Justices are expected to decide at least one case. Signs strongly point to resolution of the case from Colorado that threatens to kick him off some state ballots.
Yet the Court continues on to resolve questions not before us. In a case involving no federal action whatsoever, the Court opines on how federal enforcement of Section 3 must proceed. Congress, the majority says, must enact legislation under Section 5 prescribing the procedures to “ ‘ “ascertain[ ] what particular individuals” ’ ” should be disqualified. Ante, at 5 (quoting Griffin’s Case, 11 F. Cas. 7, 26 (No. 5,815) (CC Va. 1869) (Chase, Circuit Justice)). These musings are as inadequately supported as they are gratuitous.
To start, nothing in Section 3’s text supports the majority’s view of how federal disqualification efforts must operate. Section 3 states simply that “[n]o person shall” holdcertain positions and offices if they are oathbreaking insurectionists. Amdt. 14. Nothing in that unequivocal bar suggests that implementing legislation enacted under Section 5 is “critical” (or, for that matter, what that word means in this context). Ante, at 5. In fact, the text cuts the opposite way. Section 3 provides that when an oathbreaking insurrectionist is disqualified, “Congress may by a vote of two-thirds of each House, remove such disability.” It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation. Even petitioner’s lawyer acknowledged the “tension” in Section 3 that the majority’s view creates. See Tr. of Oral Arg. 31. Similarly, nothing else in the rest of the Fourteenth Amendment supports the majority’s view. Section 5 gives Congress the “power to enforce [the Amendment] by appropriate legislation.” Remedial legislation of any kind, however, is not required. All the Reconstruction Amendments (including the due process and equal protection guaranteesand prohibition of slavery) “are self-executing,” meaning that they do not depend on legislation. City of Boerne v. Flores, 521 U. S. 507, 524 (1997); see Civil Rights Cases, 109 U. S. 3, 20 (1883). Similarly, other constitutional rules of disqualification, like the two-term limit on the Presidency, do not require implementing legislation. See, e.g., Art. II, §1, cl. 5 (Presidential Qualifications); Amdt. 22 (Presidential Term Limits). Nor does the majority suggest otherwise.
The majority position doesn’t have to make sense, they just needed to be the majority. This is the legal phase of fascism, they won’t be held accountable. In the majority, 3 of them were appointed by Trump, 1 has an insurrectionist wife, this outcome was really never in doubt.
They couldn’t get Barret to sign on with the majority on this one, but they still managed to squeeze it through. Guess it left too much of a bad taste in her mouth.
Barrett’s concurring opinion is just “I agree with everything they said, and also I’m so glad we could all agree on this”. The concurring opinion from Sotomayor/Kagen/Jackson has actual substance to it.
Oh I read it. It was more like “I don’t agree with their reasoning, but can’t we all just get along.” As in, she wouldn’t even touch what she didn’t agree with even though it’s obvious. She writes incredibly shitty opinions.
It says only Congress can reinstate him. It says nothing about Congress removing anyone from candidacy, because the “shall” language is self-executing.
The Constitution empowers Congress to prescribe how
those determinations should be made. The relevant provi-
sion is Section 5, which enables Congress, subject of course
to judicial review, to pass “appropriate legislation” to “en-
force” the Fourteenth Amendment. See City of Boerne v.
Flores, 521 U. S. 507, 536 (1997). Or as Senator Howard
put it at the time the Amendment was framed, Section 5
“casts upon Congress the responsibility of seeing to it, for
the future, that all the sections of the amendment are car-
ried out in good faith.” Cong. Globe, 39th Cong., 1st Sess.,
at 2768
So they say Congress needs to pass legislation to enforce this, and that is the only way to take Trump off the ballot.
The concurring opinion from Sotomayor/Kagen/Jackson does not like this at all:
Although only an individual State’s
action is at issue here, the majority opines on which federal
actors can enforce Section 3, and how they must do so. The
majority announces that a disqualification for insurrection
can occur only when Congress enacts a particular kind of
legislation pursuant to Section 5 of the Fourteenth Amend-
ment. In doing so, the majority shuts the door on other po-
tential means of federal enforcement. We cannot join an
opinion that decides momentous and difficult issues unnec-
essarily, and we therefore concur only in the judgment.
Yep. I read section 5 for myself. It’s a twisted way to read it that Congress is supposed to be the executor of the “shall” language in section 3, specifically through legislation. It just says Congress shall have the power to legislate the 14th Amendment. It does not say Congress shall legislate 14th amendment issues.
But that’s kind of been their MO the whole time. “I don’t wanna rule, so I’ma hide behind Congress and say it’s their job.”
It seems pretty straightforward to argue congress needs to create a mechanism to label someone as having engaged in insurrection. All judges agreed a single state making that determination using their own rules isn’t sufficient.
I stand by what I said. They’re hiding behind Congress instead of making a decision. They didn’t seem to have a problem dusting off precedent from 150 years ago to make sweeping changes to how the country operates, before.
But now, when it comes to actually defending the self-executing portions of the Constitution, it’s suddenly too hard, and it’s Congress’s job. Bunch of fucking cowards.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Which is a repeating of the Constitution in the case of section 3, which says states administer elections unless there’s a specific law from Congress. Section 5 uses no exclusionary language to say states cannot enforce the amendment.
No one read beyond the insurrection clause, sec 5 of the 14th says only Congress can remove him
The majority position doesn’t have to make sense, they just needed to be the majority. This is the legal phase of fascism, they won’t be held accountable. In the majority, 3 of them were appointed by Trump, 1 has an insurrectionist wife, this outcome was really never in doubt.
They couldn’t get Barret to sign on with the majority on this one, but they still managed to squeeze it through. Guess it left too much of a bad taste in her mouth.
Barrett’s concurring opinion is just “I agree with everything they said, and also I’m so glad we could all agree on this”. The concurring opinion from Sotomayor/Kagen/Jackson has actual substance to it.
Oh I read it. It was more like “I don’t agree with their reasoning, but can’t we all just get along.” As in, she wouldn’t even touch what she didn’t agree with even though it’s obvious. She writes incredibly shitty opinions.
She isn’t there on her merits.
It says only Congress can reinstate him. It says nothing about Congress removing anyone from candidacy, because the “shall” language is self-executing.
Weird how “shall” means something totally different in the 2nd amendment than anywhere else in the document…those wacky founders!
This is from the main opinion:
So they say Congress needs to pass legislation to enforce this, and that is the only way to take Trump off the ballot.
The concurring opinion from Sotomayor/Kagen/Jackson does not like this at all:
Yep. I read section 5 for myself. It’s a twisted way to read it that Congress is supposed to be the executor of the “shall” language in section 3, specifically through legislation. It just says Congress shall have the power to legislate the 14th Amendment. It does not say Congress shall legislate 14th amendment issues.
But that’s kind of been their MO the whole time. “I don’t wanna rule, so I’ma hide behind Congress and say it’s their job.”
It seems pretty straightforward to argue congress needs to create a mechanism to label someone as having engaged in insurrection. All judges agreed a single state making that determination using their own rules isn’t sufficient.
I stand by what I said. They’re hiding behind Congress instead of making a decision. They didn’t seem to have a problem dusting off precedent from 150 years ago to make sweeping changes to how the country operates, before.
But now, when it comes to actually defending the self-executing portions of the Constitution, it’s suddenly too hard, and it’s Congress’s job. Bunch of fucking cowards.
No. It says -
Which is a repeating of the Constitution in the case of section 3, which says states administer elections unless there’s a specific law from Congress. Section 5 uses no exclusionary language to say states cannot enforce the amendment.