A Brief Respite From Yesterday’s Promise
Yesterday I said I would refrain as much as possible from engaging in political argument. I’m now breaking that promise. (But I hope not to make this a habit.)
Today the Supreme Court heard arguments on why former President Donald Trump participated in an insurrection and whether or not states have the ability to decide the question of who can appear on their ballot.
The Supreme Court seems reluctant to render a decision on behalf of the plaintiff (The State of Colorado). The following arguments appear to be ones that will weigh heavily into the Court’s final decision:
- Amendment 14, Section 3 Doesn’t apply to former Presidents running for a second term.
- Amendment 14, Section 3 There is a difference, between “Officer” and “Office.” The Presidential “Office” does not make the holder an “Officer.”
- Amendment 14, Section 3 Prohibits states from weighing in on presidential elections without express legislation from Congress giving them that authority.
- Amendment 14, Section 3 States do not have a role in determining presidential candidates, that process is administered by the political parties themselves. It is a “national” process.
- Amendment 14, Section 3 A candidate can not be called an insurrectionist unless convicted of that crime in Federal Court. (The defendant did not agree with this notion because Presidents and former Presidents have absolute immunity from prosecution. This is a proposition not yet legally decided. Based on a now two-day-old Circuit Court decision, that proposition seems unlikely to be upheld.)
All of this is nothing more than an elaborate dance around the issue in question. The issue at hand: Did former President Trump participate in an insurrection? If it were determined that he did, then he is excluded under Amendment 14, Section 3. That determination is the only job of the Supreme Court. Their desire to find an off-ramp to this issue that would allow them to weigh in without determining what exactly constitutes insurrection is a dramatic failure by our highest court in the land.
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