The White Sun

 

I spent the morning and a good part of the early afternoon today listening to the Supreme Court arguments regarding Trump v Anderson, the case regarding removing the twice-impeached, multiply indicted, former "president" from the Colorado ballot. Based on the judges' questions, I'm convinced the court will overturn the case and allow him on the ballot, and it wouldn't surprise me at all to hear the decision was unanimous.  

I'm also convinced, as much as I despise Trump, that they're correct in their decision.

To start with, the case is a thorny one. Amendment 14 reads, in part, "No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

Donald Trump clearly engaged in insurrection - prior courts have affirmed that much - and no reasonable person who hears Trump call the convicted January 6 rioters "political hostages" and promise them pardons can disagree that he's given them "aid and comfort." And even though he never held any public office before being elected "president" in 2016 (the first person since George Washington to do so), he took an oath "to preserve, protect and defend the Constitution" during his inauguration (although there were very few people present to observe it). 

I'm disturbed by the wording in the Amendment and the way that it tip-toes around the word "president" without explicitly stating that the Chief Executive is also prohibited form holding office.  The final catch-all, "any office, civil or military" seems to include the President, but the Amendment specifically identifies Senators and Representatives, who are also included in the catch-all. So why doesn't it specifically say, "President and Vice-President?" 

I don't believe the authors of the Amendment thought that it was fine for an insurrectionist to be President. I personally believe that right after the Civil War, when the Amendment was added, they were focused on the States, specifically the Southern States, and therefore, specifically called out Senators and Representatives, as well as the state's selected electors of the President. But I don't feel that kind of "fine print" exception justifies overturning the Colorado decision.

What DOES concern me is the argument, articulated by Justice Ketanji Brown Jackson, that a single state, in this case Colorado, can effectively decide a national election and basically disenfranchise voters in other states. What if Texas, say, decides to keep Biden off the ballot because they feel his handling of the border is a dereliction of duty and some form of insurrection? It's a stretch, I'll grant you that, but never underestimate the so-called "logic" of MAGA Republicans.

The 14th Amendment states that an insurrectionist can't hold national office, but it doesn't say how that is to be enforced. Also, it only says that such insurrectionists cannot hold office but doesn't say they can't run for office. 

The president's lawyer argued that any authority to enforce the 14th Amendment and regulate federal elections should come from the federal government, not from the states, although they weren't specific on how the feds should enforce the Amendment. Federal elections, including for president, are held by the States, so enforcement of who can or cannot hold office shouldn't be at the electoral stage.

What could happed - what should happen, although I know that it never will - is that Congress, when certifying the results of an election, should not certify the election of a candidate not eligible to hold office.  In a perfect world, voters wouldn't elect a person ineligible for office, but the mere existence of Trump and MAGA Republicans proves we don't live in a perfect world.  

Then there's the ultimate Constitutional crisis - "ultimate" in the sense of the last crisis. If the voters do go ahead and elect an ineligible candidate, and a partisan and corrupt Congress goes ahead and certifies the vote, can the Chief Justice legally administer the oath of office to a candidate constitutionally ineligible to hold that office? Wouldn't administering the oath be itself an unconstitutional act? After a failure by the voters and by Congress, wouldn't that be the final check and balance to uphold the 14th Amendment?

The 14th Amendment, coming as it did at the end of the Civil War, is an imperfect tool for these modern circumstances.