Orange Man Running

b4s4 Per SCOTUSblog and any number of other sources Supreme Court rules states cannot remove Trump from ballot for insurrection. This looks like the right decision, and they seem to have found a good reason too. Read the full thing if you must.

The backstory: Trump got sued off the ballot in a couple of states, on the grounds of having indulged in insurrection. I don't really buy the insurrection story1, but that doesn't really matter, because the one certainty in this case was that the Supremes were going to avoid ruling on that3.

Instead, they have cunningly begun by interpreting the fourteenth amendment, as "expand[ing] federal power at the expense of state autonomy"; having set that scene, they have the context to argue that section 3 cannot be interpreted as increasing state power, and therefore cannot give the states the power to interfere at a federal level; therefore section 5 confers on Congress, and no-one else, power to enforce those provisions. This allows them to obtain the solution that everyone of sense wanted2 - that Trump should be allowed on the ballot - without really disturbing anything else.

Getting the judgement unanimous was politically desireable4. Unfortunately SKJ couldn't resist having a last somewhat spiteful word - the oathbreaking insurrectionist is, in their own words, not needed. However their ostensible reason for writing, that the matter could be decided this way because deciding the other way would "create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles" doesn't really make sense5. Those are just generic interpretive words, they aren't actually reading from the constitution, which they have to.


Thinking about this a bit more I'm more inclined to believe the judgement right, in principle, even on originalist grounds. The purpose of the amendment, everyone agrees, was to prevent the South being re-taken-over by insurrectionists post-war. Thus the language was written, and worked, for local - state level - office. But the language doesn't work for federal-level office, because of the patch-work effect. This didn't matter at the time, and so wasn't noticed, or was quietly ignored, or never considered. Now it does come up, and the only way to rescue it - to go back to a single point of truth, rather than many - is to require federal level approval.


1. Anyone following that link will notice the distinct lack of prescience in my "part B, the twilight of the Trump. Various folks have said that Trump will remain dominating the Repubs; might even run in 2024, and so on. I don't believe it. He has not the patience, or the staying power. He will just fuck off and ghost-write his memoirs, or retreat to playing golf, or some other stupid thing". Oh well.

2. Is this obvious? I think so. Voters know what happened, or they know Trump's character, or they've seen enough sources that they have carefully chosen to feed them the viewpoint they want, and so are as informed, or as ignorant, as voters usually are. There doesn't seem to be a good reason to disenfranchise them. I think it would have been good if the Dems had said this clearly. If you'd like to read someone disagreeing, the Graun has Mark Graber saying "treason" a lot.

3. They were also going to avoid ruling on presidential immunity if they possibly could, and succeeded in that, too.

4. Not all bad takes remember that they succeeded; Manisha Sinha for CNN manages to believe that the conservative majority in the Supreme Court dunnit.

5. And on further thoughts, I suspect that "X cannot be, therefore we decide not-X" isn't valid, judicially. I think that you need positive reasons for deciding not-X. But IANAL and I've only just thought of this, so use with care.


More Facts, Please - Volokh.


Anonymous said...

When almost half of the country backs a "dickhead", to use your charming term for the Mango Mussolini, how can any reasonable government survive?

The next demagogue turns out to be the last demagogue.

Tom said...

Trump is a dickhead--he's actually much worse than a dickhead--and one reason I'm heading to Spain permanently. But there's no way a state should be able to take him off the ballot.

Anonymous said...

The 14th Amendment section 3 is dead.


Link good for 30 days.

William M. Connolley said...

> dead

It is mostly dead-letter for the obvious reason that it isn't needed. It is undead to the extent that candidates can still be barred from state office. And I don't think the prosecutions post-riot have relied on it.

I don't think the NYT's alternatives to the path the Supremese took are good. I'm not really sure what Yer Author wants: does he really want Trump off the ballot? That I think would be a bad idea.

> how can any reasonable government survive?

I think this counts as doomerism, such as Michael Mann has rightly decried in the GW arena. Analogous stuff in the political arena isn't good either.

Anonymous said...

""It is mostly dead-letter for the obvious reason that it isn't needed.""

There are other clauses in the Constitution that set bars to Presidents. "Natural born citizen" and minimum age of 35. Are those also not needed? Are those also likewise unenforceable?

Does fleeing the country count as doomerism?

William M. Connolley said...

> There are other clauses...

The minimum age remains as relevant as ever. The need for close control in the immeadiate aftermath of a civil war is long gone.

Entropic man said...

Donald Trump aka Nehemiah Scudder.


William M. Connolley said...

I don't think that counts as a particularly well-realised scenario. I read it as Revolt in 2100.

Anonymous said...

""The minimum age remains as relevant as ever."" (Not mentioned "Natural born citizen")

But is are these clause enforceable? How? By whom?

Oh, and not just against some little plebe that nobody knows.

Against someone that has the support of almost half of the population. Someone who sends mobs to threaten those that question his power.

William M. Connolley said...


By disqualification from the ballot, after inspection of the registration form which contains the candidate's date of birth.

By the registration officer.

These answers are all obvious. Why are you asking questions whose answers are obvious?

Anonymous said...

The obvious result that everyone of sense wants is that Trump starts serving 20 to 40 years in a resort with vertical blinds. Which I thought was a common expression, but Google can't find it. Oh well. The big house. The pen.

I thought the answer to the question "was Trump ineligible to hold office?" was obvious. If you follow the plain meaning of the 14th Amendment section 3 Trump is not eligible for office. Right? Which you didn't like. Oath-breaking insurrectionists are now free to run for Federal office.

The other clauses seem likely to be overturned if that is the "result that everyone of sense wanted". So do we have a Constitution, or just wing out some result that "everyone of sense wanted"?

Anonymous said...

"In my view, section 3 is self-enforcing. This follows pretty clearly from the constitutional text. Section 3 prohibits an oath-breaking insurrectionist from serving in certain offices. State officials are required by oath to respect this constitutional provision. That Congress is specifically given the authority to eliminate the bar by a two-thirds vote makes this even clearer. The section simply cannot be read as saying that only Congress or the federal government can enforce it. "


William M. Connolley said...

Yer man thinks that "the reasoning in the opinion is a disaster" and yet it isn't really clear why, other than that he has a different opinion. Certainly in political terms the decision is far from a disaster; to the contrary, it is a success: it has successfully smoothed over a difficult problem, producing a result that the vast weight of political opinion is either happy, or content, with. The only people who care are SCOTUS wonks, and a minority of people who cling to their delusions that the Supremes might declare Trump an insurrectionalist.

The statement that "The section simply cannot be read as saying..." is wrong; it can and has been read that way. It can also be read in other ways, and other people might wish to read it in other ways. But wishes don't make reality. Per Hobbes, all law requires interpretation. That's what the Supremes are for.

And, as a minor point, the reasonning in the "But it does not prohibit the state from enforcing the equal protection clause" para is broken. The Supremes reading that the amendment restricts states rights means that it binds them.

But I give yer man points for noting that the decision was understandable, and pragmatic.

In slightly more measured terms, Volokh calls the ruling a serious mistake but I don't find the reasonning persuasive.

Gator said...

Like usual, you don't really understand the USA system. Who do you think runs elections for federal office? It's the states. Who is responsible for state elections? Each state has a Secretary of State responsible for elections. It is a key part of the federal system that we end up with a patchwork of states and different rules and elections in the different states. It is ironic that SCOTUS talks about a patchwork system being bad here while gutting the Voting Rights Act that was working to ensure a more even system across all the states.

Insurrection? Maybe just plain treason? Coup? What else do you call a plan coordinated across multiple states, with the President, cabinet members, congress people, state electors (notice the states again!), right wing "militias" -- all with the documented aim of preventing the peaceful transfer of power to the new president elected in a lawful, fair and free elecetion?

William M. Connolley said...

I don't see the relevance of exactly which officials oversee the elections. The point is that state elections to state posts can be happily left to the states; whereas federal offices such as president can be plausibly seen as needing federal rules.

I'm not, FWIW, aguing that the result obtained was the only possible or only plausible one. It does seem to me to be the most sensible, and (as I said already) it seems one that the whole political system is happy with. But arguing that it is definitely wrong seems unreasonable to me.

Anonymous said...

Another view on this decision.


Link good for 14 days.

Enforcing the Constitution as written might have been a disaster.

So what's the point of a written Constitution?

William M. Connolley said...

I've kinda pre-answered that: see the update, which I put up last week.

Writings like that Atlantic piece are I think irresponsible: they have no solution of their own to offer, just criticism of anyone else, apparently designed to weaken respect for the rule of law with a view to not obeying it themselves.

As to the argument, I think it doubtful AS understands Originalism, which he seems to consider to be entirely text-based (in the course of discussion) even though he manages to quote a more sensible defn: text, how understood at the time, intent. Considering the intent of the framers I think the decision justifiable.

Anonymous said...

""Now it does come up, and the only way to rescue it - to go back to a single point of truth, rather than many - is to require federal level approval.""

The US system is based on not having a single point of truth on all topics. Some questions are left to the States, and the States can, do, and should come up with different answers. That's a feature, not a bug. As Gator said, you don't have an understanding of the US system.

On "originalist grounds", this decision was just wrong. The intent of the "framers" (*), ie the passing of the 14th Amendment, was to ban all insurrectionists from office, past present and future. Trump should have been disqualified.

Yet as a practical matter, that textual, intent based, logical and simple answer might have been a disaster.

What to do when a fixed text, and thus historic and thus fixed intent, runs into reality?

(*) Framers is a word used to describe the authors of the Constitution, not the authors of the Amendments. You don't speak American.


William M. Connolley said...

> Some questions are left to the States...

That is vacuously true. What isn't, is whether this particular decision was so left.

> The intent of the "framers" was...

I can almost admire your unbounded self-confidence, it is so charmingly colonial, the way you speak without doubt for the framers. But you don't, and so I don't.

> What to do when a fixed text...

Happily, the Supremes have delivered you a lesson in what to do; you should study it.

On another note, I've decided that I dislike commentators who are anon and have turned on the Blogger option requiring some form of registration.

Gator said...

"I don't see the relevance of exactly which officials oversee the elections. The point is that state elections to state posts can be happily left to the states; whereas federal offices such as president can be plausibly seen as needing federal rules."
Of course it matters who runs the elections - how would you have an election otherwise? So please note, again, *there are no federally run elections in the USA*. None. We don't even vote for the president, we vote for state electors that go into the electoral college, and they elect the president. The states can define how they allocate electors. There are no federal level plebiscites, there are no federal level votes on laws. Meanwhile the states all run their own voter registration, their own voting methods, their own criteria for how/when/why to kick people off of voting registration rolls. We have a patchwork of rules which red states have historically used to disenfranchise minorities. Congress passed a Voting Rights Act to counteract this, and the Supreme Court has been systematically erasing this over the last decade or so. So the Supreme Court is fine with a patchwork of state rules. This would have been just one more.
You honestly have no understanding of federalism in the USA - instead of aggressive ignorance and doubling down you could try to learn this.

"Happily, the Supremes have delivered you a lesson in what to do; you should study it."
I think the lesson most people have learned is that SCOTUS will write whatever justification seems politically expedient. I suppose that is one lesson we could learn; it's certainly not the lesson we hoped we would learn from SCOTUS.

Speaking of doubling down, you link to your 1/7 post about "one dickhead." While that might have been a reasonable post in light of what was known the day after 1/6, we know now that Trump's coup effort was much more extensive and coordinated than just one "demonstration that got out of hand." We have criminal cases ongoing, we have congressional investigations, we know *a lot more* than we knew back then. Do you still stand by that post? I mean you're in the UK - I wouldn't necessarily expect you to follow USA politics. But if you're going to comment you should at least make an effort to keep up to date.