by Shipwreckedcrew
The subject of this article is not something that I divined myself without being influenced by the comments of others that I’ve read and heard over the past two weeks. But the “X” post above was my initial comment the morning the Supreme Court issued its opinion restoring former President Trump to the ballot in Colorado. Close scrutiny of what the Court did shows why the Democrats — and three Justices who joined in a concurring opinion written by Justice Sotomayor — were so agitated. Instead of stopping at a ruling that a state lacked the authority to implement the disqualification clause of the 14th Amendment with respect to an election to a federal office, the Court went on to answer the next question — how is the disqualification clause to be implemented in the future consistent with the language of the Amendment?
Before getting into the text of the opinion and why my initial observation was correct, it should be noted that the decision of the case was 9-0. That means that every Justice agreed that Colorado should lose on the issue of whether a state can implement the disqualification clause with regard to a federal office. The vote total in a judicial outcome reflects the outcome of the case — not the reasoning underlying the outcome. That is shown in the opinion(s). The Justices are free to write opinions or join the opinions of others to explain their votes.
When fewer than five justices join any particular opinion, the outcome of the case is called a “plurality” and the opinion that garners the most support — or the portion of any particular opinion that garners the most support — is the “Opinion of the Court.” But the vitality of that opinion — and it’s persuasiveness in the future — is undermined by the fact that a majority of the Court did not agree.
In the Colorado case the vote on the outcome was 9-0.
But more important is the fact that the Opinion issued by the Court had the full support of five Justices in its entirety. That makes it an “Opinion of the Court” for all purposes that will stand until five Justices decided in some future case to overturn it.
Justice Barrett issued a short concurring opinion noting that she agreed Colorado lacked the authority to enforce the disqualification clause on its own, but would not have gone on to decide further the question of how the disqualification clause can be enforced as the five other Justices had done. She did not express any substantive disagreement with the five other Justices — her only point was that she would not have gone that far. It is also notable that she did not join the concurrence of Justice Sotomayor.
The three Justices who joined in Justice Sotomayor’s concurrence took issue with the parts of the majority opinion that went beyond the question involving what Colorado had done. Their reasons for doing so, and the reaction of the Democrats and liberal legal pundits, reflect my initial reaction — the Opinion sets up procedural and substantive roadblocks to planned efforts to block Trump from taking office if he wins the election in November.
Beyond simply saying that Colorado’s action was without lawful authority, five Justices looked at the history of the 14th Amendment, prior Congressional action at various times of the past 160 years since it was adopted, and earlier Court decisions that have employed various mechanisms to enforce the disqualification clause. Against that history they laid out the process by which the disqualification clause can be invoked to prevent an individual from holding federal office — such as the Presidency.
Here is the key passage:
Section 3 works by imposing on certain individuals a preventive and severe penalty—disqualification from holding a wide array of offices—rather than by granting rights to all. It is therefore necessary … to “‘ascertain[] what particular individuals are embraced’” by the provision…. [T]o accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable….” The Constitution empowers Congress to prescribe how those determinations should be made. The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “enforce” the Fourteenth Amendment…. Congress’s Section 5 power is critical when it comes to Section 3. Indeed, during a debate on enforcement legislation less than a year after ratification, Sen. Trumbull noted that “notwithstanding [Section 3] . . . hundreds of men [were] holding office” in violation of its terms…. The Constitution, Trumbull noted, “provide[d] no means for enforcing” the disqualification, necessitating a “bill to give effect to the fundamental law embraced in the Constitution.” Ibid. The enforcement mechanism Trumbull championed was later enacted as part of the Enforcement Act of 1870, “pursuant to the power conferred by §5 of the [Fourteenth] Amendment.”
In this passage the Court explicitly stated that it is congressional legislation — “a bill to give effect to the fundamental law” — that is to be the enforcement mechanism to be used in the application of the disqualification clause.
The Enforcement Act of 1870 was just such legislation. It set up a civil remedy to be pursued by government attorneys through federal court that would work as a disqualification pursuant to Section 3. That statute was later repealed.
The Court noted that Congress also passed a statute prior to the passage of the 14th Amendment that made insurrection a crime, and included in the penalties disqualification from holding public office.
So not only was the intended implementation of the Sec. 3 contemplated to be by way of implementing legislation, twice in the years following the Civil War the Congress had passed precisely that type of legislation. Although the code section and statutory language has changed over the years, there is currently a criminal statute that covers insurrection — 18 U.S.C. Sec. 2383. That statute reads:
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.
None of this is terribly controversial — the law exists and is available to be used as warranted.
But what the Democrats and liberal legal pundits reacted to in the Colorado decision was the language in the opinion that a criminal prosecution under this statute is the only avenue now available to disqualify a candidate for federal office — President or otherwise.
Five Justices voted that Congressional legislation is necessary to establish a process for removal under Section 3 — other than as it already exists as a criminal penalty under Sec. 2383. If not prosecuted and convicted under Sec. 2383, any alternative mechanism would require a new act of Congress, passed by both Houses and signed by the President.
Special Counsel Jack Smith opted to not seek to charge former President Trump with having violated Sec. 2383 in the indictment connected to the events of January 6. While nothing would stop SCO Smith from returning to the grand jury now to add that charge to the existing indictment, doing so would make it impossible to get the case to trial — and a verdict — prior to the November election.
But the Democrats had been quietly hatching another plan — one that doesn’t rely on any criminal convictions ahead of the November election to sway voters. It is almost certain that if former President Trump wins the election in November, the last line of resistance was going to be the January 6, 2025, congressional certification of the electoral votes, with Democrats planning to raise objections to counting the votes from states won by Trump on the basis that he is disqualified from holding office under Section 3 of the 14th Amendment.
The votes of five Justices now constitutes precedent that only a narrow path through new enabling legislation passed by Congress would provide a basis to disqualify candidates in a future election, thereby delegitimizing any plans being contemplated now to invoke Sec. 3 in the electoral vote counting process. As the liberal Justices lamented:
… five Justices go on. They decide novel constitutional questions to insulate this Court and petitioner from future controversy. Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so. The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement.
“[T]he majority shuts the door on other potential means of federal enforcement.”
There it is.
Three members of the Court would apparently be open to the continuing to explore the issue of former President Trump’s eligibility to hold office one, two, or however many more times is necessary limited only by the imaginations of those who would seek to bar him from office notwithstanding that he had won the election.
But the three Justices see in the language of the majority opinion exactly what I saw when I first read it — that SCOTUS is not going to allow itself to be the arena in which the outcome of the election is sought to be decided, with a vote of the nine Justices determining the winner and loser of a partisan political race.
The Democrats totally reject America the U.S. Constitution and what it was written for since they end to think its only purpose is Open Borders and Sex Education for 2nd Grade Kids