Read this post by JJmil on Telegram and thought it well worth your consideration.
THOUGHTS ON SUPREME CT – TRUMP COLORADO BALLOT CASE
The oral arguments were fascinating, on the question of whether the Colorado Supreme Ct. can ban President Trump from the ballot. On every point, I think the Trump lawyers had the stronger argument, and the Justices seemed to recognize it.
The 5 main points Trump’s lawyers argued are:
1. The president is not an “officer of the United States” under Section 3 of 14th Amendment
2. Trump did not “engage in insurrection.”
3. Only Congress should decide how Section 3 can be enforced.
4. Section 3 only prohibits someone from holding office, not seeking office.
5. Colorado law doesn’t allow the state to order Trump’s removal.
Point #2 – Trump’s attorney argued that he never “engaged in insurrection. He rightly pointed out that NONE of the criteria defining an insurrection under Section 3 was met. Justice Kavanaugh made the point that there is a statute in Title 18 which prohibits someone from holding office if charged with insurrection, however, Trump has not been charged with insurrection And the Impeachment process failed to convict Trump on the charge of Insurrection because they could not substantiate Trump incited insurrection.
[Just my opinion, but this entire case is based on the false premise that there actually was an Insurrection by Trump supporters, which I think will be eventually dispelled when Trump plays a “Trump card” with the truth about Jan 6].
The justices seemed concerned about the offense element and ballot exclusion. Justice Barrett pointed out due process concerns. Justice Kavanaugh made the great point about who defines what constitutes an insurrection, or whether someone engaged in it. I think this is an important point, because the notion that a state court can unilaterally act as judge, jury & executioner to prohibit someone from running for office, without ever being charged or convicted of the crime that they are alleging, is not a good precedent.
Justice Alito also pointed out the fact that there is no historical precedent for states using Section 3 to bar federal office holders.
Point #3 – is another excellent point, because enforcement is not a self-executing state action. Section 5 of the 14th amendment specifically gives Congress the power to enforce provisions of the 14th amendment, NOT the states.
Point #4 – Justice Alito seemed to agree with Trump’s lawyer that Section 3 of the 14th Amendment prevents a person who “engaged in insurrection” from holding office, but NOT from running for office.
Point #5 – Justice Kagan and others brought up the point that one state should not be deciding for the entire nation who should be on the ballot for President – A validation of Trump’s argument that the Constitution does not allow states to seize authority and decide the 2024 presidential election.
Chief Justice Roberts made the brilliant point about the dichotomy of basing your case on the 14th Amendment, which was historically intended to restrict state power, and then turning it around to use to restrict the Federal election process. Justice Kavanaugh brilliantly pointed out that they were trying to bring the criteria in the Electors Clause in Article II, into Section 3 of the 14th Amendment, where it doesn’t exist.
But IMO, Justice Jackson hit on the MOST important point….
Point #1, the jurisdictional element that Section 3 of the 14th Amendment applies to.
Section 3 omits the President of the United States from the language. It’s very specific in enumerating the list of officers who disqualification for insurrection applies to, and it does NOT list President or Vice President. Trump’s attorney didn’t pursue that angle heavily, and Justice Jackson fully recognized that the framer’s would not have omitted such a high office from the list, in historical context, where the intent was to prevent insurrectionists from infiltrating state offices. She seemed to be trying to steer Trump’s attorney, to recognize that it was the stronger argument.
Justice Gorsuch pointed out the distinction between “holding office” and “officer” which carries a different meaning. The President appoints the officers but he is not one of them. The text of the Constitution confirms that the President is NOT an officer of the United States. An 1888 Supreme Ct ruling said, “officer” covers only appointees, not elected officials.
Chief Justice Roberts issued an opinion in 2010, in which he said:
“[t]he people do not vote for the ‘Officers of the United States.'” Rather, “officers of the United States” are appointed exclusively pursuant to Article II, Section 2 procedures. It follows that the President, who is an elected official, is not an “officer of the United States.“
Also, the oath the President takes under Article II is a completely different oath of office than officers do under Article VI.
Point #1 IMO is the winning argument, because Section 3 EXCLUDES the President. Once the threshold is established that Section 3 DOES NOT APPLY to the President of the United States, then ALL the other points (while important) become moot and irrelevant.
In order to be disqualified as a punishment under Section 3, you must first have satisfied the jurisdictional and offense elements – and I don’t think the prosecution proved either one of those. The point was made that the Impeachment clause applies to the President, not Section 3.
Although we can’t glean from the questions asked how they will rule, I think we might have a UNANIMOUS 9-0 to reverse the Colorado Supreme Ct. I believe all of the Justices understand the fundamental fact of Point #1, including the liberal Justices, and I think they may come out of their ideological corners to uphold the Constitution. It seemed to me that the Justices agreed with a lot of the defense arguments, including states inability to enforce federal actions – because that would require further legislation from Congress.
A win on this case, even if not unanimous, will immediately torpedo the ballot cases in the other 17 states that are pending, trying to remove Trump from the ballot.
This is the first so called insurrection I have witnessed that the doors were willingly opened for the patriots with a furnished guide through out the building and not a gun in sight from any of the patriots.
The Capital building has always been called the people’s building, built, bought and paid for by the people. Even the people working inside are paid for by the people. People were always welcomed before, but not that day, why?
What do they call the people that broke into the building a few years before banging on the doors and screaming in the halls? They did nothing then.
Seems some have a selective memory.
They have no video of Trump instructing anyone to behave in an illegal manner, there is only evidence of the opposite.