by Mish Shedlock, Mish Talk:
The 14th Amendment is not self-executing, said the Supreme Court, as expected in this corner. The spotlight now turns to the immunity case. I offer some thoughts.
Please consider the US Supreme Court ruling on the On Writ of Certiorari to the Supreme Court of Colorado
A group of Colorado voters contends that Section 3 of the Fourteenth Amendment to the Constitution prohibits former President Donald J. Trump, who seeks the Presidential nomination of the Republican Party in this year’s election, from becoming President again. The Colorado Supreme Court agreed with that contention. It ordered the Colorado secretary of state to exclude the former President from the Republican primary ballot in the State and to disregard any write-in votes that Colorado voters might cast for him.
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This case raises the question whether the States, in addition to Congress, may also enforce Section 3. We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.
Permitting state enforcement of Section 3 against federal officeholders and candidates would raise serious questions about the scope of that power.
Any state enforcement of Section 3 against federal officeholders and candidates, though, would not derive from Section 5, which confers power only on “[t]he Congress.” As a result, such state enforcement might be argued to sweep more broadly than congressional enforcement could under our precedents. But the notion that the Constitution grants the States freer rein than Congress to decide how Section 3 should be enforced with respect to federal offices is simply implausible.
The “patchwork” that would likely result from state enforcement would “sever the direct link that the Framers found so critical between the National Government and the people of the United States” as a whole.
For the reasons given, responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States. The judgment of the Colorado Supreme Court therefore cannot stand. All nine Members of the Court agree with that result.
Flashback February 10, 2024
I got this one correct and for the correct reasons. Please recall Expect a Supreme Court Ruling 9-0 or 8-1 in Favor of Trump, Then What?
Narrow Grounds Q&A
Q: Will the Supreme Court allow a mess in which states get to decide to knock a president from the ballot? If they did Texas would find an excuse to block Biden.
A: NoQ: Does the Supreme Court want to get entangled in whether or not Trump was involved in an insurrection?
A: NoQ: Does the Supreme Court want to stop all this state nonsense in a unanimous or near-unanimous ruling?
A: YesQ: What is the easiest way?
A: Confirm the 14th amendment is not self-executing.The court will not touch the question of whether there was an insurrection. The Supreme Court will not want to go on a fact finding mission. It will shy away from will stay away from that argument like it had an extremely contagious, deadly disease.
Nor will it touch the question of whether the president is a “officer“ as defined in the 14th amendment. There is no need to.
For Colorado to prevail, Trump needs to be guilty of an insurrection, be an officer, and the 14th amendment needs to be self-executing.
But the court will rule the 14th amendment is not “self-executing.“ It requires an act of Congress before any state can do anything. So, unless there is an act of federal Congress, and there won’t be, no state can keep anyone off a ballot on the basis of the insurrection clause.
That’s the easy way out to get everyone on board.
Then What?
Anyone who expected the court to get entangled in the definition of insurrection or other grounds of states disallowing candidates was mistaken from the beginning.
This one was a cake walk.
Trump will win this easily, likely unanimously, but that is not the end of Trump’s problems.
Is Trump Guilty?
Here’s the problem: The issue is not whether you think Trump is guilty. Rather, the issue is whether the prosecution can convince a D.C. jury that Trump is guilty.
D.C. is not the friendliest of places for Trump to face trial.
Can the prosecution convince a D.C. jury that Trump tried to remain in power despite losing the election?
Like it or not, it’s possible, if not likely, Trump gets convicted in D.C.
How did I get that correct?
I confess.
I have a constitutional expert friend who has argued cases before the Supreme Court.
Immunity Case Update
The Supreme Court has since agreed to hear the immunity case.
This is an extremely political case and therefore difficult to predict, but there is better than even chance the Court will affirm the lower court decision.
If so, Trump will head to trial.
