Colorado has barred Trump from the Republican primary ballot because he is an insurrectionist, but the Colorado Supreme Court has stayed that order pending an expected appeal (which was done the next business day) to the U. S. Supreme Court. The order thus remains stayed until SCOTUS rules on the issue.
Maine's Secretary of State has ruled, following an inquiry or inquest, that Trump is an insurrectionist and is thus barred from appearing on the ballot. That order was also stayed pending an expected appeal to the Supreme Court, which appeal was timely filed. That order, similarly, remains stayed until SCOTUS rules on the issue.
Both states took their respective actions because of a belief that "section 3 is self-enforcing". Really?
Well, really, no. They should have kept reading. Had they done so, they would have read down to section 5 where it says:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.That is: section 3 is not self-enforcing. Enforcement is up to Congress, not States, and there is presently no appropriate legislation produced by Congress.
SCOTUS will, if they aren't fatally compromised, deliver a 9-0 ruling that neither Colorado nor Maine nor any other State may usurp power delegated to Congress and to none other.
A slam dunk, as Alina Habba opined.
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Update (3-4-24): The Supreme Court today ruled 9-0 that states do not have the power to enforce Section 3 absent action by Congress via Section 5.
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"there is presently no appropriate legislation produced by Congress."
ReplyDeleteEver heard of the Insurrection Act of 1807? How about 10 US Code 252?
Interesting.
DeleteThe Insurrection Act of 1807 allows the President to deploy federal or federalized troops to suppress civil disorder. 10-USC-252 begins "Whenever the President considers...", thereby giving the Executive the power to correct the issue. Neither contains anything that (a) defines what an insurrection IS, or (b) provides for appropriate penalties. It's all up to the President to decide whether an insurrection is happening and what to do about it. No one in Congress, it seems, ever contemplated that the Chief Executive might commit insurrection. Beyond that, we're still left in the legal dark about the basic question: what constitutes 'insurrection'?
No, there isn't any "appropriate legislation".
Interesting that you left out 10 USC 252: "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States"
DeleteI happen to agree with you that Amendment 14, Section 3 is not "self-executing," but not because there's no legislation to hang it on.
As for ballot access, that's been a state, not federal, matter from its very beginning in the 1880s. I happen to disagree that such a thing as "ballot access" should exist, but there have in fact been cases where a presidential candidate was deemed ineligible by some state election authorities and not others.
The one that comes to mind is Roger Calero, the Socialist Workers Party candidate in 2004 and 2008. He was not charged, tried for, and convicted of not being eligible due to not being a natural-born citizen (he's from Nicaragua). Some state election authorities simply said "no, he's not eligible" and didn't put him on their ballots. Others did.
Stop it; you're being silly. I didn't leave anything out. What you quoted is irrelevant if the President is given the power to determine what situation needs correcting, and that is exactly what the law does.
DeleteAs to States denying ballot access because of binary conditions (natural born/not natural born) no one denies States' ability (or duty) to keep a clean ballot. Insurrection is not a binary condition, especially given the absence of bright-line law defining what constitutes insurrection. "I know it when I see it" is not an objective criterion.
Sorry that you find the facts so discomfiting to your carefully crafted case.
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