Quick take on SCOTUS keeping Trump on the ballot

First, the 9-0 ruling meant that everybody was on board.

The biggie is "inside baseball." As I see it, per that link above from the Guardian, with these quotes:

“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,” the court wrote in an unsigned opinion. Congress, the court said, had to enact the procedures for disqualification under Section 3.

“State-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that the President … represent[s] all the voters in the Nation,” the court added.

 this means that Congress, were it to so choose, can "nationalize" voting standards for president. Yeah, states that wanted to buck that could run two elections with two sets of standards, but would probably get tired of that. It also means that vote-counting standards for president could be nationalized.

Indeed, it's arguable that the "nationalization" could extend, or be extended, to House and Senate races, too.

I'm frankly surprised that the six conservative justices didn't pull a Bush v. Gore and say that this case was not to be used as legal precedent. I mean, Thomas was part of that case himself. That said, since then, it has been used as an occasional precedent.

But, the court, even with a quasi-per curiam ruling, wasn't unanimous on the issue of how to enforce Section 3 of the 14th Amendment:

The majority opinion went on to say that the only way to enforce section 3 was by specifically tailored congressional legislation to determine which individuals should be disqualified for insurrection.But Justices Amy Coney Barrett, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson all said that finding went beyond the scope of the case, with the liberal justices specifically saying the court was shielding insurrectionists from accountability.

Barrett wouldn't go that far, but rowed her own oar in attacking that last statement.

Question for the last four: How do they envision this would be enforced in some other way than by enabling legislation? A January 2025 replay of sorts of 2021?

==

As for the ruling? Given the dogma (sic) of federalism in U.S. jurisprudence, one could argue it was wrongly decided, or, at a minimum, if the six wanted to find a reason to find in favor of Trump, this was the wrong legal reason. One wonders if a Thomas indeed wanted to find for Trump, but on other grounds, and The Umpire pushed for unanimity on this ground. At Law Dork, Chris Greidner indirectly addresses some of this.

That said, let's look at the language of Section 3:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Per the last sentence, it's arguable that the five-justice majority, while violating textualism, may have followed originalism. Going back to Confederate days, this basically was not tested by attempts to run for office until the large Congressional amnesty of the 1872 Amnesty Act (over-broadly offered, IMO) late in Grant's first term. And then Congress, by amnesty, generally removed the disqualification, then, per that link and Victor Berger's case, it could decide whether to disqualify later actors or not.

I've always said I thought the case was not "ripe" legally, the Trump case. He has not been charged with, let alone convicted of, insurrection. Blame Jack Smith for not even bringing a charge. Blame Merrick Garland, as well as Judge Aileen Cannon, for the dilatoriness of the Trump prosecution on acts connected in some way to, but not part of, Jan. 6, 2021, in general.

Via BAN, Marty Lederman also thinks, like me, that this was the right ruling but for the wrong reason. He adds that the reasoning followed was not at all an angle raised by Trump's attorneys. He doesn't raise the ripeness issue, though. He does reject the idea that the Supremes ruled that Trump cannot be removed from the ballot, period. Where Josh Blackman got that, I don't know; I don't and didn't need Lederman's help to know that's just untrue. (Exactly how one would get to a "ripeness" based issue on legal grounds, I don't know. In Colorado, since that was a lawsuit, you could do it on standing issues. But in Maine, with its Secretary of State ruling, you couldn't.)

Rick Hasen calls the ruling a "self-own" by the Umpire. He references Lederman and others, and notes the 1869 ruling that was part of the background was NOT a Supreme Court ruling. Follow various links of him for more. He agrees that a narrowly tailored ruling could have been defensible.

==

Per a commenter, the Colorado Supremes may have "adjudicated" Trump an insurrectionist. He was not tried on the charge of insurrection. Contra the first poster, insurrection is a criminal charge, and that's what matters. The issue of ballot removal being a civil charge must follow from that. Vis-a-vis the original purpose of the 14th Amendment, as noted, no Confederate official pursued running for office after the 14th Amendment and before the 1872 Amnesty Act. Ergo, whether a state court, or federal, could "adjudicate" rebellion was never decided.

==

Per same commenter, part 2?

First, the Congressional Research Service is wrong in various ways.

First of all, per this and many other analyses of federal statute, even if "rebellion" and "insurrection" aren't defined in the Constitution, and aren't clearly defined in statutory law, they're not the same. For that reason alone, this is not a self-executing issue, per my ripeness and other things. De facto, there was a rebellion since April 14, 1861, or possibly Dec. 19, 1860, in South Carolina. De facto, it was ended in 1865, and de jure, officially declared over by various statutory law, then the debt clause of the 14th Amendment and other things. Because the Confederate States of America constituted itself, specific persons could be identified with this rebellion on a de facto basis. It's quite arguably not the same with the insurrection of Jan. 6, 2021. Looking at then-president Trump's comments on that day about "go home in peace," and given that the electoral votes were counted, after delay, it would be hard to convict him of insurrection. Impossible? No. Hard? Yes. Ergo, even if insurrection and rebellion are the same. This piece linked at CRS pushes too hard. That gets me back to the original. Blame Merrick Garland for being dilatory. Blame Jack Smith for pulling punches on charges filed.

Second, Congressional membership, per the Constitutional specification of it judging the qualifications of its members, is not the same as the Executive. As noted, if members of House or Senate, on possibly more realistic grounds than on Jan. 6, 2021, want to refuse to count electoral votes for Trump next January if he has not yet been tried, let alone convicted, they can do that. In that same vein, CRS DOES note that Congress, not just the president, can call out the militia if deemed necessary. But it doesn't say how that would be achieved. Formal vote of both Houses? Just one House? The Speaker acting alone?

Related to that? This piece linked at CRS actually undercuts the thesis of the CRS piece. It notes that federal actions undertaken in the late 1860s and early 1870s were done after law, then the Amendment, were passed, and were done against sitting officeholders.

So, "cruxdaemon," I have actually read. You probably have not.

==

Also per that same commenter, I'm not going to expand this post and these responses to him to cover originalism or textualism in incredible detail, let alone go into either of those philosophies on specific yet broad issues like gun control and the Second Amendment. We're just not going there, and I remind you that I moderate comments here. 

And, no, I don't "revere" the Constitution. I'm a leftist, not a liberal. I "accept" the Constitution. THAT is something entirely different. See what I said above about the mechanism, or lack thereof, for Congress calling out the militia. And, I said, in my discussion of oral argument in the case a month ago, that the Constitution is in many ways a "clusterfuck."

==

Two final thoughts.

First, to any BlueAnon who don't get the difference between everyday-world thoughts and legal definitions and burdens of proof? Move on. I personally think Trump egged on what could be seen as an insurrection while continuing to stress that proving that as a criminal case is a high, high bar.

Second, to BlueAnon moaning otherwise? On paper, the SCOTUS ruling could be used to promote, or seen as promoting, uniformity in third-party presidential candidate ballot listing, but that will never actually happen.