Laurence tribe has it right

[scipan]

It was up to the Supreme Court to solve the problem of 50 different states each doing their own thing. They punted.

Now we are left with a Constitutional Amendment without any means to enforce it. IMO that can't be right.

There was nothing in the amendment that said congress shall write enabling legislation. It only gave them the power .

Show me where I'm wrong. The basic idea is from tribe on Lawrence just now.

[elleng]

1. Right, can't be right.

[scipan]

4. Thank you elleng! Nt

[Silent Type]

2. Think it was reasonable decision, even though I'd love for trump to get removed otherwise.

[scipan]

3. They took all the teeth out of it. Now it just sits there. Nt

[elleng]

5. ;-(

Taking another, unpopular step: Can our democracy survive?

[scipan]

6. Why was it 9-0 as to the result? We must be missing something? Nt

[elleng]

7. Result was to the matter at issue, Colorado decision to remove tmp frm ballot cannot stand, 9-0.

[scipan]

8. The idea was that SC would cure that.

They just don't affirm anything, like yes nothing wrong with CO factual finding that he insurrected (new word!), nothing wrong with CO reading of the 14th §3, but...

Well, it seems to me like it was right that the SC should provide something more than that (siding temporarily with the majority).

[Goodheart]

9. The ruling makes no sense, even when it was 9-0

As it stands a state can keep people off the ballot for other constitutional reasons: too young, not a natural born citizen, etc. What they said today is that states do not have the power to keep people off Federal elections. Totally inconsistent.

[scipan]

11. Right! Federal election qualifications v. Federal election qualifications.

Whether someone is a natural born citizen is apparently not that clear cut. But even if it was, the principle is the same.

[onenote]

23. Can a state adopt its own interpretation of the term "natural born" citizen? Or is that something decided for all states

by the federal courts.

Would you really have wanted to leave it to each state to decide if Obama was eligible to be president?

The Constitution states that a person elected as a Senator or Representative must be an "inhabitant" of the state in which they are elected at the time of the election . Should every state get to come up with its own definition of "inhabitant"? Does it make sense to let one state rule that the requirement of being an inhabitant on the day of election can be satisfied by renting an apartment the day of the election while another state might rule that a person has to have had a residence in the state for at least one year up to and including the day of the election to be considered an "inhabitant" at the time of the election? While a state can enforce the age limits in the Constitution, can it demand that a candidate produce an original birth certificate to establish their age? Can they come up with their own way of counting years -- maybe Alabama will decide that someone's age for purposes of the Constitution should be measured from the date on which they became an embryo and thus became a person.

It makes no sense to let each state interpret the provisions of the Constitution that define the qualifications for seeking or holding office.

[scipan]

27. Yes, but I thought the SC would then decide for all.

Is there a problem with this idea?

[onenote]

29. It seems that there are people simultaneously complaining that the Court reached out to decide more than it needed to

and also didn't decide enough.

I'm sympathetic to those, including Kagan, Sotomayor, Jackson and Barrett, who take the position the Court did not need to, and should not have, specified that only Congress -- as opposed to the federal courts -- can decide how the insurrection clause should be interpreted/implemented/applied/enforced at the federal level.

[scipan]

34. I can't speak for everyone.

I do have a problem with the idea of just saying that "this is not the way to enforce" without saying *something* about the correct pathway (s). But I have no idea if that's a thing.

I only know that this constitutional amendment section might as well not exist ATM. And I don't see how everyone can just ignore it until congress or whoever gets off their ass and does something.

Or maybe we are supposed to try different stuff, and guess that it might be right in their eyes? It doesn't make sense to me.

[Polybius]

10. Anyone have a link to his show?

I missed it.

[scipan]

12. Here's GT Conway with a slightly different take:

Link to tweet

?t=utzAgjNiXN8yc6aSXqlbCw&s=19

[Celerity]

39. please OP this

[MichMan]

13. Didn't Tribe previously say that Trump would be disqualified?

[scipan]

14. Yes I think he believed SC would agree,

Based on the logic.

Am I missing your point?

[Zeitghost]

16. Tribe believed

He would get media exposure and attention. And he was correct.

I called this as going down 9-0 months ago. So did many others. It's not a huge surprise to anyone who was willing to set aside their feeling about Trump and look at the law in context.

[scipan]

18. You just make ad hominem accusations. Nothing about the logic of the decision. Nt

[Zeitghost]

20. The three liberal justices got it right

Their logic is sound and I agree with it fully. A state civil court is not the place to determine presidential eligibility. It is a federal power and should be determined by Congress and if needed the federal courts.

Tribe is a smart and experienced lawyer, he knew from day one where this would end up. He also enjoys the spotlight and has repeatedly found ways to get in to it. Those two things are sometimes in conflict.

[scipan]

22. Luttig too?

My actual problem is that this constitutional amendment section is now just sitting there all helpless or something. It doesn't seem right.

Did the ERA have enforcement language?

[Zeitghost]

25. It's not helpless

There are congressionally passed laws on the books today that specifically deal with insurrection and they come with a punishment of no longer being eligible for federal office, just as the 14th amendment calls for.

This was always going to require a criminal conviction under federal law or some other type of federal adjudication like impeachment.

[scipan]

28. Why only federal, and why only criminal conviction? Nt

[Zeitghost]

15. Congress has given us a pathway to enforcement

It's called the insurrection act. It establishes the federal crime of insurrection and prohibits those convicted under it from serving in public office,.

All it takes, as I and others have pointed out here since this was first brought up, is a criminal conviction.

[scipan]

17. Do you mean this?

LII U.S. Code Title 18 PART I CHAPTER 115 § 23
18 U.S. Code § 2383 - Rebellion or insurrection
U.S. Code
Notes
prev | next
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.

Then why add a constitutional amendment to accomplish the same thing?

ETA: This went Into effect in 1948. My bad. Still, why the redundancy in 1948 if ppl believed the 14th took care of it?

[Zeitghost]

19. Because a constitutional amendment

Is much harder to change.

[scipan]

21. I edited my reply. The timing changes things. Nt

[Zeitghost]

24. The 14th didn't take care of it

As the justices pointed out today. It needs enforcement mechanisms and empowers Congress to implement them. They have done so.

Theoretically they could offer other avenues of enforcement.

But as I have tried to point out since this strategy was first brought up, insurrection is a specific crime, like murder or arson. So to think this was ever going to go anywhere without a criminal conviction has always been foolish. Until there is a criminal conviction, Trump is no more an insurrectionist than OJ Simpson is a murderer.

[scipan]

32. Not sure it's a specific crime as originally understood

Nobody convicted all the ppl that fought for the Confederates but what actually happened as I understand it was the legislators refused to seat them. It would be a mess if it was tried today.

So it wasn't contingent on them being convicted of insurrection. Things were simpler then.

[Zeitghost]

37. It was a specific crime

When the 14th was drafted.

Federal prosecutors brought charges (civil and criminal) via various enforcement acts passed in the reconstruction era to unseat some local officials.

All efforts were federal, backed by legislation passed in Congress. Which is what the Supreme Court said was required in their ruling.

So while criminal charges might not be the only route, they are the most straightforward path to enforcing the clause.


What has been made clear is that it requires more than the opinion of a Sec. of State or state civil court to determine.

[William Seger]

30. Then why didn't the SC decision just say that?

You may agree with the impact, but they didn't say anything like that in justifying their decision.

[Zeitghost]

38. They said it would take congressional action

Passing a criminal statute is congressional action, as is impeachment which would be another possible method of enforcement.

Conviction under the insurrection act would be consistent with the recent ruling.

[William Seger]

40. Well, if that's what they intended to say, I think they would have just said it

Just because you correctly predicted the yes/no decision doesn't mean the SC agrees with your reasoning.

[Zeitghost]

41. Have you read the decision?

That's exactly what they said. It takes an act of Congress to enforce the insurrection clause. We have that act of Congress, it's called the Insurrection Act. It bars those convicted under it from serving in public office, just as the 14th allows.

[William Seger]

42. The decision says the states can't disqualify a candidate

If they had added, "unless convicted under the insurrection act," you'd have a valid point. As it is, they didn't go anywhere near the issue of whether TFG was actually guilty of insurrection, or what it would take to establish that.

[scipan]

26. Thanks to everyone for replying.

I didn't think this would bother me so much because all the court watching experts said it didn't look good. But I thought it would make sense.

No, I don't believe "democracy" is a good answer. There are already requirements.

[moniss]

31. First of all it is judicial BS

for the SC to look to Congress for legislation. The 14th exists on it's face and enforcement is with the DOJ and the states. For example we don't need "enabling" legislation from Congress for the 1st Amendment to be applied and adjudicated. DOJ on the Federal level and the individual states themselves bring cases about free speech for example all the time. Congress can certainly reference the 1st Amendment in legislation such as their paranoia about social media restricting conservative views but the Amendments exist on their face once ratified and the notion that each one is "dormant" in the absence of Congressional legislation is pure BS. If that doctrine of "dormancy" were accepted then Congress could negate any Amendment passed simply by not passing the so called "necessary enabling legislation".

This negating attempt is similar to the GQP attempts in the states to do the same thing with referendum items. Once the citizens pass things the legislatures in some of these states try to sit on their hands and pretend the result doesn't exist unless they pass "enabling" legislation. Many times they try to write that in such a way as to strangle any real effect of the just passed referendum.

Furthermore in the absence of anything to the contrary at the Federal level the state of Colorado has taken action to enforce the 14th Amendment within it's borders for elections which the US Constitution clearly gives it the right to conduct. So there is not an issue here of a state being more restrictive than the Federal level. Because it is the 14th Article 3 that is applied by Colorado for it's citizens. The SC trying to say well sure it's almost a part of the Constitution but not quite yet because Congress needs to say how, when and why is simply nonsense and grasping for a veil to cover their heinous ideology by claiming no interpretation of clauses or amendments can be made until a court has some "framework" from Congress to allow judicial review. There could be nothing further from the truth and to think otherwise is to lay Marbury v Madison shot dead in the street.

[scipan]

33. You make so much sense to me. However, 9-0 for result.

They have done this before many times?

Well you said it better than me.

[moniss]

35. Yes I think what we have

here is a 9-0 because disqualification in this political environment is sure to be a tit for tat if they had given it life. One of my problems with this argument of theirs is that it gives further life and foundation for those who will use this "enabling legislation" nonsense in the manner I mentioned and some of these whackos might start looking at other parts of the US Constitution/Amendments and challenging due to a "lack of enabling legislation". We once thought things like this were so legally/judicially ridiculous that we didn't think we had to take the possibilities seriously but here we are.

[scipan]

36. Nice.

They would maybe open a can of worms. And it seems to me that they would have to make a factual determination in each case. They like to leave that to the original court.