president to deploy troops to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” in a state that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” This provision is so bafflingly broad that it cannot possibly mean what it says, or else it authorizes the president to use the military against any two people conspiring to break federal law.”
Ed Forbes,
Huh? No. I’m “anyone”. I can’t go to court and charge someone with murder. You’re really stretching here.
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But the main place you are confused is that CO did not invoke the insurrection act. Telling us it can’t is pointless. Because the insurrection act has nothing to do with this case.
Ed Forbes: Is this the act you are talking about?
https://policy.defense.gov/portals/11/documents/hdasa/references/insurrection_act.pdf
(The above is actually called the insurrection act.)
Or do you mean this
https://www.law.cornell.edu/uscode/text/18/2383
Ed,
The CO case has nothing to do with deciding when the president can deploy troops!!!
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I don’t know how you’ve managed to get so confused on this.
This is the problem if SCOTUS dodges:
That’s why I hope SCOTUS doesn’t dodge. This underlying issue can’t be dodged: Is Trump qualified?
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If Trump is on the ballot, there is a very high probability of a Dem-majority will say he is not qualified. That’s way more destabilizing at that point that anything happening earlier.
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He would, of course, try to appeal to the courts. His argument would then be Congress can’t refuse to seat him! I mean… this is not someone who will see himself bound by any sort of consistency in interpreting the constitution. Any argumeng du jour will do.
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Much better to deal with this now.
Lucia,
You’re right. Viewed from that perspective, if SCOTUS deals with it, yes. The sooner this is sorted out the better. If Trump is in fact ineligible, this should be established while the parties still have time to react.
Lucia,
We can hold off if all they do is dodge the question. A moot declaration after the election makes any bet, well, moot. 😉
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I suggest nothing happens in the wine market without an actual ruling on the substance. I think there is a chance the majority on the court will want to inhibit other states from doing the same, and that would require a ruling to be issued quickly.
https://www.bbc.com/news/world-europe-67787173?at_medium=RSS&at_campaign=KARANGA
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My guess is that most 25 to 60 YO Ukrainian men living elsewhere refuse the ‘invitation’, ‘honor’, or whatever it is called.
There are probably about 100,000 Ukrainian born men in the USA between 25 and 60 YO. Maybe the Biden administration could start deporting some. Very Bidenesque (AKA ‘you WILL do what we say!’), but it probably won’t fly.
SteveF,
I seem to remember an observation of yours that the WAPO was just barely adequate for wrapping fish. Today might be good day to unwrap the fish and read a Ruth Marcus column which I think agrees with all of us of the imprudence of the Supremes allowing the Colorado decision to stand.
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And as to whether “Nuts” has any credibility as a term of art in US jurisprudence, I submit that in the judicial convulsions we are witnessing today, it has very frequent application.
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Inability to touch type allows me to be equally clumsy on the little keyboard I bought to better communicate on my Amazon fire 8 – sort of sounds like an early 50’s DeSoto.
Cheers from Santiago, Chile where the police raided the array of street vendors in front of the hotel last night seeking the un-licensed which apparently included most of them. It was amazing. They all took up their offerings in blankets, then carried over their shoulders as they ran in every direction yelling loudly.
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Just as was reported in Peru, there is a huge Venezuelan influx here and apparently unlike Peru where the government seems to have found ways for them to support themselves, it look like unlicensed street vending is the “solution” at least here in Santiago
SteveF
If all the Ukrainian born men left, it might kill the ballroom dance industry! 🙂
No, they aren’t all going to rush back. Some, like my dance teacher have already naturalized. Others haven’t. Obviously, the once who arrived after the Russians invaded haven’t naturalized. I suspect nearly all of them intend to.
The Venezuelan influx into Peru has caused chaos. Peru has a large informal economy which the Venezuelan’s can slot into. They support themselves by competing with the locals, protection rackets, thuggery and murder. My wife’s brother drives a motor taxi. A few have been shot and killed for their efforts to make a living. He pays “protection” money… As usual, it is the bottom of society that suffers the most.
john ferguson,
I think my comments on fish gut-wrapping were always in reference to the NYTs. I will try to find the WaPo column.
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Stay safe in S America.
Lucia:
Good points. However, I don’t think “officer” means “officer of the court”. I think it means an appointed official, rather than an elected one. So if a cabinet official committed insurrection, it would apply – because they are an officer. Ditto for military types.
If the drafters of the 14th amendment had wanted it to apply to the President (instead of to the electors of the President) – it would have specifically called the President out.
But obviously that is just an opinion and we will have to wait until the Supreme Court tells us what “officer” means in the 14th amendment.
Should be fun to watch!
Thanks DavidJR,
Your very believable note reminds me that national pride often prevents the locals from telling an outsider what’s really going on.
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I asked in a couple f different ways in Peru how they were dealing with the Venezuelans and got the answer I reported above, but I felt our host was resisting telling us what he really thought.
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travei is tricky. My mother who really did travel the world in the 70s and 80s was convinced that english was spoken everywhere. She never grasped that she took only tours and I suspect neveer came near an unafilliated cvilian.
john ferguson,
I read the column. I agree with its conclusion, but disagree in part with the argument.
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She is searching for a way to preserve the WaPo “narrative” (and she uses that word) that Trump took part in an “insurrection”, while I think that narrative is laughable on its face. Grandmothers with baby strollers in Washington DC do not amount to an “insurrection”; an insurrection with kids but no guns? Just stupid.
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I am pretty sure the court will rule against Colorado on multiple grounds, but including that the Colorado laws are patently unconstitutional because they lack due process: they are based on judges (not juries) determining the “guilt” of the accused. Even the mad-dog Federal prosecutor that has filed multiple criminal charges against Trump had the sense to not throw in some irrational “insurrection” charge.
“Bah Humbug!” Has been replaced by “Happy Holidays!”
Christmas is a Holy Day. The English term ‘Christmas’ dates back 1,000 years and celebrating it on December 25 dates back 2,000 years. In today’s cancel culture, the wokies have found a way to express disdain for tradition and to spit in the eye of their Christian acquaintances by wishing them “Happy Holidays”. “Merry Christmas” is how I want to be greeted.
Another joyous day insulted by the wokies is Hanukkah. “Happy Hanukkah” is a perfectly acceptable greeting this time of year. Hanukkah is a tradition that dates back even further than Christmas
RickA
If SCOTUS takes the case, we’ll see if they agree with you. 🙂
There was historical discussions. And the discussion indicates they thought the word President wasn’t necessary because he was obviously included. (I need to see if this is in the CO ruling or in a blog post I read recently. I haven’t read tons– so I’ll go hunt.)
john ferguson,
“She never grasped that she took only tours and I suspect neveer came near an unafilliated cvilian.”
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Yup. People who travel within the protective cocoon of a planned tour have near-zero interaction with the real culture of the places they visit… language and otherwise. I see Chinese tourists groups all over Europe and the USA who never leave the travel group they are in…. all wearing the same brightly colored tee-shirts to keep track of who is in the tour group, with the tour guide screaming Chinese while holding a tall placard over head so nobody gets lost. The guide often sounds to me like a cat being run over by an 18 wheeler. I’d rather stay home.
Rick A,
I had to hunt. This is from https://reason.com/volokh/2023/09/16/why-president-trump-is-an-officer-who-can-be-disqualified-from-holding-public-office-under-section-3-of-the-14th-amendment/
Ilya’s quote summarizes.
The “here” go to links
https://balkin.blogspot.com/2023/09/section-three-of-and-under-nonsense.html
https://www.lawfaremedia.org/article/disqualification-office-donald-trump-v-39th-congress
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Both by Balkin. Those have more detail.
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Balkin did a search on usage
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That doesn’t give examples (and of course, no one is going to give all the examples.) The lawfare link (also Balkin) does give specific examples.I’ve highligheted the specific ones. (Otherwise, we just have “lots of congress critters said” type statements. It’s always nice to see someone who makes that claim give actual examples:
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So: as far as the people writing the 14th amendment went, they consider “officers” to included elected official, the chief executive officer of the United states and considered the Presidency an “office”.
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(This isn’t the quote in my memory though– I still haven’t found the one that was “conversation” about chanting the wording from a statute. There is actual discussion because someone “worried” it didn’t cover the President — which he though it should– and someone else pretty much telling him “it obviosyly does”. And then “oh. Ok. I see your point”. But I’m sure you’d like to see that– but hunting for specific things… not always easy. And maybe I mis-remember. I think Balkin is pretty convincing here and that’s enough.)
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If this is taken up by SCOTUS, I’m sure someone will submit a friend of the court brief outlining this sort of thing.
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We don’t know what SCOTUS will then decide about this argument. But I think it’s pretty unlikely they will buy the notion the President is not an officer of the court. (And this is not withstanding the one quote from Roberts. He is… well.. let’s face it…. flexible. And it’s easy enough for him to say “the context was “we were discussing a specific group of officers who were not elected.” Less dramatic clarifications have occurred in the past with no evident embarrasement on the part of SCOTUS authors. )
Wow – thanks for looking all that up. I was rereading the reason article https://reason.com/volokh/2021/01/20/is-the-president-an-officer-of-the-united-states-for-purposes-of-section-3-of-the-fourteenth-amendment/ again and found this section particularly interesting:
There is a recent Supreme Court opinion discussing the scope of the Constitution’s “Officers of the United States”-language. In Free Enter. Fund v. Pub. Co. Accounting Oversight Bd. (2010), Chief Justice Roberts observed that “[t]he people do not vote for the ‘Officers of the United States.'” Rather, “officers of the United States” are appointed exclusively pursuant to Article II, Section 2 procedures. It follows that the President, who is an elected official, is not an “officer of the United States.”
So we know what Justice Roberts thinks – but that is just one vote. I am sure this will be extensively briefed and argued when the case is considered by the court.
Oops – rereading your post and see you already addressed the Roberts quote. Sorry about that. Yes – it is a wait and see situation for sure.
RickA
We know what he wrote in that context. He may now think “Oh. I meant these— the ones listed in Article II, Section . (If you get a fuller quote, you can see the issue. )
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He may think that term means that in all contexts or just that one. SCOTUS has been know to “clarify” context in the past. Besides that, many have groused about Roberts lack of consistency of interpretation. So….. We’ll see.
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Lucia,
Yes, Roberts is remarkably ‘flexible’ in his ‘beliefs’ (which seems to me a nice way of saying “he holds no sincere principles”), especially when he wants to get a unanimous or near-unanimous decision from the court. That said, his wording was so explicit that I think it will be hard for him to actually do an about-face on this question. Of course, Roberts has left me slack-jawed many times, but I doubt this will be one of them. Much will depend on how strongly the other 5 conservatives feel about stating the several grounds on which the CO ruling can be struck.
lucia (Comment #227338),
I don’t find Somin’s article at all convincing, chiefly because he does not explain why Senators, Representatives, and Electors are specifically named but the President is not. Those are often referred to, at least informally, as offices. So why list them? Maybe because they are the most important, but then President should surely be listed. Maybe because elected offices don’t qualify as offices under the United States, but then the President is excluded.
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The core of Somin’s argument is that excluding the president is unreasonable. That seems to be most succinctly stated when he writes:
That strikes me as a very dangerous attitude. I don’t see how it differs in principle (although it differs enormously in degree) from what they do in Iran, where you can’t run for office unless the mullahs approve.
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The alternative is to recognize that the 14th Amendment is basically an abrogation of States Rights as they were viewed by many prior to the Civil War. Since the President is chosen by the nation as a whole, there was no need to include that office.
Mike M,
For what it is worth, I found Somin’s argument completely unconvincing. I kind of doubt Somin is especially able to divine the intent of people writing the 14th in 1866 (or was it 1867?).
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I expect the SC will explain in some detail why Somin is mistaken….. unless they punt and refuse to rule until after the 2024 election (which remains a real possibility), then declare the case moot. The Colorado SC was the first instance of a state court barring Trump from a ballot… other efforts have been rejected in other states.
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Since the Colorado ruling is automatically stayed if Trump appeals (a certainty), maybe the SC justices will cross their fingers and hope no more states jump on the Colorado band wagon, and avoid a messy fight with between the justices. OTOH, I doubt that will please the conservatives on the Court, and they are in the majority, so can insist on hearing the case and issuing a ruling if they want; neither Roberts nor the three liberals can stop that.
There might be another angle to overturn the CO decision. SCOTUS has often, but not always, held that restrictions on ballot access should be subject to strict scrutiny. A law that allows officials to kick someone off the ballot because they have an *opinion* that the candidate is not eligible might not survive such scrutiny. Such a law could conceivably result in officials blocking Obama from the ballot if they bought the birther nonsense and or blocking McCain because he was not born in the USA. No compelling state interest is served by giving election officials such broad discretion.
Mike M,
i agree with what you’ve written above and it is why I think what the Colorado court did was “nuts.”
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After the civil war, people who had sworn allegiance to the US nd subsequently supported the Confederacy would not have been difficult had their support been even moderately conspicuous, but just because I think Trump supported the “insurrection” doesn’t mean that anyone else will, or that a court would. Had it been obvious, conspicuous, and indisputable, it would have been very like 18**, but it wasn’t and isn’t and even many of the wild-eyed lefties can see it.
MikeM
The colorodo ruling did (see above.) Congress critter and so on isn’t “an office”. So they are sometimes considered “members” of their representative bodies. The presidency, governors etc are offices, so their occupants are ‘offices’.
When discussing charging under law, several steps need to be taken. Some of these steps are covered below.
what is the actual text of the law in question
What is the general purpose of the law in question
Who has the authority to charge actions under the law
What actions are needed to have been committed to charge actions covered by the law
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See below for the text of the Insurrection Act
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For charging that Trump is guilty of insurrection, one must define the acts committed and the law that defines such acts as in violation of such laws.
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The law Trump is charged with violating that led to the CO Supreme Court’s banning Trump from the ballot is the Insurrection Act. If Trump is guilty of Insurrection, then he can barred from the ballot if he is indeed an “officer” as defined in the constitution.
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To activate sanctions under the Act, “..Section 254, meanwhile, requires the President to issue a “proclamation” that “immediately order[s] the insurgent to disperse and retire peaceably to their abodes within a limited time” whenever he or she wishes to rely on these authorities. And § 255 defines “state” for the purposes of the above to include Guam and the Virgin Islands..”
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No such “proclamation” was issued by the President on Jan 6, so the act was not activated. Without such “proclamation”, one cannot be charged under this Act.
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The overriding reason for the Act was to allow the President to call up and use federal troops against internal strife.
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The Insurrection Act
Originally enacted in 1807, the Insurrection Act is the primary law defining when the president may deploy regular military and National Guard forces to suppress domestic unrest. Amended twice during and after the Civil War to address rebellions and allow for the enforcement of civil rights over state objections, it is now codified at 10 U.S.C. §§ 251-255 and provides three sets of authorizations:
§ [§251]“WheneverthereisaninsurrectioninanyStateagainstitsgovernment,thePresident may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.”
§ [§252]“WheneverthePresidentconsidersthatunlawfulobstructions,combinations,or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”
§ [§253]“ThePresident,byusingthemilitiaorthearmedforces,orboth,orbyanyothermeans, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.”
Section 254, meanwhile, requires the President to issue a “proclamation” that “immediately order[s] the insurgent to disperse and retire peaceably to their abodes within a limited time” whenever he or she wishes to rely on these authorities. And § 255 defines “state” for the purposes of the above to include Guam and the Virgin Islands.
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https://www.brookings.edu/wp-content/uploads/2020/12/ReferenceSheet_InsurrectionActAndRelatedAuthorities.pdf
Told ya this was coming:
“Rudy Giuliani files for bankruptcy”
Next, Fani Willis will tighten the screws on the Georgia RICO case, Rudy will plead guilty to a lesser charge and agree to testify against Trump.
This RICO law is diabolical in the hands of an unjust prosecutor.
Politico:
“The filing comes days after Giuliani, 79, was ordered to pay $148 million in damages to two former Georgia election workers”
“The former mayor owes close to $1 million in state and federal taxes and owes millions to several law firms, including $1.36 million to Davidoff Hutcher & Citron LLP, the law firm where Giuliani’s longtime lawyer Robert Costello works. Costello is suing Giuliani for unpaid bills.”
He evan has welched on paying his attorney! https://www.politico.com/news/2023/12/21/rudy-giuliani-files-bankruptcy-00132899
Ed,
I believe the Court actually found Trump ineligible to run under the 14’th amendment, section 3. I don’t think the Insurrection Act played any role in their decision.
https://www.usatoday.com/story/news/politics/elections/2023/12/20/what-is-14th-amendment-section-3/71983754007/
If your argument is that in order to be guilty of insurrection that one must specifically violate the Insurrection Act, .. I don’t think so.
[Edit: Insurrection is older than the insurrection act. It has often been a crime throughout history.]
“The Insurrection Act” is the name of an act. It is not the legal definition of insurrection. I mean, we wouldn’t say ‘the Inflation Reduction Act’ reduced inflation by definition, it didn’t..
lucia (Comment #227347): “Congress critter and so on isn’t “an office”.”
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Article II, Section 1, Clause 6:
The speaker of the House and president pro tempore of the Senate are in the line of succession, so some significant number of people think they are “officers”. That was also true in the first succession act, passed in 1792 and still in effect in 1866 when the 14th Amendment was drafted.
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Of course, there are also those who say the current succession act (and the 1792 version) is unconstitutional because Congress critters are not officers. James Madison seems to have been one such. It is not clear which side is correct.
mark bofill,
I think if we were to believe Ed theory, a president he could arm himself like Rambo, lead a bunch of armed followers into the Congress, take everyone else hostage, hold them there for a week, force them to vote for a bill authorizing whatever he wants, and then, by merely not considering this an insurrection, not invoking the insurrection act and not telling his group to disperse he would not be guilty of insurrection!
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Of course, the theory that it’s not an insurrection unless the President does those things is wrong.
MikeM
Sure. But that still would leave out a whole bunch of other Senators and Congress critters because Senator and Congress critter is not an office in and of itself. That there maybe a few select ones who are officers doesn’t change that.
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Balkin points out that it is the usage at the time the 14th amendment was written that matters. But regardless, the CO ruling says those people are members. So they at least might not be officers. That’s why they need to be listed specifically since usage at the time of drafting the 14th amendment and even previously did not consider most of them “officers”. Meanwhile, they did consider the president an “officer”.
Lucia, you come up with the most vivid illustrating examples sometimes. 🙂 Thanks!
I think Samour’s dissent will be adopted by the Supreme Court if they take the case.
He argues it is not self-executing, based on a case decided in 1869, Griffin, and that only Congress can act.
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Congress then passed the Enforcement Act in 1870, providing criminal penalties for anyone holding office in violation, and allowing for civil action by individuals(I thought this was a 90s invention with the Clean Air Act).
The civil portion was repealed in 1940.
The remainder is still in effect as 18USC2383.
https://www.law.cornell.edu/uscode/text/18/2383
“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
MikeN
Maybe. Of the three dissents it’s the important one. The others are interpretation of CO law. SCOTUS rarely sets aside state supreme court’s interpretations of what state law means.
Griffins case appears to be here
https://www.jstor.org/stable/3303523?seq=2
There is a lot in the Griffin case. But I think it doesn’t do quite as much as those who want to throw over the CO ruling might like. For brevity, (and because the document is a pain to cut and paste) I’ll only post the last paragraph
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My understanding of the reasoning is.
(a) Maybe the 14th disqualifies the Judge as Griffin alleges.
(b) The judge has not actually been removed, so he was still a judge de facto (even if not de jure).
(c) Even if he is disqualified de jury, his rulings still stand.
(d) So, for this case, we don’t need to figure out if the judge\ is disqualified– we only need to figure out that no one has enforced that disqualification and, as a practical matter, he is acting as a judge.
(e) His ruling stands. Send the guy to jail.
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Earlier Chase gives an illustrative example explaining that if someone had been sworn in as President or Senator despite being disqualified, their acts while seated would still stand.
Since this ruling is about trying to reverse the judge’s acts — not really about unseating him– the judgement is kept in place.
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As for whether he can be unseated because of the 14th amendment the ruling basically says: We don’t need to figure this out. But we know he wasn’t already unseated when he made his ruling.
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It seems to me the ruling would be relevant if Trump was reelected and sworn in, and then someone sued to set aside all his acts during the term. The answer would be that until someone has actually booted him out, his acts would stand.
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But here, CO is moving to keep Trump off the ballot– which is a different question. And if someone with standing sued to enforce the disqualification from office, that’s not the same as reversing any of Trump’s acts in office. To enforce the disqualification requires actions to enforce the disqualifcation– but that’s what CO is trying to do.
I downloaded to my mac. I can cut and paste more easily. (The ends of sentences would get chopped off when I tried to cut from the version on the web.
Basically: The guy might be disqualified. But he was not removed. So he was a judge de facto (even if not de jure). The Supreme Court says judgements by de facto judges stand even if they are not de jure.
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All the other discussion relates not to whether the disqualification applied but whether removal was automatic. We can tell he wasn’t removed. We aren’t going to spend time figuring out if he was disqualified because that’s irrelevant to the ruling.
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In contrast the question with Trump is “is he disqualified”. This case doesn’t address that! Seems weird…. But that’s the situation.
mark
Vivid is sometimes required.
just checking if I can post on this computer
Lesson learnt, post on the right computer.
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There are two different concepts at play.
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Insurrection is an act of overturning the government usually by illegal and forceful means.
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Hence overturning a Democratic Government at the ballot box, AKA an election, is not an insurrection.
The Government is changed but in a fashion dictated by the laws of that Democracy.
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On Jan 6th two different issues were at play.
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One was a protest.
Encouraged by Trump and others who called for a protest at what they saw was an insurrection.
That is the election of the other side by rigging the voting.
Now protests can involve violence, eg Vietnam War Black Lives Matter but they are not a planned overthrow of a Government.
They are a call for attention about an issue.
A protest is not and cannot be an insurrection of itself.
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Secondly there was an attempt to use the legal laws of the land to both to halt the declaration of the outcome of the election until the question of its legality was resolved.
And an attempt to use the states themselves where Trump had lost to use their powers to decide if the elections had been rigged and if so to give the states to nominate their own electoral college voters.
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No one was doing this illegally. The threads of the narrative may have been sketchy and far fetched but not illegal.
It was not a planned act of insurrection as it was lawyers attempting a legal solution.
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The true acts of Insurrection have been Democrat and other led attempts to illegally use the courts to stop the possible election of person who does not follow the swamp rules.
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Now Lucia said “I dislike Trump….”
like 50% or more people at the last election.
” can’t say I mind him off the ballot as a thing.”
As an American who supports Democracy I think you should reconsider what it means to prevent people whom you do not like from being on a ballot.
If you believe in Democracy as a principle you cannot have him of the ballot “as a thing”. Dislike him as much as you want but support his right to be on the ballot as the right and just thing.
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“I have no idea whether the legality is correct or not.”
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In a legal sense that is true, in a moral or ethical sense the idea is that it is legally incorrect, sorry for seeming to lecture.
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” I’m sure there will be further law suits.”
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True words.
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“I’m still interested in what people think of as pros and cons.”
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Steve F put up the best cons over a year ago.
Something like “Law suits will amplify and solidify Trump if they do not work. Ultimately it will lead to Trump being the Republican Candidate and losing ensuring 4 more wasted years.
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I can argue the points more clearly if needed but basically there is no correct legal for calling Jan 6th an insurrection.
Lucia “I think if we were to believe Ed theory, a president he could arm himself like Rambo”
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Trump was the President. He had the entire US military and state National Guard at his sole control by only declaring his enemies in a state of insurrection.
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Rambo could only dream of the amount of firepower the US President can bring forward with a simple declaration.
The only instance I have found that could remotely bring a legal charge of insurrection is if one has been charged with refusing to disperse after a presidential declaration of insurrection. And that is VERY problematic.
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The legal system is big on definitions. Law with undefined legal terms get tossed on a regular basis.
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18 U.S. Code § 2383 – Rebellion or insurrection
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
(June 25, 1948, ch. 645, 62 Stat. 808; Pub. L. 103–322, title XXXIII, §?330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)
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Alan Dershowitz
“We don’t even know what an insurrection is! He hasn’t been charged with insurrection, he hasn’t been convicted of insurrection.
Ed,
You are so far off base it’s a waste of time to engage.
lucia,
The reason that Griffin’s Case is important for the Trump case is because of what Chief Justice Chase said about Section 3 not being self-executing:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4568771
Quote from the downloaded PDF file.
lucia,
The relevant text in the Griffin decision can be found in your Comment #227358 link. It is pages 8 and 9, starting in the paragraph beginning “The object of the Amendment is to exclude …”.
MikeM,
Set in the totallity of the reasoning,
(a) The object was to exclude
(b) The exclusion had not yet been enforced.
(c) Because it wasn’t enforced, the guy was a judge de-factor.
Once he was a judge defacto, his rulings stand.
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Sure, a circuit judge in a non-binding ruling also thought Congress was the one to enforce it. But that doesn’t have to stand.
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SCOTUS may hark back to this. They may ignore it. But they didn’t say he wasn’t disqualified. No one had acted to enforce the disqualification– so his ruling stands.
Mark –
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> Maybe so. I wasn’t arguing so much that Colorado acted illegally as that Colorado acted in a dumb and possibly counterproductive manner.
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I didn’t read all the subsequent comments (there are a lot of them) and I don’t know if you later clarified, but…
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Given the lower court ruling, I’m not sure whether or how much the CO Supreme Court should consider or speculate about subsequent outcomes when making their ruling.
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I don’t buy arguments that the question fits with a dichotomous frame,.
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I think they should not rule either on the basis of some theoretically pure legal interpretation of “the text,” nor on the basis of presumed counterfactuals, but on some carefully considered attempt at balance between those two theoretical objectives.
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We can assume that the majority on the CO Supreme Court ruled merely on a stupidly reasoned political preference, thinking that somehow their ruling on this will prevent Trump from getting elected. But that doesn’t seem very likely to me. First I doubt that they would match with such a cartoonish depiction – and that none of them would have any legal integrity. Second, even if they did, they’d have to be awfully dumb to think that their ruling would have such a clear and unambiguous impact from a political perspective.
Gorsuch’s previous rulings on the 14th amendment is an interesting wrinkle. That the CO Supreme Court referenced his rulings might make his justification for a SCOTUS ruling quite a feat of acrobatics.
Joshua,
No, I didn’t mean to imply I thought they openly and self consciously / with full awareness had no integrity and were thus in a cartoonish way ruling on politics. But you know as well as anyone and maybe better than most the many many ways bias colors decisions and people are often completely unaware of it. I’m sure they thought they were making the hard choice, with integrity, for the good of the country, blah blah blah. I imagine Trump thinks that too about his every moronic social media post.
But FWIW, I have changed my opinion. I agree with Lucia that it is actually a good thing that this has come up now, in a somewhat timely matter, so the SCOTUS has a chance to nail this down whichever way it needs to get nailed down. Either way is better than leaving it open ended IMO; waiting would tend to be more destabilizing.
Joshua,
In light of that, maybe they in fact were acting in the best long term interests of the country. As I mentioned to Lucia above, I realize I have a somewhat flawed mental model of how courts ought to operate.
Joshua/MikeM
Joshua’s note had be scanning back on Gorsuch
Yeah… now I have to go back and read more. 🙂
Joshua,
The four judges that voted to exclude Trump from the CO ballot were all from Ivy league schools, the other three were not. Coincidence? Maybe, but more likely they hold political views more aligned with the common (elite) political views at Ivys.
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“….they’d have to be awfully dumb to think that their ruling would have such a clear and unambiguous impact from a political perspective.”
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I think you have hit on the correct explanation, although I think ‘foolish’ is probably a better adjective than dumb; they went to Ivys after all.
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The SC can choose to do nothing for many months, and Trump will remain on the ballot in Colorado. An automatic stay was included in the ruling should Trump appeal to the SC, and of course he will, which indicates that at least one of the four crazies recognized the danger in their ruling, and that they will likely be overruled.
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But I doubt the SC will do nothing, since the CO decision is so potentially destructive; most likely they will issue an opinion, and almost certainly will if another blue state decides to exclude Trump from the ballot.
Mercifully Hassan v. Colorado was short
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Notably, though Trump’s lawyers advanced a mega-sh*t ton of theories, they did not advance the theory that even if he was disqualified, he could still be on the ballot. Nor did they advance the notion that CO make rules about who can be on the ballot. The response to those were pre-ordained, but would have added yet another paragraph to CO’s ruling.
Lucia,
And if a Chinese citizen, born in China, wanted to be a candidate for president of the USA, that would also be blocked in every state.
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If an opinion issues from the SC (and it is not certain it will), I predict Gorsuch will agree that Trump has to stay on the ballot.
Mark -.
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Sorry, I didn’t mean to suggest you were operating from that cartoonist conceptualization.
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I’m more just getting at how at some level, they can’t just think only of the political ramifications of their ruling.
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In part it’s a referred reaction on my part to people on “my side” who criticize the ruling as politically disastrous, based on an assumption that the majority in the CO Supreme Court are political idiots and can’t realize how this ruling might backfire and benefit Trump. I mean sure, it’s possible that they only care about the optical angle and are too stupid to realize that it may net a counterproductive result, but such an explanation just doesn’t seem likely to me at multiple levels.
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My first reaction was that it was unlikely to be based on legal jurisprudence that would stand up to a majority rightwing SCOTUS. But who knows? Some findings by SCOTUS recently have gone against conventional wisdom to some extent and like I said, Gorsuch’s previous rulings would at least make his reasoning less than straightforward. It’s an interesting question as to whether all these kinds of findings, whether by SCOTUS or other courts, can be uniformly predicted by a political algorithm. I’ve seen some stuff to suggest that’s not the case, at least across a full range of decisions if not necessarily with a smaller set of decisions with a high political weight. I tend to think that political bias would necessarily explain judicial rulings but I think the evidence shows I have a tendency to “overfit” there.
mark bofill,
The CO ruling does not require the SC to do anything for Trump to remain on the CO ballot, so they may choose to do nothing. Should another state exclude Trump (without the automatic stay on appeal), I think the SC will be forced to issue a stay, if only to bring the direct judicial interference in elective politics to an end.
Joshua,
Fair enough.
Steve,
Yeah. I missed that earlier, but yeah. I hope SCOTUS cho[o]ses to cauterize this rather than leaving it to fester.
SteveF
I don’t think it indicates they think it likely they will be overruled. I know you don’t like the outcome, or the fact of kicking off a candidate. But the ruling is well reasoned. Just not liking the outcome isn’t a legal argument.
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I do think they recognize the importance of this ruling.
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They also know that if we don’t get clarity on this soon we may very well get it later. And having this go to the Supreme Court after an election will be even more dangerous.
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We actually do need SCOTUS to speak on this.
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(I’m also a bit mystified at who precisely did the “crazy” thing in CO and when. Was it the legislature writing law prohibiting disqualified people can’t be on the ballot back in 1992? And setting up a process (i.e. granting “due” process) for lodging a complaint? (Anyone can lodge a complaint explaining why they think someone is disqualified by federal law.) Allowing the aspiring cadidate a hearing where they can present evidence one way or the other? And after the hearing and decision, permitting the person kicked off the ballot the right to go to the courts? And having the judges weigh the law?
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I get you don’t like the result but I don’t see where the “crazy” part comes in. There are very real questions about whether Trump is disqualified– but someone needs to interpret that. And interpretation of law generally falls to the court. There really isn’t any principle that exclude the courts or States from doing it in this case. Some people don’t like that idea, but the claim they can’t is very, very, very thin. Nothing in the constitution says they can’t.
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There may be a very real question about due process. Was the abbreviated process in the CO law long enough given the complexity of the question> (This is Justice Samours issue.) But once again, the Courts are the once to weigh that. So that should fall to SCOTUS.
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None of that CO law was written with Trump in mind. The law was in place. It certainly wouldn’t have seemed “crazy” to make the law back in 1992. This was sort of a “natural” result of what are, as far as I can tell a bunch of decisions that individually are not remotely crazy.
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The outcome of taking someone off the ballot is a bit unsettling. But, of course, that is the whole point of rule disqualification some people. The outcome of not seating someone who won the election is even more unsettling– but once again, that’s the whole point of rule disqualifying some people.
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mark,
The exclusion of Trump based on what a few judges think is so obviously a progressive wet dream that that it would be quite funny were it not so corrosive to the rule of law and so politically divisive.
Lucia,
I have my own answer to what I think was crazy about the decision, but I’ll defer since you asked Steve.
Mark –
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My thinking was that at some level, the ruling of the lower court that Trump engaged in an insurrection compelled the CO Supremes to issue a ruling on this.
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I’m pretty skeptical of the idea that Trump engaged in an insurrection, but I also don’t think it’s just a flat out ridiculous idea. It’s problematic that a sitting president actively lobbied against certifying ballots that went against his candidacy. His potential incitement of violence against Pence and his lack of response to a real threat of violence at the Capital (and his throwing Pence under the bus with a violent crowd at the Capital) are problematic. I don’t know enough about the legal issues in play to really say. But if someone were convinced that there’s real legal issue involved in the insurrection angle, I’m not sure how the CO Supreme Court could just be expected to categorically rule out the idea that CO has a legal interest in restricting its ballot. Say the issue of whether Trump engaged in an insurrection were less ambiguous. How would their decision here look in that case?
SteveF
Issuing a stay won’t end this unless they write an opinion and include the issue of disqualification. And for courts to butt out, they have to say no State courts or federal court can decide qualifications.
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But that wouldn’t necessarily end State interference. Some state legislature (e.g. California) could decide they can enforce or interpret the 14th amendement and not list someone on the Presidential ballot for Nov 2024. That would be worse than were we are now.
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If SCOTUS does not rule about disqualification court (and state) interference cannot end until
(a) Trump fails to win the primary and/or election and/or the electoral college doesn’t vote him in or
(b) Congress votes to disqualify him after the electoral college votes him in or
(c) Congress doesn’t vote to disqualify, he gets seated and the inevitable suits from other parties (some of whom may have standing) get batted back by the courts. (This path will continue through out Trump’s tenure).
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Thinking merely issuing a stay will end this is wishful thinking. Ending it soon needs a ruling one way or the other.
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Mark
I’d like to hear anyone’s idea about what was specifically crazy– other than the actual outcome.
Lucia,
As I have stated many times before: Trump is an asshole. I would not even play a round of golf with him. I would be pleased if a bolt from on high hit his 4 iron on a back-swing, ending his quest for re-election. My objection is that the ruling is legal garbage. And I am not alone in that: see the Turley analysis I linked to up-tread.
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IMHO, the Colorado law is contrary to normal USA common law. Judges don’t get to declare someone guilty of treason… which is de facto just what the CO judges did. (Merriam Webster: “Treason: the offense of attempting by overt acts to overthrow the government of the state to which the offender owes allegiance”)
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Judges don’t get to make that determination. Nobody has even brought such a charge against Trump, and I find it preposterous for anyone to seriously suggest it is OK for judges in Colorado to make that determination absent charges, trial, and conviction. The CO ruling is at the level of third world, banana-republic politics.
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I predict again: Trump will not be removed from ballots in any state. Nor should he be.
Joshua
I think that’s where Samour’s dissent (on due process) has some merit. The issue is: Given the complexity of this issue, does CO’s law provide a sufficient process to make this rise to the level of “due process”. (There is a process. It’s abbreviated.)
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The CO Supremes do address whether they think the process is sufficient to achieve “due process”. So the question would be are those 4 right? Or is Samour right?
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Due process is a federal issue. They could rule that CO’s law (written in 1992) doesn’t include provisions for addressing complicated legal issues. It’s (normally) a 5 day abbreviated process.
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State statues are sometimes found to violate the constitution. The fix is the state rewrites it to be in compliance with the Constitution afterward.
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SCOTUS could rule in this way– and that could be correct. But then the can about disqualification gets kicked to a later date– when Trump wins the electoral college. I can’t say I think that’s a better time for this decision. But it might be the only legal possibility if CO’s process isn’t sufficient to be “due process”.
Joshua,
I think we view the matter in basically the same way. I think a LOT of what Trump did was highly damaging, shameful, inappropriate, and should disqualify him from consideration by any self respecting conservative, and that’s pretty much been my position since Jan 6’th. I don’t think it was an insurrection. A disgrace that could easily have gotten further out of hand than it did and could have led to much worse than it did, perhaps, but not an insurrection.
I worry about collateral damage. It’s dangerous IMO to disqualify politicians because they spoke at a rally that got out of hand, where supporters protested in a manner that crossed lines. Our free speech protection is serious and important. We need to be careful not to damage our system merely because Trump is a baboon’s backside and we don’t want to suffer through any more of him, in my view.
Lucia,
What is crazy is that the CO judges imagine they can 1) flout common law, 2) issue a ruling to exclude a candidate based on that “analysis” contrary to common law, and 3) not think about the destructive consequences of their ruling.
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IMHO, it is politically motivated garbage, nothing more. I get that people are desperate for Trump to not be re-elected. That desperation shows in a crazy rulings like this.
And I will admit that I go here as well, and perhaps this is a wrong and despicable position to take, and you guys can set me straight: I actually DO want our Supreme Courts to temper their judgement with some consideration of practical consequence and not solely the theoretical legal considerations. If the theoretical legal considerations lead to rulings that may result in actual insurrection, actual large scale civil conflict, I think that should be a warning bell that perhaps something has gone badly wrong with the theory and that we need to slow down and consider more carefully. And I think there is a real risk of that with the idea that Trump can be removed from the ballot on the basis argued so far.
Lucia,
WRT Trump facing a challenge should he win the electoral college: The SC would just laugh at that one.
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Were congress in control of the Democrats and they refused to accept Trumps electoral college vote, I fear there would in fact then be a revolution, and not one with a lot of baby strollers. More like the end of the USA as a country.
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All these bizarre hypotheticals make me think Trump derangement syndrome is truly getting out of hand.
SteveF
If there are no challenges there, then clearly, the disqualification must be applied by the STATES to ensure the electors don’t pick someone disqualified. In which case, they should allow CO to do so–and any way they want.
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If the electors once appointed have absolute ability to vote in whoever they want– not withstanding the disqualification– then the disqualification must be done at the state level. States must have the right to pick electors who pledge to not vote for a disqualified candidate.
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Even the due process clause wouldn’t help Trump in that instance since the process is fine as long as that’s the one the legislature picked.
Joshua,
It’s a fair question. Lemme think on it.
STeveF
What common law are they flouting? And even if you think they are flouting a “common law”, they are following a law passed by the legislature. The constitution says the legislature gets to pass such laws. And written law trumps “common” (or unwritten) law.
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Common law only has force when the legilature has not written a law that changes it in some way.
Steve F
This means things would be worse if SCOTUS kicks the can to later. And that would mean CO has done us a favor.
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Joshua,
I think the problem is that it would never have come up in Colorado if Trump were more obviously guilty of insurrection. Say the Senate had convicted Trump of inciting an insurrection and then voted to bar him from running for office again. I think that the GOP would have accepted that and Trump would never have been identified as a primary candidate. So – it’s difficult for me to imagine that situation divorced from the reality leading up to it. It’s sort of like the crazy hypothetical ethics questions; the real question becomes ‘how on Earth do we arrive at such a point in the first place?’
Lucia,
Trial by jury to deprive someone of life, liberty, or property is BOTH common law and a requirement of the constitution. Colorado doesn’t get to change that by the legislature “passing a law”. Nor does the US Congress get to do that, even if they would like to.
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The US SC members may now believe that they have to issue a ruling (although I am not convinced of that), but I disagree that does anyone a favor. The SC of Colorado could have (and I think should have) recognized that the CO law was (and is) garbage, and kept Trump on the ballot based on that. All the crazy talk of refusing to allow Trump to take office after winning the Electoral College is only encouraged by the nutty CO ruling.
Mark –
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> I think the problem is that it would never have come up in Colorado if Trump were more obviously guilty of insurrection.
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Yes, I thought of that too after I posted that question. But I still think it’s important to get at the question of should the CO Supremes do give that the lower court made it’s ruling. Should they necessarily only rule ok the basis of reevaluating that lower court ruling? I’m not sure. But even if they had, I don’t think it’s completely ridiculous at face value (I’m not able to evaluate the legal context) to say that Trump engaged in an insurrection.
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Yes, it’s obviously problematic to say the courts decide who’s on the ballot as opposed to having the public vote on whoever gets in the ballot. But they can’t just reverse from that problem. That’s not a good judicial principle, imo. They can’t only reverse from a slippery slope kind of reasoning. They were confronted with a legal doctrine and a candidate that a court said was an insurrectionist. They can’t just say the outcome of keeping him of the ballot is a troubling prospect.
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> Say the Senate had convicted Trump of inciting an insurrection…
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What would it take for that to happen? I think for many in Congress the bar there would be extremely high. The courts do have a role to play as a check against Congress..
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> I think that the GOP would have accepted that and Trump would never have been identified as a primary candidate.
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I’m way less confident of that than you..
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> So – it’s difficult for me to imagine that situation divorced from the reality leading up to it. It’s sort of like the crazy hypothetical ethics questions; the real question becomes ‘how on Earth do we arrive at such a point in the first place?’
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Sure. I don’t dismiss that response at all. But repeating myself, I think the CO is under some legitimate obligations and constraints here.
Turley again: https://jonathanturley.org/2023/12/21/the-call-of-history-it-is-time-for-the-court-to-speak-as-one-in-overturning-the-colorado-opinion/
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I would never pretend to make the case more clearly, no matter how I tried.
Joshua,
You’re right here. This ties in with the ‘first impression’ problem I was having before. The court needs to do its job. If it does a poor job, it needs to be reviewed and corrected, but first the court does need to do it[]s job.
Within reason. Keeping a former President off the ballot is a hell of a lot closer to the edge of ‘within reason’ than I care for.
Mark –
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I think we’re pretty close to agreement. It’s certainly not a trivial ruling. The court said they didn’t take the decision lightly. I can understand skepticism about that, but I’m not just going to assume they did, as that doesn’t seem particularly plausible. At the very least, “motivated” judicial reasoning would seem more likely.
“The United States on Friday abstained from a vote on a United Nations Security Council resolution in support of an indefinite pause in fighting to allow the flow of humanitarian aid to Gaza. The vote came after a series of delays, with Washington — Israel’s stalwart ally — negotiating language that it would not feel compelled to veto. ”
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So now the Security Council is on record essentially saying Israel should not eliminate Hamas. This is going to hurt Biden in 2024, and Israel is not going to pay any attention to the Security Council resolution. Most sensible people understand Hamas has to go; unfortunately the UN is nothing like most sensible people.
Just as an aside,
Well, I take certain things on faith that IMO cost me nothing. I take it on faith that the American people, dumb and partisan as we can be, still have certain limits. Past a certain point if Trump was an obvious traitor, insurrectionist, would be dictator, what have you, I take it on faith that the American people would no longer support him. In my view this costs me nothing, because if I am wrong, we are already completely screwed and our society is doomed no matter what we do. So there is that.
[Edit: This is like a downstream consequence of ‘there is no cure for stupid’; you can’t save people from themselves past a certain point.]
Mark –
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At a certain level I agree. But there are all shades. I think that given the previous history with Trump and the kind of support he gets (the shooting someone on 5th avenue kind), there’s a whole lotta wiggle room there.
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Steve –
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> So now the Security Council is on record essentially saying Israel should not eliminate Hamas.
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I am in favor of a ceasefire, with an eye towards a “permanent” cessation (with contingencies), but given a best of all worlds I’m totally in favor of “eliminating Hamas.”
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I think you’re looking at this in a falsely dichotomous fashion.
mark,
I agree that if it were clear that Trump was a traitor, and he actually tried to start an insurrection, most people (including most conservatives) would form a broad consensus that Trump should be disqualified. The issue is that there is no consensus, and half the country (and probably more) does not believe anything like that. Four numbskull jurists in Colorado do not represent a consensus. They represent only a fringe of the most Trump deranged portion of the country, and that is WAY less than half.
One last remark maybe,
My impression actually is that judges have an awful lot of power to rule however they please in their courtrooms. They can be overturned if they are full of cheese whiz, but in point of fact I believe they can rule as they see fit.
If what you’re asking me is for the legal technical details of why the lower court made a mistake, I couldn’t say. I wouldn’t quite say that I have ‘faith’, but almost – I have a heuristic based expectation lets say, that a mistake has been made, if a State is removing a popular candidate who was in fact a former President already from the ballot for insurrection when Congress declined to convict that former President for insurrection already. The heuristic doesn’t help me figure out where they might have gone wrong though, and it’s just a heuristic.
Joshua,
When Hamas is gone it will be a better time to discuss the niceties. I understand that 75+% of the populace in Gaza just wants to destroy Israel and kill all the Jews who live there (and that was before the current fighting), so getting rid of Hamas does not automatically mean something similarly bad will not take its place. But the Middle East needs baby steps: kill or imprison the worst guys, and hope the larger populace begins to recognize that eliminating Israel is not a practical option. The Arab populations of Palestine have never accepted reality; we might hope after Israel eliminates Hamas that they begin to, even though that has never happened in 75 years.
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Worst case, it will take a successor government in Gaza a long time to return to where it can send men into Israel to kill, rape, and mutilate civilians.
Steve –
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We’re obviously so far apart in this I’m not sure it’s worth discussing, but in no way do I think that eradicating Hamas wouldn’t be a desireabks goal, and so I think your reasoning at least on principles is wrong.
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I wouldn’t even exactly disagree that the best outcome would be contingent on eradicating Hamas, or at least significantly degrading it’s ability to conduct attacks against Israel.
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So I’m just trying to be clear that imo, there’s something of a post hoc ergo proper hoc problem in what you said.
Steve,
Yes. The trouble is that Trump is clearly a jerk, to use no stronger term. He’s not clearly an insurrectionist or traitor in the eyes of most people.
Joshua,
Mostly I think Palestinian Arabs (heck, most Arabs) have never accepted the existence of Israel. All the rest follows from that. If you think that is “post hoc ergo proper hoc”, so be it. Based on many visits to Israel and some surrounding Arab countries, I think it is reality.
Is the site broken?
My attempts to post have been ending up in never-never land. But this one went through.
Mike M,
I have had no problems. Could be kids playing video games and using all the available bandwidth. 😉
I am going to try posting piecemeal, to see what happens.
—–
I think that Joe Biden is so mentally decrepit that he is unable to properly discharge the powers and duties of the Presidency. Do I think that the 25th Amendment should be used to remove him from office? Not at the present time. Reason to follow.
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I think that Biden is a crook who was actively involved in an influence peddling scheme to solicit bribes from foreign persons. I think it highly likely that he altered US foreign policy in exchange for those bribes. Do I think he should he be impeached and removed from office? Not at the present time. Reason to follow.
I think that Biden’s border policy amounts to a clear violation of his oath of office and arguably amounts to treason. Do I think he should he be impeached and removed from office? Not at the present time.
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My reason in all three cases is that the public is not convinced of those things, at least not to the point where a clear majority want to use extraordinary means to be rid of him. Until and unless that changes, Congress should not attempt to remove him from office.
I approve of investigating Biden. Congress should not turn a blind eye to his infirmity and misdeeds. But if they can’t convince the public, then they should not act to remove him.
And if the people choose to re-elect Biden next November, so be it. Although I will be bitterly disappointed.
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The people are sovereign. It is up to the people to decide if Biden should be removed from office. Congress should not act to remove him unless it is clearly the will of the people. And the courts should have no role to play whatsoever.
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Ditto with Trump.
That was weird. It let me post all the pieces, but sometimes let me add an edit, sometimes not. The problem seems to have been associated with the first paragraph in Comment #227418.
Steve –
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I don’t look at it as static. What Palestinians will or won’t accept, just as what israliws will or won’t accept, is dynamic, imo, and varies based on circumstances and conditions..
You might think it was all fake, but at one point Fatah would not make statements of accepting a state of Israel until it changed. Popular polling among Palestinians changed with respect to a two-state solution over time, and st times it showed a plurality of support. Recent polling in SA showed widespread support for a two-state solution before Isreal started to kill masses of civilians. Now they won’t even to bother polling om the issue. Even Hamas changed the wording of its charter over time.
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Of course all of this is somewhat contingent on the definition of what a “state” of Israel loiks like.
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I have also had decades of experience working with a wide spectrum of Arabs from different countries and I got a distinctly different impression than the one that you have.
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I would suggest you might read this interview with an Israeli from the Israeli security community re his views on what a consensus belief is in that community re a way forward:
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It’s difficult to evaluate any of this as long as the corrupt and incompetent continues to lead the Israeli government, and sells out to religiously fanatical ultra-ortbodox. He undermined any realistic progress towards a two-state solution for decades. In his own words if you check. It’s not really a matter of debate, imo. Of course, right now, very few in either side are interested in a two-state solution and that will continue as long as Israel maintains their current policy. Bibi has every reasom to continue that policy as his political career and quite likely his freedom from imprisonment likely rest on continued military engagement.
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The Israeli people were sold a bill of goods and believed Bibi’s nonsene about only he could provide security. You’d think the would have woken up after 10/7 but that hasn’t happened. Instead they’re allowing the same people who employed broken policies in 10/6 to Co tune to lead in 10/8, rather than address his numerous failures, including supporting the expansion of settlers in the West Bank, sjopojf hundreds of millions of dollars to Hamas from Qatarz etc.
Sorry, here’s the link:
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Transcript: Ezra Klein Interviews Nimrod Novik https://www.nytimes.com/2023/12/08/podcasts/transcript-ezra-klein-interviews-nimrod-novik.html?smid=nytcore-android-share
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And regardless, I’ll just repeat that I think your logic about who does or doesn’t want to effectively eliminate Hamas is just wrong. Again, your logic would imply that I effectively don’t want to eliminate Hamas and you’d be just wrong about that.
Mike,
You should take it up with the NSA guys. The neat thing about them is, you can contact them just by emailing yourself with certain keywords and –voila! You move right to the top of their customer service priority queue. 😉
Mike M.
I never feel that demanding evidence for some assertion with which one disagrees is polite especially where it would be nearly impossible to obtain, but I’m assuming you have support for your belief that Biden was.or.may still be a crook that satisfies you.
Help me see where you are coming from. I assume there’s something more to this than murmurs of some tv personally.
Mark –
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Here’s a question for you. Suppose the Trump immunity case gets delayed until after the election and after he gets elected he orders the charges to be dropped?
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Without holding you to anything you say now if that were to happen (and more developments occur or you have more time to think about it), any thoughts on that potential eventuality?
Joshua,
Suppose he does. Well, it wouldn’t surprise me, I guess? I don’t know what you’re looking for here.
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I try not to get wrapped around the axle regarding Trump himself. Bringing justice to Trump (or Biden, or any modern President, take your pick really, I assume a certain amount of corruption by default) is way less important in my view than protecting our system overall.
Supreme Court rejects appeal from special counsel to expedite Trump immunity case
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https://www.youtube.com/watch?v=ogjGjsfkyUQ
Joshua,
You are right, we are so far apart on this issue (and especially far apart on what we think is reality in the Middle East) that further discussion is likely futile.
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Happy Hanukkah and New Year. We had the first of two family Christmas get-togethers last night (a hibachi restaurant with 10, I paid), and will have another on Christmas eve (at home). May you also enjoy some time together with your loved ones.
SteveF
A place on the ballot is not life, it is not liberty and it is not property. Hassan wasn’t deprived of life liberty or property when CO kept him off the ballot– without a jury trial at that. He was kept off under the same law and the same procedure.
https://law.justia.com/cases/federal/appellate-courts/ca10/12-1190/12-1190-2012-09-04.html
A stay isn’t a ruling on the merits. They can put a stay in place pending a decision and the stay says very little about the likelihood of the merits.
Joshua,
What they did was SOP for an appeal. Some people might not like it, but not reviewing the “facts” or “merits” de novo is standard practice. Also, a Supremem Court finds a flaw, they usually point it out and return the case to the lower court telling them to rehear given the new guidance.
Jack Smith’s request for special “fast track” treatment of Trump’s “fraud against the USA” trial in DC has been rejected by the SC.
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IMO, this is so obvious a ruling that I actually wondered why Smith would request it. So, now Trump gets the normal periods for the appeal process….. pushing any possible trial back many months. I do wonder: is this guy stupid, politically motivated, or both? My guess: both.
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One might think that having been slapped down by the SC for unlawful prosecution of a Republican politician would actually register in his smallish mind. Obviously, one would be mistaken to think that. What an incompetent asshole he is.
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If Trump (or any other Republican) is elected in November, I suspect I know the name of the first fired prosecutor.
Lucia,
“it is not liberty”
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I could not disagree with you more. Not allowing a citizen to run for public office is most certainly depriving them of a liberty.
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“They can put a stay in place pending a decision and the stay says very little about the likelihood of the merits.”
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They do not even have to do that; no written stay is needed. The CO order automatically stays indefinitely if Trump appeals… and he will, of course. They need to do nothing (not accept nor deny Trump’s appeal) and Trump still stays on the ballot in Colorado; nobody forces the SC to decide anything. Do you really think this is unlikely to happen, given that the Court often tries to skirt difficult cases? (not rhetorical)
john ferguson (Comment #227423): “I’m assuming you have support for your belief that Biden was.or.may still be a crook”.
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You assume correctly.
Briefly, Hunter was at the center of a criminal enterprise, as indicated by the need to launder money. That enterprise was purporting to sell influence with Joe. Maybe it was a scam, but Joe was deeply involved, as indicated by taking Hunter along on Air Force Two, meetings in the White House with Hunter’s associates, emailing information to Hunter and his associates, many phone calls with Hunter’s clients, and dinner with his clients. If it was a scam, Joe was part of it; if not, then Joe was selling influence. And the clients seem to have thought they were getting value for their millions. All of that is based on solid evidence.
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There is weaker evidence that a chunk of the money ended up in Joe’s own pocket and/or that he actually altered US policy to please the clients. It looks like the pressure to fire Ukrainian prosecutor Shokin was contrary to administration policy and that Joe did that without telling anyone that he was going to do it or had done it. Very suspicious, but it needs to be nailed down.
Mike M,
“It looks like the pressure to fire Ukrainian prosecutor Shokin was contrary to administration policy and that Joe did that without telling anyone that he was going to do it or had done it. Very suspicious, but it needs to be nailed down.”
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Indeed. Joe Biden almost certainly acted to advance his family’s wealth, as contemporary emails in the “foreign policy establishment” show. The guy is very likely a simple crook.
lucia (Comment #227428): “A place on the ballot is not life, it is not liberty and it is not property. Hassan wasn’t deprived of life liberty or property when CO kept him off the ballot– without a jury trial at that. He was kept off under the same law and the same procedure.”
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Correct on all counts.
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I think there are a couple significant differences between the Hassan and Trump cases. Hassan seems to have not disputed that he was ineligible, so there was no question of due process. And Hassan seems to have argued that he had a right to a place on the ballot; the Supremes have ruled that there is no such right.
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When courts have struck down ballot access rules, the reason has not been that they violate the candidate’s rights. Such rules impinge on the public’s rights of free speech and free association. As such, the Supremes have held that the rules are subject to strict scrutiny. So the rules must serve a compelling public interest, which is keeping the ballots intelligible for the voter. And the rules must be narrowly tailored and use the least restrictive means of serving that interest. Blocking a vanity candidate who admits to being ineligible fits that criterion. Blocking a candidate who tens of millions want to vote for does not.
Mike M,
We’ll see what the SC says about due process and Trump’s right to appear on the ballot. My guess: they will say the Colorado statute is utter crap.
Lucia,
To be clear: the US SC can accept or deny any appeal on their own schedule….. even if that is June 2026 for an appeal filed today.
Joshua (Comment #227420)
“I don’t look at it as static. What Palestinians will or won’t accept, just as what Israelis will or won’t accept, is dynamic, imo, and varies based on circumstances and conditions..”
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A motherhood statement
Or a get out of jail free comment.
Not your fault but a Panglossian approach to an inconvenient truth.
Joshua, tigers eat lambs if they have a choice.
Everything in the world depends, to some extent, on circumstances and conditions.
The attitude you could take, in so many discussions, imo,is one of considering the actual situation and the probable, not possible variations.
In all of these, at the moment, you would get short shrift as an Israeli surrounded by a Hamas mob.
Also probably vice versa.
While I applaud people for trying to be even handed in their approach to some situations some situations do not want or demand an even handed response.
–
Happy Xmas time to you and all here from this grinch.
angech,
“Joshua, tigers eat lambs if they have a choice.”
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Gave me a belly laugh! And cranes also eat frogs. https://i.pinimg.com/originals/13/ea/89/13ea8915dbb9d7e6516d50a56a2f626d.jpg
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But of course, that is not true in the world of progressive thought. In that world, Israel is a brutal colonizer, Birds never eat frogs, Russia has zero legitimate national interest in Ukraine becoming part of NATO, and Trump is an obvious traitor who should be publicly drawn and quartered in front of the Washington monument… beheading would be far too good for him.
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Fortunately, the Jacobins are not yet 100% in charge.
Scratch three top-of-the-line Russian warplanes…
Reliable sources say Ukraine shot down 3 SU-34 fighter bombers today.
These are 50 million-dollar first-line warplanes. Russia had about 130 of them and Ukraine has shot down about 28.
Info is developing fast, this link is 45 minutes old but may be out of date:
https://x.com/NOELreports/status/1738312165201739961?s=20
Angech –
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I’m going to guess you have zero knowledge of the region and are just imposing upon it trite platitudes about lambs and lions and such.
..
There’s a long record of changes during negotiations. There are unarguable facts, like changes in polling and manifest support for a two state solution. Egypt went from being at war with Israel to negotiating peace over a very short time horizon. The Gulf States and SA have dramatically changed their positions re acceptance of a state of Isreal.
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Don’t take my word for it, read that interview with a long-standing member of the iasraeli defense community. Come to the table with ANYTHING to refute what I said about Bibi’s corrupt government polociss designed on the basis of his self-interest and demonstrably failed policies and promises of security, for the sake of political expediency with fanatical religious zealots..
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It’s truly amazing that on 10/6 his policies were perceived to be so good that there was widespread complacency, to the point where they supported sending hundreds of millions of dollars to Hamas. To the point where they moved security resources from the Gaza border to the West Bsnk to protect violent religious fanatics
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Then, on 10/7 everything changed. Instead of addressing the failures, all that was supposed to be working on 10/6 was no longer applicable. It’s a laughably pathetic reasoning. It’s entirely understandable that inherited and intergenerational trauma would kick in and a desire for vengeance would drive their thinking. They were humiliated and in shock. But that doesn’t justify death on a massive scale for some vague and unachievable goal of “eradicating” Hamas by creating exponentially more terrorists with zero plans for anything strategic beyond that fantasized goal. So please spare me the wandering prose lecture on the harsh realities of life in the ME. Come to the table with something interesting to say, or don’t bother.
Steve –
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> But of course, that is not true in the world of progressive thought. In that world, Israel is a brutal colonizer, Birds never eat frogs, Russia has zero legitimate national interest in Ukraine becoming part of NATO, and Trump is an obvious traitor who should be publicly drawn and quartered in front of the Washington monument… beheading would be far too good for him.
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I’ll ask that you do me a favor. If you’re going to characterize my views, at least attempt to clarify that your characterization is accurate. If in the context of discussion with me you’re referring to somene else’s views, at least attempt to make it clear you’re not characterizing my views (in error).
Joshua,
Meh.
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Show me where Arabs in Palestine have shown any inclination to accept the existence of Israel. Maybe I have missed it in the 20 years since I first traveled to Israel. It is 100% contrary to what I have heard them say.
joshua,
“I’ll ask that you do me a favor. If you’re going to characterize my views, at least attempt to clarify that your characterization is accurate.”
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Yes, like the Babylon Bee has learned, satire is never OK. Check “A modest Proposal (1729)” to understand political satire. This is especially important for anyone who is “progressive”.
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To be clear: I do not think you really want Trump to be drawn and quartered in front of the Washington Monument. Some of your fellow travelers? Not so certain. What I do think is that you and many fellow travelers are very confused about many things, including Hamas and Israel as a start.
SteveF
Naturalized citizens can’t run. And we don’t need a jury trial to enforce that restriction. I don’t consider getting your name listed on a ballot deprivation of liberty.
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Oh, I agree they might do that.
But that’s why my preferred bet is on a ruling— not on a kicking the can. But I know I had an option where the dodge on ruling. There are so many ways they can dodge.
lucia,
“Naturalized citizens can’t run. And we don’t need a jury trial to enforce that restriction. I don’t consider getting your name listed on a ballot deprivation of liberty.”
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Once again, we will have to agree to disagree. The fact that a naturalized citizen can’t run for president is utterly irrelevant. Dogs can’t run for president either. It is a mater of fact versus matters of (political) opinion. The ruling of the Colorado court does not change that. The SC will let Trump stay on all state ballots… one way or another. Whether or not wine changes hands is a small issue.
MikeM
Yes. He didn’t dispute he was ineligible for the office. That does make a difference.
Was Gorsuch acting on behalf of SCOTUS on that? or just some other court? (Circuit?)
Ed Meese filed a brief that Jack Smith’s appointment as Special Counsel is invalid. Actually all special counsels except Durham, whose appointment probably was invalid.
The argument is that they must be confirmed by the Senate. Federal law calls for someone outside the government.
SteveF
It’s not irrelevant. It’s not a “liberty” issue. There are things you can’t do and not being able to do them isn’t a deprivation of “liberty”.
I did go reading to see the other states. Some of the dispute don’t have standing. Some just aren’t going forward because of state law.
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I think the only live issue is CO.
Steve ‘
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It wasn’t your Trump comments that I was saying likely mischaracterized my views. Satire is fine. I don’t care if someone mocks me. But I would also like to see that you actually know what I believe.
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I basically agree with everything Nimrod said in that I interview I linked.
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Feel free to note where he and I are confused.
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As for your globalized and essentializing characterization of Arab opinions, looking beyond your lumping all Arabs in the same basket, again, there has been great movement in the past on Arab-Isrseli relations. There has been, as well, movement in the polling of Palestinians in connection with how conditions have changed. Fatah’s negotiating stance has changed significantly from when they were focused on terrorism, as has even Hamas’ positions. I’m not naive to just accept stated positions contra actual behaviors, but these changers are not insignificant, imo.
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I don’t doubt what you’ve learned from your experiences any more than I doubt what I’ve learned from mine, but one’s analysis from anecdote needs to be grounded in other facts from the context as well as opinions offered by highly credible people with deep, domain-relevant knowledge like Nimrod.
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Feel free to explain how I’m wrong about Bibi’s government. Or how I’m wrong about the vagueness of what “eradicating Hamas” even means. Or the unlikeliness of thaf goal actually being achieved. Or the likely negative (unintended if you like) consequences of the attempt to reach that goal. Or how there’s no actual sustainable plan for what would likely happen next even if it were to be achieved.
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Even Israeli RWers have stated opinions that overlap in important ways with what I’ve said. Why not engage with some of that, rather than offer weak and incorrect characterizations about what it is that I believe?
lucia (Comment #227446): “Was Gorsuch acting on behalf of SCOTUS on that? or just some other court? (Circuit?)”.
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He was an appeals court judge at the time.
Joshua,
“There’s a long record of changes during negotiations. There are unarguable facts, like changes in polling and manifest support for a two state solution. Egypt went from being at war with Israel to negotiating peace over a very short time horizon. The Gulf States and SA have dramatically changed their positions re acceptance of a state of Israel.”
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As said you have a lot of trouble in distinguishing between what is possible [anything], probable [some actual chance of happening ] and reality [what has happened.
Not just on the subject of Arab/Israeli contentions but on other subjects where meandering into the weeds of possibility seems to leave you immune to reality for some of the time.
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That you get appear to feel hurt when this is pointed out [via satire or fact] is your responsibility.
I will point out a few bits of reality for you to consider.
–
Not in my backyard.
The Jewish people were forcibly settled in Israel against the wishes of the locals.
They do not want them there, period.
They are maintained there by force..
–
“There’s a long record of changes during negotiations.” – by duress.
“There are unarguable facts,”
“like changes in polling and manifest support for a two state solution.” Rubbish.
Under duress only. The actual Palestinian position is quite clear and unnegotiable. No Israelis.
–
“Egypt went from being at war with Israel to negotiating peace over a very short time horizon”.
Due to extreme force from the Israelis.
Having your arm bent behind your back and having your legs broken Jack Reacher style is no twhat most people consider negotiating to be.
–
“The Gulf States and SA have dramatically changed their positions re acceptance of a state of Israel.”
A thousand times [very middle eastern] no.
Saying you have changed your position from politeness or fear is totally different to knowing you do not want an Israeli state at any cost [their core real true position].
–
Reality is not Nimrod.
Reality is implacable hatred which breeds people on both sides like Bibi and the Hamas leaders.
The price of freedom is eternal vigilance.
Angech –
.
I never said duress wouldn’t be a factor. You entirely made that up and foisted it onto me, suffering from an evidence-free and deluded view of what it is that I believe.
.
And of course on the other hand, you ignore ANYTHING that doesn’t conform with your deluded characterization. Like the positive effect that detent has had historically on public opinion in the ME. Often. Or the numerous positive developments that have taken place in the absence of duress, like the recent agreements formed over the past decade between numerous Arab states and Israel. And in the third hand, of course you also ignore the ubiquitious effect of worsening conditions during times of duress.
.
Just a rather facile treatment of causality all around. Ignore any variables and associations that don’t fit your assumed causal mechanism. And ignore any instance where your pet presumed causal variable is associated with the exact opposite of your presumed effect.
.
Sad.
.
Read the interview with Nimrod. Bring something interesting to the discussion
Joshua, do you give lessons in keeping your composure, how much would you charge for that? Fine form. I’m not the equal of it.
Mark –
.
I lost my cool more than I like.
.
I just wish people would engage in good faith. If you want to know what I believe, just ask me. Don’t foist views on me I don’t have. If you screw up (we all do), just show some accountability. It’s not that complicated
Angech –
.
> “The Gulf States and SA have dramatically changed their positions re acceptance of a state of Israel.”
A thousand times [very middle eastern] no.
Saying you have changed your position from politeness or fear is totally different to knowing you do not want an Israeli state at any cost [their core real true position].
.
There were problems with each of your points. But this one stands out (just a bit) in the degree to which it is demonstrably false.
.
The agreements Israel has reached with a number of Arab states is far more than just “chang[ing] their position from politeness or fear.” They are substantive agreements out of mutual recognition of self-interest
.
Long-standing peace treaties with Egypt and Jordan and normalization with four other Arab states more recently. A total of 8 Arab states deal with Isreal. These are not merely polite but empty relations. They involve substantive interaction at multiple levels even from states that don’t formally recognize Israel. Of course, just because these (totalitarian) governments have these agreements and dealings doesn’t mean they have widespread support from their citizenries. But my point is that as conditions change so do public opinions as well.
.
For example, from May of this year in the UAE:
.
> A striking finding from this poll is that the solid majority (76%) of UAE citizens say that “firing missiles or rockets against Israel from Gaza”—as in fact occurred a few weeks after the survey was taken—would have “negative effects on the region.” And on a different yet possibly related question, an almost equally large majority (65%) foresee positive effects from “the mass protests by some Israelis against the new Netanyahu government there.”
Attitudes toward economic relations with Israel are more mixed, but still relatively favorable. Almost half of Emiratis (45%), about the same as on similar questions in previous polls, agree that “if it would help our economy, it would be acceptable to have some business deals with Israeli companies.” Along the same lines, 41% predict some positive effects from “the agreement on a maritime boundary between Israel and Lebanon.”
.
.
.
I absolutely guarantee the polling numbers would not be nearly the same now. Not only with regard to Israel but significantly, with respect to favorability towards the US and negativity towards Iran as well, both also trending in directions the opposite of what I would think most Israelis would see in their best interests as well as Americans or Austrians (but certainly not Iranians or Chinese or Russians).
.
Israel was working towards normalization of relations with SA. Clearly they thought that was significantly in their best interests. But they’ve blown that up (at least for now) with the exact same non-existent strategic planning that they have undertaken with their mass killing of civilians in Gaza.
.
But please do, explain to me the longer-term Israeli plan. What’s their plan for Gaza, which is now basically a huge parking lot with a absolutely no viable infrastructure. Let’s indulge in the fantasy that at some point there’s an objectively measurable determination that they’ve “destroyed Hamas.” Who administers that parking lot full of people seeking to avenge their losses? Who’s going to take responsibility for security, to prevent Hamas from reconstituting or being replaced by other (potentially even worse) terror organizations? Do tell. How will Israel pay for the massive expenditures needed? How long will this take, to “eradicate Hamas?” How many Israeli soliders will die in the process? How many of the hostages will be returned alive? Will a long war with even more and more civilian deaths and little doubt disasters such as the killing of the hostages by the IDF, degrade Israel’s relations around the world even further? Will it degrade relations with the US? Will it inspire a continued spike in antisemiticism of the sort we’ve seen all around the world once the bombing really ramped up?
.
Since I have such a namby-pamby kumbaya naive limp-wristed conceptualization of those evil A-rabs, please enlighten me from your macho he-man, steel-eyed vision of how the world really operates. Explain to me what you think Israel’s medium- or long-term strategic plan on these issues might be.
.
Surely you don’t think that Israel is just reacting, at least in part out of (understandable) shock and horror and fear and humiliation and desire for vengeance. Surely, the decades of the policy of disproportionate violence in response to terrorism has been a resounding success all these decades. Look at how spectacularly well it has worked as “deterrence.”. All we need to do is look at Israel on 10/6 and we can see that this policy has made Israel the safest place in the world for Jews to live, right?
.
I mean surely the US invasion of Iraq should serve as a great example of how to engage in such actions in a strategic and careful and well-thought out manner right?
.
Oh.
.
Wait.
Maybe not
Griffin case says Congress is the only entity who can provide for determining who is to be disqualified under the amendment.
Joshua (Comment #227452
–
Thanks for your replies. It is a pleasure having an argument with you.
–
I see you are still using old techniques to avoid addressing my comments and to bolster some of your representations.
–
[1.] Best not to drop in insults, lest others insult you.
[2.] You take my words and claim I said you said them, sad.
[3.] At least you have not accused me of reading your mind, whoops.
–
I pointed out succinctly that Arab Jewish hatred runs bitterly deep and has done so in Israel and Palestine for the last 70 years.
This was in response to your comments suggesting that world and local peace is just around the corner in a state called Kumbayah,
–
“Angech –I never said duress wouldn’t be a factor.”
Double negatives are a good out are they not?
So you claim to have said duress is a factor then?
–
“You entirely made that up and foisted it onto me [2.],
“suffering from an evidence-free and deluded view of what it is that I believe[3.]”
“And of course on the other hand, you ignore ANYTHING that doesn’t conform with your deluded characterization[1.]”.
–
You will notice that I do have evidence of what you believe in the comments you have made here, at Climate etc and ATTP over many years. Views on what you believe are evidently not evidence free.
As for delusion, comments like
” Like the positive effect that detente has had historically on public opinion in the ME. Often.”
” Or the numerous positive developments that have taken place in the absence of duress, like the recent agreements formed over the past decade between numerous Arab states and Israel.”
must be humorous.
In my state of delusion I note that after 70 years of detente Hamas slaughtered and butchered 1300 Jews and Israel slaughtered and butchered 20000 Hamas supporters.
–
“Just a rather facile treatment of causality all around.
Ignore any variables and associations that don’t fit your assumed causal mechanism.
And ignore any instance where your pet presumed causal variable is associated with the exact opposite of your presumed effect.”
–
I prefer to consider it a rational and accurate description of the horrors going on and not have blinkered social welfare, politically correct motherhood platitudes espoused about a serious matter.
–
Sorry if I have been too brusque, I will address your other points shortly.
We can all put up statistics
And we can all ignore any instance where our pet presumed causal variable is associated with the exact opposite of our presumed effect.”
–
Poll: By Raphael Ahren 11 November 2020 More Saudis think Israel, rather than Iran, is region’s biggest threat.Survey also finds half of Bahrainis and third of Emiratis don’t think Jewish State has right to exist, suggesting Israelis’ affinity for Gulf states is not entirely reciprocated.
–
Arab Public Opinion on Arab-Israeli Normalization and Abraham Accords by Dylan Kassin, David Pollock Jul 15, 2022
The wave of Arab countries officially normalizing relations with Israel over the past several years stands in contrast with a growing lack of public support for the Abraham Accords in the Gulf. New public opinion polling from the Washington Institute (TWI) demonstrates that the percentage of those who view them favorably in Saudi Arabia (KSA), Bahrain, and the UAE has dropped over the past year to a minority view.
–
“Explain to me what you think Israel’s medium- or long-term strategic plan on these issues might be.”
–
Simple.
The master plan was outlined by American writer Paul Linebarger, published under the pseudonym Cordwainer Smith in his science fiction novel Norstrilia about a society under similar attack.
The ideas are eternal vigilance,
Great defense systems against attack
adequate spying
overwhelming fire power
and massive retribution if attacked.
These are not new.
Israel and the CIA dropped the ball.
Bibi tried to be nice, detente, I believe.
Worked well too when Biden used it to allow Russia to invade Ukraine.
–
“steel-eyed vision of how the world really operates”.
Look, just go and reenlist at Harvard and find out how the world really works.
MikeN
Griffin is not binding on SCOTUS.
And the statement was irrelevant to the decision. I think that makes it dicta.
“Second, the adverse language in an opinion may be non-binding
dicta within an otherwise binding opinion. ” Later
“On the other hand, dicta is that superfluous language that was not necessary for the court to arrive at its holding. This language is only considered persuasive, because it was not adjudicated in the court but merely expresses an opinion unnecessary to the outcome.”
https://www.law.georgetown.edu/wp-content/uploads/2018/07/Matthew-Schafer-FederalLawFederalCourtsandBindingandPersuasiveAuthority.pdf
The final opinion quite specifically says figuring out whether the judge was disqualified was entirely unnecessary to ruling. That means figuring out who could enforce the disqualification was also unnecessary. The only thing necessary was to figure out if he had been unseated– which he was not.
.
This statement is not remotely binding on SCOTUS– no more binding that what the CO Supremes wrote. I’m sure they will read it, just as they will read amicus curia. But it’s dicta.
.
(What Gorsuch and Roberts have said tells use more because they sit on the bench and so may still think the same things. So, those aren’t biding– and may or may not be dicta– but they may still think it. Chase is dead.)
And by the way MikeN, there are other “dicta” in the ruling that are clearly now considered wrong. Whether or not the 2nd section is self executing, he claims some other sections are not. Courts have widely ruled all other sections are self executing. So other dicta in his ruling were certainly not treated as something that must be true.
.
It’s of course worth finding dicta. But Dicta is dicta. It’s not even binding in SCOTUS decisions.
Here I man… three in a row– also; I think Chase is saying only Congress can unseat someone once they are in the federal office. That’s a slightly different issue from preventing them from taking a seat in the first place. (It’s adjacent, but still not quite the same thing.)
It’s been a good morning…. I was wished “Merry Christmas” three times and not once “happy holidays”. I even got a hearty “Merry Christmas” at the redneck gas station where I get my croissants!
Russell,
I think lots of people just wish you back what you say around here. If I said “Happy Saturnalia” or “God Jule”, I’m pretty sure most cashiers would say “Happy Saturnalia” or “God Jule”! But yeah, nice time of year!!
Angech –
.
>… your comments suggesting that world and local peace is just around the corner in a state called Kumbayah,
.
I will waste my time with this no further. I never said anything that could reasonably support such a characterization. If you thought I had, it’s such an absurd opinion to have, you might have tried to clarify how I might possibly feel that way. It’s such an absurd opinion to have, you might have sought to clarify if your understanding was correct.
.
There’s no way that characterizing my views in such an absurd manner could be anything other than bad faith discourse, which I consider a waste of time. I’d be trying to have a discussion with you and you’d be having a discussion with a figment of your own imagination.
Joshua,
Good call. Pearls before swine becomes obscene past a certain point.
test
[Edit:
Joshua,
I applaud your good sense.]
lucia (Comment #227459): “Griffin is not binding on SCOTUS.
And the statement was irrelevant to the decision.”
.
It is certainly not binding. But the issue of whether section 3 is self executing was central to the decision. Griffin claimed that because of section 3, the judge ceased to be a judge the moment the amendment went into effect and was therefore not a judge when he ruled against Griffin. That the Chief Justice thought that was not the case is relevant to the question of how the meaning was understood at the time.
.
If that section is not self executing, then there needs to be a procedure to implement it. And the amendment gives Congress the power to implement the amendment. So I don’t see how states or counties can set up their own procedures independent of any action by Congress.
Mike M,
I agree that the final wording “Congress shall have the power to enforce, by appropriate legislation” does appear to give enforcement power to Congress, not individual states.
Mark –
.
It’s frustrating. I like sharing opinions and even arguing about these issues. I do it with family and friends to the extent they can tolerate it, but while there’s often disagreement, it’s usually within a somewhat limited range (or a wide range within a limited segment of the overall spectrum of views, if that makes sense).
.
So I seek other ways to have a broader discussion. It’s how I learn, and how I deepen my understanding. But there’s also sn aspect of trying to futily “confirm” that I’m right about stuff, in a kind of addictive or compulsive manner. And it can be tempting to engage that mixture, trying to learn and trying to futily prove (ultimately to myself) that I’m right. Often I reach a point where it becomes clear that there’s nothing for me to learn, because my interlocutor actually has nothing to offer, because they’re not actually engaging in a discussion about my views. And then I’m tempted to hang on for that “proving something” futility.
This was genius:
.
https://xkcd.com/386/
Joshua,
Right there with you, all of it.
The 14th amendement doesn’t set aside Article 2, secion 1, clause 2.
The legislature gets to decide who, how and by what rules the electors are chosen. That means States can chose qualifications to be on a ballot that is involved in chosing electors. They could limit that to “electors who are not pledged to vote for a candidate who is disqualified”. And they can set up the process for adjudicating that.
Lucia –
Re: 227429
.
> What they did was SOP for an appeal. Some people might not like it, but not reviewing the “facts” or “merits” de novo is standard practice. Also, a Supremem Court finds a flaw, they usually point it out and return the case to the lower court telling them to rehear given the new guidance.
.
Thanks for that. That was my impression.
lucia (Comment #227471): “That means States can chose qualifications to be on a ballot that is involved in chosing electors.”
.
But the discretion of states to limit ballot access is not unlimited, even in state and local elections. SCOTUS has frequently struck down ballot access requirements: Norman v. Reed, Storer v. Brown, Lubin v. Panish, Bullock v. Carter, Illinois State Board of Elections v. Socialist Workers Party, Anderson v. Celebrezze.
.
The last two seem especially pertinent. In Illinois Justice Marshall wrote
https://ballotpedia.org/Illinois_State_Board_of_Elections_v._Socialist_Workers_Party
Note that the issue is not some right of candidates to be on the ballot, it is about freedom of speech. Justice Stevens, writing for the majority in Anderson was even clearer:
and
https://ballotpedia.org/Anderson_v._Celebrezze
.
The CO decision arguably is an unfair restriction of Trump’s right. But even more important is that it is a restriction of the rights of voters.
Mike M,
“Until and unless that changes, Congress should not attempt to remove him from office.”
.
I wanted to respond yesterday, but forgot to.
.
Yes, it is a silly waste of time and political capital to impeach Biden, if only because, quite independent of the damning facts, there is no possibility of a Senate conviction and removal. I think the only sensible thing to do is document as completely as possible all of Biden’s many failings, lies, and corruption, and make sure the public is fully aware of them. The guy is a crook and unrepentant liar. But so were Bill and Hillary. And Trump’s connection to the truth was no better than Bill’s.
.
Impeachment is a purely political power question, and I think Nancy Pilose did the country a terrible disservice by impeaching Trump (twice!) when there was zero possibility of conviction and removal. The process only exacerbated already deep political divisions and made Trump more likely to run again. Same with the stupid politically motivated lawsuits already filed against Trump.
Mike M,
Being disqualified under the 14th amendment isn’t a matter of “free speech”. Free speech rights of voters doesn’t make anyone and everyone they vote for qualified. That wouldn’t work for a 14 year old candidate either.
MikeM
You can argue all you want. But right to what? There is no right to vote for a candidate who is disqualified from office.
lucia (Comment #227476): “There is no right to vote for a candidate who is disqualified from office.”
.
That is debatable. Who decides if a candidate is disqualified? I say the people decide. That may be a flawed, but it is vastly better than letting courts or bureaucrats decide who people may vote for. The latter is not different in principle from Iranians letting the mullahs decide who they may vote for. Here, the people are sovereign.
.
The situation would be different if Congress enacted a law to implement section 3 and that specifies crimes which result in disqualification upon conviction. But that is not the case.
MikeM
The criteria are listed in the constitution.
With respect to the constitution: It is the duty of ALL of the following to uphold and comply with it:
State legislators, governors and courts.
Federal legislators, governors and courts.
Military.
When there is a dispute, these end up in the courts.
I this case, a State Legislature set up a procedure for selecting candidates. The want to only selected qualified candidates– and have refused to sit unqualified ones in that past. That procedure has been upheld by courts.
The process is unfolding in what is a normal way.
This particular case is more controversial because Hasan was never going to be elected. Also, because Hasan admitted he wasn’t qualified. But the process is the same.
The analysis by the Babylon Bee is spot on:
https://babylonbee.com/news/colorado-saves-democracy-by-not-allowing-people-to-vote-for-preferred-candidate
Lucia,
“I this case, a State Legislature set up a procedure for selecting candidates. The want to only selected qualified candidates– and have refused to sit unqualified ones in that past. That procedure has been upheld by courts.”
.
Not the only court that really matters. Trump will stay on the ballots of every state.
Xkcd very funny and appropriate.
I do get very wound up at times.
Thank you for your input in three ways.
It is important to see someone put up alternative views and test limited boundaries if done in good faith.
Even learning that there is nothing to learn is learning (apropos Rumsfeld), if that were true.
Your summary of what a bad faith discourse is, is so apt that I am tempted to cut it out and save it so I can look at myself in the mirror, every day.
As Asimov wrote bad faith accusations are the last refuge….
Hummmmm…. USA Today, Dec 23:
So…. if Putin retains a land bridge to Crimea, he may be willing to talk. For me, that is not surprising. If the reports are true that Putin wants a ceasefire, will Ukraine or NATO/USA take him up on it? I very much doubt that. But I can hope.
Even Supreme Court rulings are not binding on the Supreme Court, so of course lower court opinions on secondary issues will not be. However, the author was the sitting Chief Justice. At the time it was common for Supreme Court judges to sit in on lower courts.
Sandra Day O’Connor even did this after she retired.
I don’t think states can ban electors for a candidate if they can’t disqualify the candidate. Some people tried this with Obama over his birth certificate and his SSN being reserved for Connecticut.
Mike M,
I think the Bee is hit-or-miss, but sometimes, as in this case, they nail it. IMHO, the CO Supreme Court deserves all the ridicule they are receiving, from many unrelated sources. Way, way out of line.
MikeN
Sure. But those at least fall under the principle of “stare decisis”. They need a lot of tap dancing or just admit they’ve overruled a precedent.
In the case of dicta from Griffin– there’s not the slightest issue with disagree with it. It doesn’t matter that Chase was sitting Chief Justice. It’s still “dicta” from a ruling. Neither “dicta” nor lower court rulings bind in the slightest way.
They failed because his birth certificate showed he was born in Hawaii. I have no idea why a SSN being reserved for Connecticut would have any relevance at all. Mine is from Illinois. I’ve never heard there’s a list of states from which SSN’s must originate to qualify for the presidency.
MikeN,
Your analysis is much more valuable than most.
I think it was added as evidence of a fake birth certificate, why wasn’t his SSN from Hawaii? Simple explanation was that it was off by one digit from Hawaii.
Lucia,
I know you weren’t impressed with my argument that red states might retaliate for kicking Trump off the ballot by kicking Biden off the ballot. Here is a RedState blog post that contemplates exactly that. I’m sure you will remain unimpressed; after all, it’s just a blog post. I hope it stays that way, as nothing more than a blog post. Sometimes stupid seems to be contagious though.
[Edit: What is my deal. It was powerline, not RedState. Sorry]
SteveF, just having a gay old time copying the dissent.
Ed Meese’s brief is making more sense now. According to @shipwreckedcrew, DOJ rules on special counsel do not come from a law passed by Congress. Someone in DOJ has been paying attention to this and chose to violate the rule on outsiders in favor of ensuring the prosecutors have been confirmed by Congress to a position with authority to prosecute on behalf of the government.
I skimmed through a lot of this and I won’t go into detail on the abstruse legal issues that could be raised. My basic points are
….
1. This is not really a legal issue but a political issue and the Colorado supreme Court is acting based on political motivations. Similar to when the US supreme Court consistently divides based on political outlook.
2. I can’t see any logical or practical way that a riot in a situation where no shots were fired can be in any way construed as an insurrection.
3. The supreme Court decision that will be made when this case comes before it will be mostly based on practical and political considerations, not on legalistic argument based on the text of any amendment or based on language in previous court decisions. The classic example of this was Justice Roberts creating a loophole to approve Obamacare by saying that it are mounted to a tax which gave Congress the authority to force people to buy it.
Dan McLaughlin, AKA BaseballCrank, cites this paper by Miles Lynch to rebut the article by Paulsen & Baude which was used heavily by the Colorado courts.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3749407
Ed Forbes, you wrote:
President to issue a “proclamation” that “immediately order[s] the insurgent to disperse and retire peaceably to their abodes within a limited time” whenever he or she wishes to rely on these authorities..”
.
No such “proclamation” was issued by the President on Jan 6, so the act was not activated. Without such “proclamation”, one cannot be charged under this Act.
Trump did issue a proclamation. Remember the posts that got him banned from Twitter and Facebook?
‘be peaceful’ ‘but you have to go home now’
MikeN,
.
I’m confident that any charge of Insurrection brought against someone by citing this statement as a proclamation of insurrection would get tossed by the courts.
.
The courts would require any such proclamation to specifically state that any who didn’t disperse would be in violation of the Insurrection act. Trump very clearly did not say anyone who didn’t go home would face legal sanctions.
.
That said, I had either forgotten or even knew about this post. Kind of puts the charge of insurrection against Trump for the “riot” straight into the wastebasket.
Is Claudine Gay toast? Maybe she is: https://webcache.googleusercontent.com/search?q=cache:https://www.washingtonpost.com/opinions/2023/12/23/claudine-gay-harvard-resign-plagiarism/
.
When the WaPo admits a progressive star is a serial plagiarizer, that person is in trouble. Another nice tidbit from the scandal: when the NY Post published side-by-side examples of Claudine Gay’s “work”, suggesting plagiarism, Harvard threatened the Post with libel. Fortunately, the truth is always a defense against claims of libel, at least in the USA.
.
For me, the strangest thing is that Harvard (and many other “selective” schools) seem so utterly shameless about their obvious racism in hiring and in admission. The moral and intellectual rot is deep and will be difficult to get rid of. Withholding Federal monies (student loans, research funding, etc) from any organization which practices racism might do the trick, but Congress is not going to do that any time soon, if ever.
“How the woke stole Christmas”
“You probably didn’t realize that “Black Friday” is a racist term. “White Christmas” is another racist term. Try to say, “Merry Christmas” at your workplace and your co-workers will gasp. You can’t even play the Christmas song, “Baby, It’s Cold Outside” without some woke progressive getting in your face, calling you a sexist. The woke progressive have just about ruined everything this Christmas season.”
My personal poll continues… Two workers at Publix wished me “Merry Christmas” today. These were sincere because they greeted me first. So far, five unprovoked “Merry Christmas” and no “happy holidays”.
It’s good to live in Redneck Country!
Quote is from:
https://www.times-standard.com/2023/11/26/matthew-in-the-middle-how-the-woke-stole-christmas/
Mark
it’s not that I think they won’t try. I think it’s easy to distinguish the basis. Not enforcing the border is not “insurrection or rebellion” and it’s also not “being less than the required age”.
Lucia,
Yes. The Powerline post makes the point that insurrection is not the only path to removing someone from the ballot. Bribery may work as well:
Emphasis added.
.
The larger point is that political/quasi legal lawfare is like nuclear deterrence in some ways. MAD has been violated by Colorado. It’s not that nobody can find a legal theory under which we can keep politicians from the other party off the ballot, its that so far as a nation we have had the sense not to go there. [Edit: for the most part] Well, now that we’ve gone there once, we’ll go there again. Perhaps the time will come that we go there trivially and remove future candidates from the ballot. Yea progress, right?!
Mark bofill,
It is now clear that Biden is utterly disqualified by way of corruption from holding public office. 😉
.
Your parallel with MAD is apropos. IMHO, everything that is transpiring under the general heading of ‘lawfare’ is misguided, destructive, foolish, and may ultimately lead to extremely grave consequences for the country’s future. I hope the SC has the good sense to stop what they can (which is nearly all of it).
.
That doesn’t mean they will.
mark bofill –
While you and I might believe there has been a violation of 18 U.S. Code § 201, there has been no conviction thereunder. [Edit: also, the disqualification penalty does not seem to be automatic, but at the discretion of the judge(?) in the bribery case.]
I know, Trump hasn’t been convicted on an insurrection charge either. Didn’t stop the CO court from assessing that he’s guilty of it.
I suspect you’re right, that line will be crossed again.
P.S. Merry Christmas to all, or happy holidays!
FlightRadar24 is tracking a strange aircraft over the Indian Ocean approaching Madagascar, call sign R3DN053. Link:
https://x.com/rklier21/status/1738973865001271587?s=20
Oh. Thanks Harold.
I should make clear, I don’t think Joe Biden is any guiltier of anything than any other modern President. I assume corruption by default at that level. Biden was merely unfortunate to have a careless family member who made it easy for everyone to see, as far as I am concerned.
I certainly don’t want courts becoming more aggressive in taking candidates off the ballot, I think that’s a step in the wrong direction for us.
I don’t think that anyone is seriously suggesting that Biden should be kicked off ballots. Not the Powerline blog, nor Dan Patrick, Ron DeSantis, or myself posting above. For instance, Patrick raised the issue, then said something along the lines of “of course, we won’t do that in Texas since Texans believe in democracy”.
.
The point about kicking Biden off the ballot is just to illustrate the nonsense that would result from adopting the CO courts’ reasoning.
Mike,
Well, it starts that way. It starts but doesn’t necessarily end there. If Trump ends up actually being removed from the ballot, I think you’ll find plenty of people will be looking to retaliate tit for tat. The reasoning behind the escalation is ‘well, clearly we need to SHOW them what we will do in response if they do…’
jdohio (Comment #227492),
Yup. They will toss the Colorado ruling, if only to preserve the Union.
Thanks for drawing attention to JD’s post Steve, and JD thanks for posting. I sure hope so! I sort of think so too.
mark bofill,
” If Trump ends up actually being removed from the ballot, I think you’ll find plenty of people will be looking to retaliate tit for tat.”
.
I wish it were it so simple as keeping Biden (or Trump) off ballots in states he will lose anyway. I think the escalation would lead to civil war. The SC needs to stop this madness, ASAP.
Steve, yes. I fear the same thing, and yes. SCOTUS really needs to burn this whole idea down as best it can.
mark bofill,
Yes, most politicians are corrupt to some extent, in that they manage pretty much always to become very wealthy, in spite of a relatively small official salary. Some would argue that Biden is worse than most.
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Elected officials who are very wealthy before election (like Mitt Romney), are less likely to be involved in the kind of money-grubbing, low-brow corruption so evident in the case of Joe Biden.
mark bofill (Comment #227506): “Well, it starts that way. It starts but doesn’t necessarily end there. If Trump ends up actually being removed from the ballot, I think you’ll find plenty of people will be looking to retaliate tit for tat.”
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And I thought that I was the cockeyed optimist! 🙂
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The response to keeping Trump off the ballot will likely be a lot “stronger” than some legalistic tit for tat. 🙁
SteveF (Comment #227511): “Yes, most politicians are corrupt to some extent, in that they manage pretty much always to become very wealthy, in spite of a relatively small official salary. Some would argue that Biden is worse than most.”
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I don’t know if Biden has lined his pockets to a greater or lesser degree than is the norm. But he seems to have done so by altering policy to favor foreign actors, arguably to the detriment of the United States. That is, I think, unusual although not unique (Sen. Menendez, for example).
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It also seems that Biden has been exceptionally arrogant in his corruption. So it might actually be possible to nail him. That is also unusual although not unique (Sen. Menendez, for example).
Interesting piece here from a Democrat Trump supporter. The good stuff is toward the end.
https://sashastone.substack.com/p/an-ex-democrats-case-for-trump
mark
Code is not the constitution.
Lucia,
Since the incident came up you and I have been discussing different dimensions of what’s happening. I know you’re focused on the legal aspects where I am not. Given that, it was kind of lame for me to have addressed my comment regarding this to you.
I don’t really dispute anything you’ve said. I just care less about the legal details than you I think. I’m more focused on how this plays out socially and politically I think.
Merry Christmas Eve and best regards as always.
mark
Politically, it’s a cr*p storm anyway it plays out. Sadly, I really don’t see how we get out of this pile.
No confirmation, but this may be big…. Russian sources are saying a Ukrainian F-16 has shot down a Russian SU-34 fighter bomber behind the Russian front lines.
Officially, F-16s have not yet been delivered.
I think states should throw Biden off the ballot now, and not wait for an adverse ruling, which might not come. As it is, I think we are looking at a partisan split in favor of Trump which will then cause the left to again attack the Supreme Court. If Biden is also off the ballot , then there might be a unanimous decision.
MikeN,
That might be a way to get a ruling on an awful lot of questions.
* Can states enforce disqualification?
* How much due process is required?
* Do which ever provision is used include the President.
* Under what circumstance does the exclusion violate 1st A?
Better sooner rather than later.
Merry Christmas to all!
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Spent 3 weeks in South America, and finally officially got covid after 4 years. Basically a mild case with only a runny nose for a few days and lingering minor symptoms. I probably wouldn’t have even tested myself at home. I had a booster before I left so whether that was a factor is speculative. My wife tested negative even though she was in the same room. There were lots of people on our cruise with … ummmm … respiratory symptoms and taking no precautions. It’s the new world.
Merry Christmas Ukraine, here’s your F-16s:
https://x.com/rklier21/status/1739292890264744172?s=20
President Zelenskyy thanked the Netherlands in his nightly address:
“I spoke with @MinPres Mark Rutte to thank the Dutch government for its decision to start preparing the initial 18 F-16 jets for their delivery to Ukraine.”
https://x.com/ZelenskyyUa/status/1738176396923445692?s=20
True to form the Ukrainians posted a welcome to Ukraine video for the F-16s:
https://x.com/HoshiAngels/status/1739221447006941527?s=20
Respected OSINT site NOEL presented unconfirmed reports that the radar was upgraded in Ukraine’s F-16s:
“F-16 in connection with Patriot will be able to strike at Russian jets without entering the zone covered by Russian air defense,” aviation expert Bohdan Dolyntse said.”
“If Russian jets try to overtake/intercept the F-16, a Patriot will effectively land it,” he adds.
“apparently with better radar, that will allow UAF to use AIM-120 at maximum range (120km).”
https://x.com/NOELreports/status/1738848547468968241?s=20
Germany recently sent Ukrain two Patriot air defense systems:
https://www.bundesregierung.de/breg-en/news/military-support-ukraine-2054992
There is speculation that the three SU-34s shot down a few days ago were also bagged by the F-162.
The Colorado ruling only makes me more sympathetic to Trump in the sense that I don’t want activist progressives with clever lawyers running the government who openly apply different standards depending on one’s identity group. I suspect many others feel the same way.
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I’m still not voting for him, but this will likely backfire for all the obvious reasons we have spoken about previously.
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The Supreme Court may either refuse to hear the case or not overrule it because they have historically been hesitant to have the feds stick their noses in elections that are legally the responsibility of the states. It’s a stupid ruling by Colorado, but one step above just having an unelected bureaucrat unilaterally make the decision which could happen in other states. I think a conviction would need to be in place first, this “self executing” judgment sounds pretty shaky to me.
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As always, the silence and/or lack of outrage from the danger to democracy crowd is very telling. They basically just discuss whether this amounts to bad tactics for their team.
Another Russian jet down, an SU-30 over the Black Sea. This is six of Russia’s top jets in four days, all of them far from Ukrainian territory. Perhaps the stand off capability of the F-16s is the difference.
I’m sure a few people in the Jan 6th mob did want insurrection but I am not convinced at all that one can make the case that Trump directed this or was part of a conspiracy. The opposing argument has always been that Trump was just exhausting increasingly bad legal options and had come to the end of the list.
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Making that part of the judgment is where legal bias creeps in. They thread that needle for the desired outcome but still need to make this judgment based with an ongoing standard that can be applied to both sides in the future.
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Regardless I don’t see how anyone can see this as a clear cut case and the weight of removing a leading contender from the ballot brings this decision to another level. If these type of decisions proliferate and make a material difference in the election outcome then I predict political violence .. and this political violence will be * legitimate * and * deserved * IMO even if I don’t want Trump elected. You reap what you sow. They need to be very clear about what standards they are using and they need to have the consent of the people.
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For example removing Santos was probably unnecessary but they had the will of the people behind that move. Without that you are playing with very serious and unpredictable consequences.
Lucia,
The first night they had a professional dance group come aboard from Buenos Aires and they did an hour long dance show, mostly Tango which I guess is a big thing there. The crowd really loved it. Those female dancers were unbelievably fit, and some of those quick kick dance moves were astonishing, and looked pretty dangerous if done incorrectly, ha ha.
Russell,
I think you’re correct. This says Ukraine has received F-16s. I find other articles that talk about how pilots have been training to fly them in recent months.
I don’t have any idea how long it takes to truly become competent at flying one of those things, so I’m not confident I know if Ukrainians are actually flying them or not. But it’s possible they are already being flown.
Mark, Yes lots of indicators are popping up. But I haven’t seen a confirmation yet, call me a Doubting Thomas!
For some reason Russia has lost five top jets in a few days time. Something is happening and the F-16 arrival would explain it. Perhaps the Dutch F-16s are just bait to draw the Russian fighters closer and the new Patriot Missiles supplied by Germany pop them.
US military technology is getting a lot of props.
Mike M,
“It looks a lot like fascism.”
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I agree with Stone that there is some resemblance, but I would put it under the heading of “totalitarian leftism” not “fascism”. The motivations of those two (horrible) groups are different, while the loss of liberty for the individual is pretty much the same.
I suspect the losses are much more likely due to the weapons/sensors in use than the airframe. They might have extended the air to air range a great deal. It’s also possible some newer weapon systems might be undergoing limited operational testing here. I would expect the Russians will change tactics until they figure out what is going on.
From the Massachusetts Constitution, WRT Harvard’s governing body (the Harvard Corporation):
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“…nothing herein shall be construed to prevent the legislature of this commonwealth from making such alterations in the government of the said university, as shall be conducive to its advantage and the interest of the republic of letters, in as full a manner as might have been done by the legislature of the late Province of the Massachusetts Bay.”
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Ouch. Looks like the Massachusetts legislature can at any time take complete control of Harvard. I expect the Governor could just give the Harvard Corporation a call and tell them Gay has to go, and that would be that.
Tom,
Yup.
Tom
Yes. Argentine Tango is a variety of tango, and is very fun to watch. (I don’t do it.)
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Tango started in Argentina, but there are debates about which version of Tango is closest to the original. Argetinian performer traveled to Paris and performed. Then that version was ‘frozen’ by the people competing tango in Europe. Some people say “Standard” or “International” tango is closest to original and Argentine Tango evolved. Both versions are fun to watch– but the Argentine Tango (AT) definitely has traveling troupes.
Conviction is not necessary. The Miles paper lists examples of Congress’s disqualifying people. Trump’s co0nduct would not have been considered disqualifying in the 1870s. There has to be an insurrection before one can engage in it. Words spoken prior are free speech, and inaction is not sufficient after an insurrection has started.
Tom Scharf
I’m sure a few people in the Jan 6th mob did want insurrection but I am not convinced at all that one can make the case that Trump directed this or was part of a conspiracy.
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An insurrection is a, usually forcible, change of government.
If it succeeds it is usually because enough people with power, usually the army, organise a coup in the hope of success.
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There was no army support for a change.
There was no general support for a change.
There was no planned coup in place.
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Not sure what type of insurrection existed for people to hope for