Not knowing US constitutional law, it seems to me the SCOTUS decision might mean that the Dems missed an opportunity when they had the house
That it’s a federal matter seems legally predictable/natural to me, and that it then falls to congress to enforce then also seems natural.
What am I missing on that?
Otherwise, what would the Dems have had to lose by passing an act when they had the house? The 14th was right there.
@maegul @politics
It’s natural that disqualification under 14A should be a federal question, but it’s nonsensical that SCOTUS would require Congress to enforce the Constitution. That was not predictable.
What the Dems did do when they had the House was impeach Trump for insurrection. If the Senate had done their job by convicting him, then, in the second phase of impeachment, he would have been barred for office for life. But, led by McConnell, they voted to let him be president again.
@barney @politics
Who should enforce it then? Seems like exactly the sort of thing a court wouldn’t want to touch so as not to look too political, no?
Unless there’s no way around the fact that the 14th effectively creates a “constitutional crime” within federal courts’ jurisdiction that can be pardoned by a congress super majority, which would have been my intuitive reading.
@barney @politics
Were there not conversations at the time about how 14A would have been enforced? None of the issues around that are new and would have been obvious at the time.
14a5 clearly states:
It’s a bit of a technicality, while trump is ineligible to be POTUS or anything else; it remains congress’s job to enforce that ineligibility
Think of a DWI- you’re not allowed to drive drunk but if cops or somebody weren’t going around watching for it, the law would be meaningless.
Section five means, as far as the rest of the 14th is concerned, congress are the proverbial cops.
Which, if you think about, makes it so that elected people are in the power of enforcement, compared to SCROTUS who are appointed for life, and obviously don’t reflect the direct will of the people.
All of that said? I disagree that states don’t have the right to control who’s on the ballot.
In some regards they already are making those decisions- you can’t just go put your name in the hat. As an example of stated making that determination; you have, for example, citizenship being considered.
Edit: it should also be noted that while the “states don’t have that authority” was unanimously decided, the liberal justices and Barrett disagreed with the rest of it, saying the majority opinion went too far.
So let’s review. Congress has to impeach someone and the Senate dismiss them.
Congress can not impeach someone who is not holding a federal job.
Therefore any president who attempts to steal the election is immune to prosecution unless they run again later and get re-elected and therefore are now eligible to be impeached and dismissed?
What am I missing
You’re arguing something that is fundamentally not relevant.
Sorry. That’s not what the SCROTUS decision is about.
Stop it. You sound like a republican.
Edit: they are saying a “specific act”. I’m not sure what they envision it detailing, but it’s not a full impeachment. If you view victor berger’s unseating as a result of his espionage conviction (which is really the only procedural precedent we’ve got,) then that’s a simple majority vote.
This is worse than I thought (I’m basing it off reading the actual ruling unfortunately my eyes must have glazed over, and I’m not all the way through-)
End edit:
The scotus decision basically just says that Colorado can’t enforce the 14th on federal employees.
Their reasoning, if I understood it right is that:
They explicitly shied away from making a decision on that. (Probably since we all fucking saw it live on Jan 6.)
That clause is at the very end of the 14th amendment, section 5, and they are cherry picking, this is extra power for congress if they want to make additional laws to help enforce it. However the 14th amendment has four sections prior to this (not just the section on insurrectionists) and these are often enforced even without specific additional laws, such as equal protection, through the courts. Sure congress can make specific laws helping to enforce equal protection, but they don’t have to, you could always sue in the court if your constitutional rights were violated.
The clause about congress may make laws is also included in other portions of the constitution. The reason it’s added is without it, it might be unclear if federal congress would be able to make any additional law pertaining to this beyond what is already written in the amendment, due to the tenth amendment which states that any powers not specifically delegated to the federal government fall to the states. This reasoning is present in the still recorded debates to get the amendment passed in the first place, when someone brought up is it necessary to even add that clause at the end. So if say congress wants to make more laws to help protect voting rights (also protected in the 14th amendment), they now have the power to do so and can cite that clause for why they are able to make this law under the constitution, but what is already written in the amendment does not vanish without more laws, it’s nonsensical.
The liberal justices argue (correctly imo) that limiting just this portion of the amendment to be non active at all unless congress makes a specific law makes no sense, is not how it was used historically, and goes too far. The conservative justices are willfully misreading this to try and shut off any potential route to using the 14th amendment as intended here, such as through the federal courts.
Your argument (and the conservatives on the supreme court) would be saying because of this clause the entire fourteenth amendment, sections 1 through 4, (and any other part of the constitution that uses this language, including the thirteenth amendment banning slavery) are totally inactive unless congress decides to make a specific law about it. So no ability to sue for violation of equal protection? No protection of voting rights unless congress decides to make a law about it? No ban on slavery if congress doesn’t get around to passing something? What kind of constitutional protection is that, if it can just be stripped away simply by congressional inaction? And how does that make any sense when for this specific clause it goes out of its way to say a 2/3rds majority of congress is needed to override it? The conservatives arugment effectively totally nullifies this and makes it a simple majority to over ride it.
There’s no reason to isolate just this portion of the amendment, and say this part is inactive without a specific law, unless they’re a partisan hack like most of the supreme court, trying to provide cover for individuals who made an attempted coup. Or more lazily just side stepping the responsibilities of the court. Even Barrett thought the other conservative justices were going too far.
And luckily for Trump, Democrats would rather let him be installed as dictator than get rid of the fucking filibuster that they use as an excuse to break campaign promises.
or, you know, just hear me out. have him hanged for an insurrectionist traitor.
But he’s rich and that sounds like consequences.
Good point.
We need a guillotine. And maybe a few pitchforks and torches.
@barney @politics
Sorry, just read 14A, sec 5:
> The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The decision seems pretty predictable to me then.
In fact it seems that this was never going anywhere and that the provisions are actually pretty weak. If an insurrectionist is popular enough to be a plausible presidential candidate, then they’re not unlikely to have significant support in congress.
Sorry, but what part of section 5 prohibits any other enforcement? It just means federal laws aimed at preserving the other sections are constitutional.
@maegul @politics
Not at all. The rest of the 14th Amendment is all self-executing. E.g. if your right to due process has been violated, you can sue, without needing Congress to pass a law that specifically protects you. As the 4-justice SCOTUS minority said, it doesn’t make sense to require legislation for just this one section.
Anyway, if the Dem-controlled House had passed a bill declaring Trump ineligible for office, Senate Republicans would have filibustered it. So it’s a moot point.
@barney @politics
Yep that so makes sense to me now. Thanks! Seems like a petty bad decision then.
@maegul @politics
No, it’s fine.