What happens if SCOTUS kicks Trump off the ballot? An enlightening perspective.

[keopeli]

I thought this comment by Kimberly Wehle, a professor at the University of Baltimore School of Law, was particularly enlightening:


If the justices were truly concerned about the legitimacy of the Supreme Court as an institution, they would not have taken this case in the first place. It’s conceivable that enough red-leaning states could join Colorado and Maine to decide, under their own election laws, that Trump is disqualified from their respective states’ presidential ballots and so as to deprive him of 270 Electoral College votes well before Nov. 4. In the name of federalism and judicial conservatism, stepping aside from this one and letting state law — and state legislators’ voters — work it out would have been a more prudent course for the court to take.

......

Consider the three biggest legal issues the Colorado case presents and the fallout that would ensue if the court decides to keep Trump on the ballot. First: Is the president an officer of the United States under Section 3? If the court rules that no, presidents don’t qualify under Section 3, incumbent presidents seeking a second term can employ the massive law enforcement, military and investigative powers of the office to stay in power knowing that insurrection or rebellion by former presidents is constitutionally impossible. Second: Was Jan. 6, 2021 an insurrection? If the court rules no, it was something less serious than that, then future presidential candidates or former presidents can plan and stage a redo of that deadly day knowing that the Constitution, again, cannot make any difference in guiding their behavior. Third: Did Trump engage in insurrection on Jan. 6? If the court holds no, he didn’t do enough to qualify as engagement, then future insurrectionists can remain in the shadows, masterminding a coup rather than joining the rioters with weapons in the street, knowing that it’s okay with the Constitution so long as presidential hand-to-hand combat is not involved.

Which leaves the biggest question of all: If Jan. 6 was not an insurrection, and Trump didn’t engage in it, then what’s left of Section 3 itself? The obvious answer is: Probably nothing. By keeping Trump on the ballot using one of the arguments above, the Supreme Court would have effectively repealed a live section of the Constitution without bothering with the supermajorities in both houses of Congress and state legislatures that the Constitution requires for amendments to that document.

Only one decision will strengthen the Constitution, our democracy and the rule of law. The mantra “no more Kings” should go for everyone — including Supreme Court justices. And presidents.

https://www.politico.com/news/magazine/2024/02/05/predicting-the-fallout-if-the-supreme-court-throws-trump-off-the-ballot-00139381

(Her comment is at the bottom of the page.)

[ProudMNDemocrat]

1. Did not then Justice Antonin Scalia

Write something to the effect that the President WAS indeed an officer of the United States when the oath of Office is recited at the Inauguration?

What am I missing here?

[Happy Hoosier]

5. You're missing that the right wing of the court are dishonest fucks. NT

[Bludogdem]

10. And Chief Justices Roberts wrote in a case from 2010

Last edited Tue Feb 6, 2024, 12:44 PM - Edit history (1)

“ The people do not vote for the “Officers of the United States”


https://www.law.cornell.edu/supct/html/08-861.ZO.html

Alexander Hamilton from Federalist 69

“The President… and to commission all officers of the United States.''

“The President is to nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution.”


“The President of the United States would be an officer elected by the people”

https://avalon.law.yale.edu/18th_century/fed69.asp

And the Appointments Clause

Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.


“Officers of the United States” is term of art. They are appointed by the president or congress they aren’t elected.

In the early 1800’s the Senate debated as to whether they are “officers of the United States”. They decided they are not.

[bucolic_frolic]

2. True, frightening. Anything but NO erodes Constitutional 14A Law to zilch.

[Think. Again.]

3. I don't understand...

...how a person who holds the Office of the President could not be an officer.

Why is this even a question???

[Fiendish Thingy]

4. Letting states enforce the constitution piecemeal is a recipe for chaos

There must be a federal, not state, determination of whether Trump is disqualified from being president again.

Since the plaintiffs are basing their arguments primarily on the 14th amendment, and not on Article I, SCOTUS must rule, not just on the question of whether Colorado can remove Trump from the ballot, but whether Trump is disqualified nationwide.

[Shrek]

7. A potential problem is that the election for President occurs in the Electoral College

Until an Elector actually shows up at a state capital and tries to vote for Trump, the question of his disqualification is moot.

[Fiendish Thingy]

8. That's why a federal ruling is critical

If SCOTUS rules Trump is disqualified nationally, then any and all Trump electors could not be certified, or if certified by scofflaw governors, would be overturned by the courts.

It’s uncharted waters to be sure, all the more reason SCOTUS must play a role.

A federal ruling would provide cover to all swing states (at least those with Dem governors and Sec’s of State) to remove him from the ballot and block any possibility of Trump electors being appointed, ensuring his defeat. This would cover AZ, MI, PA, WI(?) as well CO, ME and most if not all the other blue states.

Unfortunately, I don’t expect SCOTUS to rule that Trump is disqualified.

[Scrivener7]

6. If only they cared about upholding the law.

Instead they like to use it as a cudgel.

[getagrip_already]

9. Well, other issies aside, it would certainly open up

The courts schedules for when to hold trials. If he can no longer hold office, a judge doesn't have to take his first amendment rights to campaign into consideration in holding trials or handing out contempt or sentencing.

You know that's why he has gone to the fallback of "I can still run, and the congress can decide later".

It's another ploy to stay out of jail until after the election when he could be pardoned, at least federally if a republican won.