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ChunkMcHorkle@lemmy.world to politics @lemmy.world – 452 points – Opinion | The Supreme Court Just Erased Part of the Constitution
nytimes.com

Excerpt:

It’s extremely difficult to square this ruling with the text of Section 3 [of the Fourteenth Amendment]. The language is clearly mandatory. The first words are “No person shall be” a member of Congress or a state or federal officer if that person has engaged in insurrection or rebellion or provided aid or comfort to the enemies of the Constitution. The Section then says, “But Congress may by a vote of two-thirds of each house, remove such disability.”

In other words, the Constitution imposes the disability, and only a supermajority of Congress can remove it. But under the Supreme Court’s reasoning, the meaning is inverted: The Constitution merely allows Congress to impose the disability, and if Congress chooses not to enact legislation enforcing the section, then the disability does not exist. The Supreme Court has effectively replaced a very high bar for allowing insurrectionists into federal office — a supermajority vote by Congress — with the lowest bar imaginable: congressional inaction.

This is a fairly easy read for the legal layperson, and the best general overview I've seen yet that sets forth the various legal and constitutional factors involved in today's decision, including the concurring dissent by Justices Kagan, Sotomayor, and Jackson.

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Absolutely, it's insane that congress passed an ammendment that said a thing and now the Supreme Court is saying "no, it doesn't say that thing, if you wanted that to apply you'd need to pass a congressional act on a case by case basis."

Imagine if everytime someone committed tax fraud congress had to officially vote to investigate that specific person. Imagine if a country like America was unable to delegate any powers.

It’s because they don’t actually care what the constitution or the bill of rights or any of the amendments says. The Tribunal of Six only cares about ensuring their political compatriots - that is, the GOP - can cement their power for good. And if that means that we sink into fascism… they don’t care. Because they’ll be calling the shots.

Literalism is just a tool for the corrupt Supremes to wield as a convenience.

That's exactly what they want. That's the goal. The goal is to stop the government from being able to function in any way whatsoever unless specifically delegated by Congress. That's been the Supreme Court and the Republicans legal modus operandi. That's why they're trying to dismantle the entire regulatory system. They want to dismantle every Federal agency. Because when in Congress has to individually do everything and they've turned Congress into a corrupt do nothing body, then none of it gets done. They get to do whatever they want with no repercussions and no one to stop them.

SCOTUS is clearly making unconditional rulings. The states should go nuclear and ignore them. Let SCOTUS enforce its decisions.

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This is how you get a civil war

Do you see this mess stabilizing without one? I want Republicans to have access to medical care, an equitable economy, and education, god knows they need it.

They openly prefer people like me were dead. There's no negotiating with that.

Yes. We aren't at the civil war stage yet, and to suggest differently may be somewhat unhinged at this phase.

I look at it like this:Two sides. One side is completely full of shit and they know it. They also know the other side knows. However, both sides have agreed to keep up the pretense of everything being okay, for whatever reason. I like to call it the "Slow Break-up".

It's like when your romantic partner stops showing up for date nights, then they get home late, then they start sleeping on the couch. And eventually you get around to asking, "Is something wrong?" And they're all like, "No, everything is fine, work's just been riding me so hard lately, and now I get home so late that I don't want to wake you up." Then one day they're packing their shit to leave, and they look at you and go, "Look, we both saw this coming."

It's always "not happening" until it's already happened. The moment is skipped over where they could acknowledge they misled you, try to make amends, maybe do something about the problem.

But, my overall point is this. A civil war would be like a fight between spouses. Like, a big serious fight. Where there is the possibility that someone's going to yell "I want a divorce!". So the divorce happens, but both parties move on, and try to heal. I am on the side that wants to have the fight, move on, and heal.

Let's be honest. Either way here could easily end in a civil war. The temperature in the pot has been raising for 40 years. The earlier we lance this boil, the better off we'll be though. Kicking the can down the road allows extremist ideologies to spread more and more. Which does nothing but guarantee more suffering.

A civil war between what forces? An arm of the US military and a small fragment of the population rilled up enough to attempt human wave tactics?

It might lead to a ton of scholastic violence, maybe riots and some attempts on public figures from random idiots...

But let's assume people go charging out armed into the streets and get organized

But there's something important to think about. We have a "just in time" food distribution system. Grocery stores would be empty in a couple weeks if food deliveries are stopped, say by blockading roads. The US government and military keeps ungodly amounts of food supplies stashed around strategically too...

The only way it could happen is if part of the military attempted a coup. That requires a split at the top. Plenty of grunts might defect, but grunts aren't going to do a lot. You need to take entire military bases to keep aircraft running and to get that nice information asymmetry.

We're living fragile, interconnected lives at the end of the Anthropocene.

We can't have a civil war. We're incapable of it.

We could have a little chaos for a few days, it might even be a wakeup call

Careful what you wish for because you just might get it.

Illegitimate courts create legitimate protest actions.

I agree, but that is vastly different from States just unilaterally disregarding legal precedent. If we get to that point we are way beyond mere protest.

Those who make peaceful revolution impossible will make violent revolution inevitable.

—JFK

Republicans are working overtime to make that happen.

Where are all the states’ rights people now?

Too busy working to overthrow the government and implement a fascist dictatorship...

The much vaunted checks and balances mean nothing when the SC is corrupt

This was a unanimous decision

It wasn't. 5 said the text means the opposite of what it says. Four said enforcing it is up to the federal courts, not state courts. Two wildly different opinions with the only thing in common being overturning the state ruling.

5 said the text means the opposite of what it says. Four said enforcing it is up to the federal courts, not state courts.

Both said that that one state couldn't decide it. The majority did take a more radical stance, but to say this is the SC court being corrupt when democrat appointees also wrote concurring opinions in regards to the actual ruling was the claim I was criticizing

I'm sorry, but is your uniting factor between the two stances "they both said one state couldn't decide" here? Isn't "one vote does note supersede a greater number of the opposite" a feature of democracy? Shouldn't this have been the motherfucking default stance of the United States supreme court regardless of their stance on any other part of the issue?

Quick edit to explain my point: I don't think saying "one state can't decide" was the actual issue here, and SCOTUS choosing not to address it the larger one.

I don’t think saying “one state can’t decide” was the actual issue here, and SCOTUS choosing not to address it the larger one.

I mean, that was the issue in the supreme court case, from all of the SCOTUS opinions, a big part of what the SCOTUS has to do is set precedent for centuries.

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It’s not inconsistent with the court’s inconsistency though.

Scalia was a legal juggernaut on the bench and off it, as unfortunate his politics may be, he had a very large influence on the legal arena surrounding Constitutional law. He argued (correctly) for separated powers and the legislature doing the legislation on big and controversial topics instead of the court(s) - openly pointing out SCotUS’s composition as an unelected, politically appointed technocracy.

What changed and grew was the inconsistency of the conservative members at respecting that separation of powers whilst also not shying from their role as final legal arbiter. Trump v Anderson was correctly decided that states cannot deny candidates federal ballot access without due process, but they completely neglected to affirm or deny the lower courts ruling of what counts as attempted insurrection, kicking that to Congress.

This is political cowardice, not good and proper separated powers keeping each other in check. A legal case is the correct route to determine facts surrounding a candidates eligibility - not a political disqualification process without precedent nor established rules regarding evidentiary eligibility, rights of the accused, composition of the adjudicators, etc. any attempt to disqualify via US Congress will spurn a host of new legal challenges based on procedural questions

This is political cowardice, not good and proper separated powers keeping each other in check.

That is democracy, they have to rule based on the law, and they err on the side of innocence. I think a court that prefers for the elected people to make policy decisions instead of them is better than a court that sets its own policy.

I have to disagree. Under the Marbury v. Madison precedent and the centuries of case law supporting it, the legislature writes the laws while the courts interpret any ambiguity (because lawyers and judges abhor ambiguity) and apply the law as interpreted.

A Federal circuit court had to decide if a newly threatened species of toad does, or does not get the protections given “endangered” as specified in the primary legislation… the highest court in the land is capable of answering what insurrection is, and if it was committed.

That is a pretty clearly different form of ambiguity, the ambiguity here is that the 14th amendment does not state how to enforce the law, and does not delegate that enforcement to the states.

Such power over governance, however, does not extend to federal officeholders and candidates. Because federal officers “ ‘owe their existence and functions to the united voice of the whole, not of a portion, of the people,’ ” powers over their election and qualifications must be specifically “dele- gated to, rather than reserved by, the States.” U. S. Term 7Cite as: 601 U. S. ____ (2024) Per Curiam Limits, Inc. v. Thornton, 514 U. S. 779, 803–804 (1995) (quoting 1 J. Story, Commentaries on the Constitution of the United States §627, p. 435 (3d ed. 1858)). But nothing in the Constitution delegates to the States any power to en- force Section 3 against federal officeholders and candidates. As an initial matter, not even the respondents contend that the Constitution authorizes States to somehow remove sitting federal officeholders who may be violating Section 3. Such a power would flout the principle that “the Constitu- tion guarantees ‘the entire independence of the General Government from any control by the respective States.’ ” Trump v. Vance, 591 U. S. 786, 800 (2020) (quoting Farmers and Mechanics Sav. Bank of Minneapolis v. Minnesota, 232 U. S. 516, 521 (1914)). Indeed, consistent with that princi- ple, States lack even the lesser powers to issue writs of mandamus against federal officials or to grant habeas cor- pus relief to persons in federal custody.

  • quoting the majority ruling

But they do agree, that Section 3 provides no other method for enforcement, that is the ambiguity. But the ambiguity is easily resolved by section 5 of the 14th amendment:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

  • section 5 of the 14th Amendment

Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so. The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amend- ment. In doing so, the majority shuts the door on other po- tential means of federal enforcement.

This is the minority then saying that's not clear enough, because while section 3 prescribes no means of enforcement and then section 5 explicitly says congress has the power to enforce it- they say it is ambiguous because it doesn't say only congress has the power to enforce it explicitly. I personally prefer to agree with the majority and say since it doesn't give random people the right to depose the president- then they probably don't have the right unless new legislation by Congress who does explicitly have the power says they do.

But that’s my point exactly about the law as written leaving open ambiguity. The courts have generally either affirmed the law as written/upheld in case law, struck down parts or entire portions of the law, or bounced lesser issues back to the lower courts.

There already is a political process for individual, case by case disqualification - impeachment. Congress has already adopted a law regarding disqualification for insurrection, and the courts did not strike down that law in part or whole, despite gutting the enforcement mechanism.

It’s also not a small group of people deciding to capriciously allow or disqualify people the chance at office. Congress determined that insurrection is a disqualifying offense, as is being too young, or not a citizen. We don’t kick disqualifications for those categories back to Congress for a ‘trial’ but this is being treated differently, because the court is shirking from its traditionally assumed role

Congress wrote laws specifying the process specifically of getting on the ballot, those laws preclude age and require citizenship, but I don't think specify the process for removing an insurrectionist. And I think that because if they did someone would have opened a federal suit of the election commission by now.

There is no side of innocence in determining eligibility for office. The requirements laid out in the main body of the Constitution already make it clear that holding the office of President is not an inalienable right.

The Constitution does however err on limiting impedances to popular democracy, especially post-Civil War

God, I hate this timeline. Why couldn't we get the cool dystopian one.

Don't worry, let this one cook for a while and it'll turn into the cool dystopian one.

As if. The would be technocratic losers will never create synths, much less let us have sick katana arms.

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No mention of the Court's reasoning that it should not be enforced at the State level, but instead at the Federal level?

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No mention of the Court’s reasoning that it should not be enforced at the State level, but instead at the Federal level?

See paragraphs 7, 10, and 12 of the article, which discuss factors already decided at the state level and how this ruling impacts the status quo.

I was speaking of the summary. A balanced summary is an intellectually honest summary.

Also, only paragraph 12 (kind of) covers what I asked about (Court's reasoning of Fed vs State enforcement; see above) ...

It would be clearly preferable if Congress were to pass enforcement legislation that established explicit procedures for resolving disputes under Section 3, including setting the burden of proof and creating timetables and deadlines for filing challenges and hearing appeals. Establishing a uniform process is better than living with a patchwork of state proceedings.

For reference sake, here are the three paragraphs you mentioned ...

From the article, paragraph 7 ...

But now Section 3 is different from other sections of the amendment. It requires federal legislation to enforce its terms, at least as applied to candidates for federal office. Through inaction alone, Congress can effectively erase part of the 14th Amendment.

From the article, paragraph 10 ...

As Kagan, Sotomayor and Jackson point out, this approach is also inconsistent with the constitutional approach to other qualifications for the presidency. We can bar individuals from holding office who are under the age limit or who don’t meet the relevant citizenship requirement without congressional enforcement legislation. We can enforce the two-term presidential term limit without congressional enforcement legislation. Section 3 now stands apart not only from the rest of the 14th Amendment, but also from the other constitutional requirements for the presidency.

From the article, paragraph 12 ...

It would be clearly preferable if Congress were to pass enforcement legislation that established explicit procedures for resolving disputes under Section 3, including setting the burden of proof and creating timetables and deadlines for filing challenges and hearing appeals. Establishing a uniform process is better than living with a patchwork of state proceedings. But the fact that Congress has not acted should not effectively erase the words from the constitutional page. Chaotic enforcement of the Constitution may be suboptimal. But it’s far better than not enforcing the Constitution at all.

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 was speaking of the summary.

No, you were speaking of

No, I was speaking of the summary.

You're misrepresenting what I said, even after I told you explicitly what I was saying. You are not being intellectually honest.

I propose we go out in mass this weekend and let them know we are pissed.

What's next? No more basic human rights? Maybe make it ok to own slaves if the owner really really wants to?

Let's say, I'm at a bus stop and I see this other guy next to me.... really big guy who looks like a gym manager....and I tell him to be my slave? What then?

This is the best summary I could come up with:

Under the U.S. Supreme Court’s ruling that reversed the Colorado Supreme Court’s decision striking Donald Trump from the state’s primary ballot, even insurrectionists who’ve violated their previous oath of office can hold federal office, unless and until Congress passes specific legislation to enforce Section 3.

In the aftermath of the oral argument last month, legal observers knew with near-certainty that the Supreme Court was unlikely to apply Section 3 to Trump.

But instead of any of these options, the court went with arguably the broadest reasoning available: that Section 3 isn’t self-executing, and thus has no force or effect in the absence of congressional action.

We can bar individuals from holding office who are under the age limit or who don’t meet the relevant citizenship requirement without congressional enforcement legislation.

In one important respect, the court’s ruling on Monday is worse and more consequential than the Senate’s decision to acquit Trump after his Jan. 6 impeachment trial in 2021.

It would be clearly preferable if Congress were to pass enforcement legislation that established explicit procedures for resolving disputes under Section 3, including setting the burden of proof and creating timetables and deadlines for filing challenges and hearing appeals.

The original article contains 948 words, the summary contains 198 words. Saved 79%. I'm a bot and I'm open source!

It was a unanimous decision and the precedent they set was that states don't have the right to declare who is and who is not a traitor, only the federal government can decide that. I don't like Trump, but the precedent needed to be set and I agree with the supreme court on this one. You can still try to prove he is a traitor in federal court, and then he would be knocked off the ballot in all states.

Honestly, that part of the amendment is just horribly written. It reads like a rush job, which is probably was given it was written to remove/keep out former Confederates. There's no mechanism in there to determine guilt or any definition of what constitutes insurrection or rebellion. Seceding, forming a new government, and declaring war on the US is obvious, but it doesn't say what the minimum threshold actually is. The entire thing is just two sentences. This very comment has a similar word count.

It was written that way to welcome back the confederates. This was a war where it was brother against brother, father against son, so it was written in a way to welcome back the south. Like "yeah, we kicked your ass, but we're still friends, we're only going to change things a little bit", and it has to be a super majority so anything less than 2/3's in both houses isn't enough. A super majority like that can impeach AND remove a sitting president. It could also recall a Continental Congress which has powers not used since the revolutionary war.

I don't think that was the majority opinion, but the concurring opinion. The majority was party lines and stated that no, federal Court is also not enough, only action by congress will count.

Yeah, if you get a super majority from both houses of Congress then it supercedes the president and the supreme court, but that does not happen very often.

Also, i thought states were given the right to determine their own ballot rules.

Or is that mute because this is a federal election?

This was...a bad decision. Quite frankly, they are abdicating responsibility with a sophomoric "not it!" when it comes to finally doing what the 14th requires. I wouldn't say it rises to the level of the Bush v. Gore decision at the turn of the millennium, but it is quite close.

Using their logic, Jefferson Davis could have run for president.

Has Trump actually been found guilty of insurrection? It seems this could be where the issue lies. I know he's an insurrectionist, you know he is an insurrectionist but unless convicted how do you apply the law?

He was found by the Colorado court to have engaged in insurrection, yes. No court since has overruled that finding. Not even the scotus in this decision disagreed with the finding. They just said, basically, "He did it but Colorado doesn't have the power to determine eligibility under the 14th; That's for congress."

The "trump was never convicted of insurrection" meme is dead.

It requires no conviction.

Doesn't that put the 14th and 5th in conflict? I made the assumption that due process (5th) was assumed/required when the 14th was written.

being disqualified from an office is not covered by the 5th amendment

people under 35 are not being held out of office of the president for some crime.

It's a civil matter, not a criminal one.

Requiring congress to vote to not allow him to run is legally the same as requiring congress to vote to not let allow a 5 year old to run. Neither Trump nor the 5 year old should have to be proven ineligible They're simply not, under the law as written.

SCOTUS are a bunch of political hacks and they should be charged with aiding and abetting an insurrectionist.

So... what's to stop a Texas or a Mississippi or a Florida from deciding that Biden has participated in an insurrection, and requiring no conviction, uses this as grounds for removal from the ballot in November?

As much as I want Trump off ballots and believe he's an insurrectionist, it's important to remember that anything that can be done to hamper his chances that requires no (or a low bar) legal framework can also be done to help his chances.

If a court in Colorado can sit down and decide he's off the ballot because of their opinions, and that decision is enforceable and unassailable, then we're establishing that a state court can strike any name from any ballot because they say so.

With that precedent, I would fully expect states with GOP leadership to appoint judges who would then find reasons to call some aspect of Biden's presidency an insurrection (in a similar vein as the Mayorkas impeachment), and remove him from their state's ballot.

Literally nothing. If they were able to they would do it already, in several cases they are kind of half-assedly trying. Mutually assured destruction isn't the principle of operation when one side is generally acting in good faith and the other side is actively pulling the copper out of the walls.

The thing keeping them from doing that is they need some form of proof.

Nothing is stopping anyone from just lying about everything, except other people who refuse to go along with the lie. All social systems are inherently backed by community intolerance of dishonesty.

Yes, that was the ruling of the Colorado state Supreme Court. This is the federal Supreme Court saying "the courts can't do that, only congress can" which is a very very strange way to read that amendment.

And then when it gets to Congress they'll throw their hands up and say "He's not president we can't impeach him!" as if that's all they could do. Then when he is president (I fully expect him to win...) they'll say "impeachment is just a political tool it's not about crimes!" So they can continue to do absofuckinglutley nothing about it, again pretending that this is an impeachment thing.

I'm almost 40 and I've never lived in a time where Congress served any useful purpose. We already don't have any representation yet we pretend like we do because like 6 people exist (AOC, Porter, Sanders etc...)