Your prediction of SC reaction to the CO disqualifying Trump ruling?

[SteveRogers]

There’s a dozen different ways the Court could parse the question of how to enforce the insurrection clause of the 14th amendment. And we’re truly in untested waters, so any traditional doctrine or precedent that you might expect a particular justice to follow is pretty much out the window. But I think one thing that’s being overlooked in the shuffle here is that there’s a pretty strong textual argument that the clause doesn’t apply to the office of the President in the first place. So that’s your path of least resistance if the Court feels like nipping the whole thing in the bud.

[SteveRogers]

Gets overturned 6-3, along party lines. I don't eeven expect Roberts to side with the liberals here.

In addition to Roberts, I would be rather surprised if Kagan goes along with this.  Most likely, I think they find some way to reverse 9/0 without reaching the merits.  8/1 with Sotomayor as the dissenter also wouldn't shock me if it reaches the merits.

I would be pretty surprised if any of the conservative judges go along with this, but if there's a wildcard it would be Gorsuch with a concurrence about states' rights and the word "conviction" not appearing in Section 3 of the 14th Amendment.  

This is a case about the interpretation of the federal constitution. There is no plausible state's rights angle

On the contrary, the Constitution grants the states wide latitude in determining how their electors are appointed. So there is certainly a plausible argument that the states have the authority to adjudicate the qualifications of presidential candidates when it comes to policing their own ballots.

[SteveRogers]

Gets overturned 6-3, along party lines. I don't eeven expect Roberts to side with the liberals here.

In addition to Roberts, I would be rather surprised if Kagan goes along with this.  Most likely, I think they find some way to reverse 9/0 without reaching the merits.  8/1 with Sotomayor as the dissenter also wouldn't shock me if it reaches the merits.

I would be pretty surprised if any of the conservative judges go along with this, but if there's a wildcard it would be Gorsuch with a concurrence about states' rights and the word "conviction" not appearing in Section 3 of the 14th Amendment. 

This is a case about the interpretation of the federal constitution. There is no plausible state's rights angle

On the contrary, the Constitution grants the states wide latitude in determining how their electors are appointed. So there is certainly a plausible argument that the states have the authority to adjudicate the qualifications of presidential candidates when it comes to policing their own ballots.

Colorado did not rule on that basis, that is not an issue at controversy here. Colorado cannot say the 14th amendment means a different thing in their state than it does elsewhere.

Actually, the first question that the Colorado Supreme Court ruled on was whether or not the Colorado Election Code granted Colorado state courts jurisdiction to assess the qualifications of presidential candidates. They held that it did. Conversely, the Michigan courts just held that Michigan law does not authorize election officials to keep candidates off the (primary) ballot on the basis of Constitutional disqualification. There is no inherent contradiction here as these are questions of state law.

[SteveRogers]

There’s a dozen different ways the Court could parse the question of how to enforce the insurrection clause of the 14th amendment. And we’re truly in untested waters, so any traditional doctrine or precedent that you might expect a particular justice to follow is pretty much out the window. But I think one thing that’s being overlooked in the shuffle here is that there’s a pretty strong textual argument that the clause doesn’t apply to the office of the President in the first place. So that’s your path of least resistance if the Court feels like nipping the whole thing in the bud.

I struggle to imagine the Court going down that route. It does offer a possible off-ramp, but would Roberts, for one, really want to resolve this based on a strained reading of the Constitution that concludes the President is an office-holder but not an "officer" and the fact that the President swears to "preserve" the Constitution rather than "support" it? It gets you out of the immediate controversy, but it's also a prime example of why people hate lawyers.

I agree that the “preserve” vs “support” argument is unpersuasive. But the bigger problem is that Section 3 specifically identifies electors for President and Vice President but omits the President and Vice President themselves, which requires us to read the presidency into “any office” in order to apply. It’s either a very odd or very intentional omission.

[SteveRogers]

Gets overturned 6-3, along party lines. I don't eeven expect Roberts to side with the liberals here.

In addition to Roberts, I would be rather surprised if Kagan goes along with this.  Most likely, I think they find some way to reverse 9/0 without reaching the merits.  8/1 with Sotomayor as the dissenter also wouldn't shock me if it reaches the merits.

I would be pretty surprised if any of the conservative judges go along with this, but if there's a wildcard it would be Gorsuch with a concurrence about states' rights and the word "conviction" not appearing in Section 3 of the 14th Amendment.  

This is a case about the interpretation of the federal constitution. There is no plausible state's rights angle

On the contrary, the Constitution grants the states wide latitude in determining how their electors are appointed. So there is certainly a plausible argument that the states have the authority to adjudicate the qualifications of presidential candidates when it comes to policing their own ballots.

Colorado did not rule on that basis, that is not an issue at controversy here. Colorado cannot say the 14th amendment means a different thing in their state than it does elsewhere.

Actually, the first question that the Colorado Supreme Court ruled on was whether or not the Colorado Election Code granted Colorado state courts jurisdiction to assess the qualifications of presidential candidates. They held that it did. Conversely, the Michigan courts just held that Michigan law does not authorize election officials to keep candidates off the (primary) ballot on the basis of Constitutional disqualification. There is no inherent contradiction here as these are questions of state law.

Whether or not states can allow or not allow ineligible candidates is not up in the air, no, Colorado has a mechanism to remove ineligible candidates and Michigan does not. If the Supreme Court upheld Colorado's ruling, Trump would remain on the ballot in Michigan, because there's no reason a state can't allow an ineligible candidate on its ballot and nobody claimed they couldn't. But for Colorado's mechanism to kick in, the candidate has to actually be ineligible. That is a constitutional question that must have the same answer in each state. The Court cannot make a decision on whether or not the Colorado Supreme Court has authority to do this without deciding on the merits of the Insurrection Clause, which would be binding on all 50 states

But here’s the rub: Let’s say SCOTUS weighed in tomorrow and told us what Section 3 of the 14th Amendment means. They might give us a definition of what “insurrection” means and the necessary burden of proof and due process protections required in order for a candidate to be disqualified from office on that basis. They might uphold or overturn the Colorado decision based on whether or not they believe the necessary burden was met. The Court could still punt on the question of whether or not Trump is disqualified because the Supreme Court is not a trial court that makes factual determinations. We do not have a single body for making nationwide factual determinations on presidential candidate qualifications because we do not have a nationwide presidential election. We in fact have 51 separate elections to appoint presidential electors.

SCOTUS could rule that it’s ultimately a political question for Congress to decide whether or not to accept any electoral votes cast for Trump as valid. But that doesn’t preclude the Court from also holding that the States have the right to adjudicate such claims as state law allows to determine Trump’s ballot access in the first place.

This is not necessarily how I think the Court will decide the case. But it’s one of many rabbit holes the Court could go down.

[SteveRogers]

There’s a dozen different ways the Court could parse the question of how to enforce the insurrection clause of the 14th amendment. And we’re truly in untested waters, so any traditional doctrine or precedent that you might expect a particular justice to follow is pretty much out the window. But I think one thing that’s being overlooked in the shuffle here is that there’s a pretty strong textual argument that the clause doesn’t apply to the office of the President in the first place. So that’s your path of least resistance if the Court feels like nipping the whole thing in the bud.

I struggle to imagine the Court going down that route. It does offer a possible off-ramp, but would Roberts, for one, really want to resolve this based on a strained reading of the Constitution that concludes the President is an office-holder but not an "officer" and the fact that the President swears to "preserve" the Constitution rather than "support" it? It gets you out of the immediate controversy, but it's also a prime example of why people hate lawyers.

I agree that the “preserve” vs “support” argument is unpersuasive. But the bigger problem is that Section 3 specifically identifies electors for President and Vice President but omits the President and Vice President themselves, which requires us to read the presidency into “any office” in order to apply. It’s either a very odd or very intentional omission.

I don't think it's odd at all. If you want Section 3 to apply to electors, you have to specifically identify them because electors are not officers. Senators and Representatives are likewise not officers (the Constitution only refers to "members"), and so they must be listed separately. But Article II repeatedly refers to the President as holding an "Office," so there is no need to single out the Presidency. No one thinks, for example, that the Impeachment Clause's reference to "any Office of honor, Trust or Profit under the United States" intentionally excludes the Presidency.

I tend to agree with your reading, but I also think it would’ve been really, really helpful if the drafters of the 14th had specifically singled out the presidency. It’s not as though this debate was unforeseeable.

[SteveRogers]

Not sure how the Supreme Court could resolve this on standing. Article III is not a barrier to standing in state court and the Constitution, of course, still applies there.

Unsure how any "Republican voter" is harmed by the decision of the RNC to run any candidate. Bascially there is a reason they had "Republican voters" file this suit.

But yes this would be two part

1. State Courts can't do this at all
2. Only the Attorney General(or a specific set off officials) can bring enforcement action - otherwise the proper forum is the same for ruling individuals ineligible for Congress. Congress

The Supreme Court cannot allow this to ever happen again. I am almost certain their number one priority will be killing Section III, not anything to do with Donald Trump. What is going on right now is an existential threat to the court system and it is obvious from the behavior of the 5th Circuit and everyone's favorite Texas district judge that the claims "its self evident this only applies to 1961 AND Jan 6th, 2021" will not stop the court from having to kill it later if not now.

Seriously, if Trump's disqualification stands what about any senior officials who took part in efforts to overturn the election? What about Senators who voted for the challenges? Mike Lee who was in discussions?

Is the Speaker of the House, third in line for the Presidency, ineligible?

There is no way to restrict this to Donald Trump and therefore any ruling pretty much has to ensure no court will try to disqualify anyone under Section III going forward for Jan 6th.

There's a pretty easy way for the court to handle this sort of thing without gutting Section III completely.

Congress has already defined "insurrection" under 18 USC § 2383. One of the penalties even outlined in this statute is disqualification from office.

So the court can simply rule that if someone is convicted under 18 USC § 2383, they are disqualified for public office. If they are not, then it doesn't apply. Pretty simple and binary.

Well except that if you read 18 USC  § 2383 it attaches a specific criminal penalty to “insurrection” but doesn’t actually do anything to define that term. So even if a candidate was convicted by a jury of that statute, we’d still end up back at SCOTUS on a sufficiency of the evidence challenge where SCOTUS would have to tell us what the elements of the offense of “Insurrection” are.