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The U.S. Supreme Court Monday morning handed down a unanimous 9-0 decision determining the State of Colorado cannot kick Donald Trump off the presidential ballot, but legal and constitutional experts caution it’s not quite as unanimous as initial reports state, and there’s a lot the justices did, and did not do, that makes this ruling important, but also, makes some extremely concerned.
First, Trump stays on the 2024 ballot and any other current challenges to his ability to remain on other states ballots are likely, effectively dead.
“It’s a win for Trump,” notes former Obama acting Solicitor General Neal Katyal. “At the same time, remember that the Supreme Court’s decision today did not do what Donald Trump had asked: clear him of insurrection.”
That’s critical.
“The Colorado court found that he so was, and Trump had an entire section of his SCOTUS brief arguing he was peaceful on 1/6,” Katal continues. “The Court didn’t do what he asked; it did not clear him. And the act’s decision leaves space for his criminal trial about Jan 6 to proceed, should the Court dispose of the other Trump immunity case quickly in the Spring (as it can and must).”
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Professor of law and popular MSNBC and NBC News legal contributor Joyce Vance points out that the Court specified Trump is a “former” president, and more importantly, “the Court didn’t say he was not an insurrectionist.”
“Former” President Trump will certainly grate on the former president as will the fact the Court didn’t say he was not an insurrectionist pic.twitter.com/xMmfKDXRjJ
— Joyce Alene (@JoyceWhiteVance) March 4, 2024
Noted civil rights and national security journalist Marcy Wheeler quickly responded to the decision, observing that Special Counsel “Jack Smith could — today — charge Trump with inciting insurrection in response to this order.”
“It is,” Wheeler adds, “the one Constitutional means to disqualify him, according to this order.”
Meanwhile, Katyal also notes that the Supreme Court justices “took 25 days to render this decision. Anything longer in the immunity case would be deeply inconsistent with what it did here.”
Many experts pointed to the portion of the Supreme Court’s ruling that found for the 14th Amendment’s declaration that those who have engaged in insurrection cannot hold office can only be decided by Congress — something the 14th Amendment doesn’t specifically state.
NBC News and MSNBC legal analyst Glenn Kirschner, a former federal prosecutor of 30 years, wrote: “Supreme Court rules that an adjudicated insurrection[ist] can still be president, unless Congress acts. Not unexpected, but more proof that our institutions of government are not up to the task of saving American democracy. Once again, it’s up to We The People.”
National security attorney Brad Moss appeared even more vehement than Kirschner. He declared: “This is awesome. Constitutional amendments are meaningless unless Congress acts to enforce them. To hell with the 22nd amendment.”
The 22nd Amendment, ratified in 1951, essentially says you can only be president for two terms, depending one certain situations: “No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.”
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(So, if a vice president become president due to the incapacitation, resignation, or death of a president, they could run for president and be elected twice, depending on when they first became President.)
Others pointed to that provision, arguing that former President Barack Obama could in theory serve as president again, unless Congress stops him – based on today’s SCOTUS ruling.
“Anyone have a good point of contact for former President Obama? I have a legal memorandum to send him,” Moss quips.
“Even better,” Moss continues sardonically, “as it just occurred to me: you know that whole requirement in Section 1, Article II of the Constitution, that the president has to be a natural born citizen? Guess what? Absent Congressional action, that provision is meaningless.”
“So under the Court’s legal analysis,” he adds, “if Trump wins but Democrats take the House and hold the Senate, Congress can invalidate Trump’s victory and throw us into chaos? Oh goodie.”
Moss still was not done.
“Here is the craziest part of the majority ruling in the Trump ballot case: it places the burden on federal district attorneys, who are appointed by the incumbent president, to somehow initiate a civil action against the incumbent president for holding office in violation of Section 3 of the Fourteenth Amendment. That way, madness lies.”
As for that “unanimous” claim, professor of law and former U.S. Attorney and Deputy Assistant Attorney General Harry Litman points out the three liberal justices, Sotomayor, Kagan, and Jackson, “concur on ground that court goes too far in deciding future possible cases. Barrett similarly but more narrowly says court shouldn’t opine that federal legislation the only way to enforce section 3.”
Or, as The New Republic’s Greg Sargent, explains, Kagan, Sotomayor and Jackson, “all dissent from the view that only Congress can disqualify.”
Litman continues to tear apart the “unanimous ruling” claim.
“Court spoke in one voice on result, but on rationale hardly a kumbaya moment. The 5 [conservative justices] restricted future enforcement of §3 of the 14th Am[endment] in ways the other 4 (3 libs + Barrett) felt unnecessary and unwise. And the 3 libs cited Breyer dissent in Bush v Gore–the ultimate bete noire.”
Professor of law Anthony Michael Kreis put it even more succinctly: “Originalism: but only when we like it!”
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