States Dumping Trump From Ballots Would Spell Disaster For The Republic, And SCOTUS Knows It
Actions come with consequences. That’s the root of human experience, but it’s a maxim the leftists behind the Colorado Supreme Court’s decision to kick former President Donald Trump off the Centennial State’s presidential primary ballot absolutely ignored. And their failure to consider the disastrous consequences might just be the leading reason why they are doomed to fail.
During Thursday’s oral arguments in Trump v. Anderson, U.S. Supreme Court justices — on the right and the left — peppered Jason Murray, attorney for the anti-Trumpers who brought the Colorado case, with questions of “consequentialist considerations.” Said considerations include the likelihood of political reprisals.
“Counsel, what do you do with the, what would seem to me to be plain consequences of your position?” Chief Justice John Roberts asked Murray.
“If Colorado’s position is upheld, surely there will be disqualification proceedings on the other side. And some of those will succeed. Some of them will have different standards of proof. Some of them will have different rules about evidence,” Roberts asserted. “I would expect that, you know, a goodly number of states will say, whoever the Democratic candidate is, you’re off the ballot. And others for the Republican candidate, you’re off the ballot.”
“It will come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence.”
Murray shrugged off the central question of truth and consequences, insisting over and over again that Trump “engaged in insurrection.” The word and its fellow noun “insurrectionist” turned up 62 times in Thursday’s oral arguments, making it a potentially deadly drinking game for those daring to consume at each utterance of the “I” word.
Moreover, Murray shrugged off the chief justice’s predictions, insisting reprisal actions to remove candidates from the ballot would amount to “frivolous applications of a constitutional provision.” Of course, GOP presidential frontrunner Trump, his supporters, and an army of legal experts believe the Colorado lawsuit demanding he be removed from the ballot because of a specious reading of the 14th Amendment’s “insurrection clause” is quite frivolous.
Roberts acknowledged as much.
“It seems to me you’re avoiding the question, which is other states may have different views about what constitutes insurrection,” the chief justice scolded. Murray experienced a long day of being taken to task.
‘Awfully National’
One of the consequential problems with the Colorado ruling, Roberts and his colleagues rightly predicted, is that the Supreme Court would have to clean up the messy details if the Colorado Supreme Court ruling is allowed to stand. And the high court would have to “develop rules for what constitutes an insurrection.”
Murray and the leftists he represents argue there’s no need. It’s all cut and dried, spelled out in Section 3 of the 14th Amendment. The provision was written shortly after the Civil War to deal with rebels who participated in a bloody war of secession. Section 3 prohibits anyone who has “previously taken an oath” to uphold the Constitution as an officer of the United States and “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” from holding a list of federal and state offices. It’s all there in the “insurrection clause,” Murray insists.
Except it’s not.
Trump’s legal team argues that the list of offices barred does not include presidents or vice presidents, because the top executive branch posts are not considered to be officers of the United States as laid out in the Constitution. They also argue that Congress has yet to pass a law to enforce Section 3, something that Supreme Court Justice Salmon P. Chase in 1869 found must happen in order for the provision to take effect.
Trump attorney Jonathan Mitchell argued there’s no need to consider the ramifications “because the law is clearly on our side.”
But the justices had consequences on their minds. It’s hard to escape the disenfranchising effect of letting Colorado — or any other state — boot a presidential candidate from the ballot.
Obama-appointed Justice Elena Kagan questioned Murray about the federal implications of disqualification. The attorney clerked for Kagan in his early law career.
“Maybe put most boldly, I think that the question that you have to confront is why a single state should decide who gets to be president of the United States,” the justice said. “In other words, you know, this question of whether a former president is disqualified for insurrection to be president again is, you know, just say it, it sounds awfully national to me. So whatever means there are to enforce it would suggest that they have to be federal, national means.”
Who Decides Who’s an Insurrectionist?
While the liberals on the court raised some pointed questions about the efficacy of the novel Section 3 argument, they just couldn’t seem to quit their unveiled contempt for Trump and their apparent preconception that Trump is an insurrectionist.
“So why would this not be an [insurrection] — what is your argument that it’s not? Your reply brief says that it wasn’t because, I think, you say, it did not involve an organized attempt to overthrow the government. So —,” Justice Ketanji Brown Jackson asked Mitchell.
“That’s one of many reasons. But, for an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence. And this riot that occurred —,” the attorney replied.
“So your point is that a chaotic effort to overthrow the government is not an insurrection?” Jackson asked, cutting the attorney off.
“No, we didn’t concede that it’s an effort to overthrow the government either, Justice Jackson. None of these criteria were met,” Mitchell responded before Jackson cut him off again shortly afterward.
Michael O’Neill, Vice President of Legal Affairs at the Landmark Legal Foundation, said the justices were clearly concerned with the consequences question, particularly the daunting uniformity issue.
“The advocates of the Colorado case are attempting to broaden the authority of the states to set national policy,” O’Neill said. “If the Colorado Supreme Court decision were to be upheld you would conceivably and logically have different standards of what constitutes an insurrection under Section 3 of the 14th Amendment based on state interpretations.”
And clearance for the states to disqualify candidates based on their individual interpretation of insurrection could lead to ballot challenges on any number of charges. Landmark wrote an amicus brief in the SCOTUS case principally arguing that the Colorado decision would enable partisan officials to “disqualify political opponents by unilaterally declaring them insurrectionists.”
Was Vice President Kamala Harris an insurrectionist when she endorsed the violent Black Lives Matter-led protests/riots that claimed lives and burned down portions of cities, the brief asks? Was U.S. Rep. Jamaal Bowman, D-N.Y., acting the part of insurrectionist when he pulled a fire alarm on Capitol Hill while Congress debated a spending bill to avoid a government shutdown?
Did Senate Majority Leader Chuck Schumer, D-N.Y., attempt to incite violence when he stood outside the Supreme Court and in a pro-abortion rant declared, “I want to tell you [Justice Neil] Gorsuch, I want to tell you [Justice Brett] Kavanaugh. You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”
O’Neill sounded confident following Thursday’s oral arguments, saying he’s optimistic the Supreme Court will overturn the Colorado court’s ruling. The justices’ line of questioning — particularly from the liberal justices — on the consequences of letting the state court’s decision stand bolstered his confidence.
“I’m fairly optimistic it could be a 9-0 ruling,” the attorney said.
Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin.
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