Category: Government/Politics

Takes on Trump v. Anderson Oral Argument 3: National or State Office Should Not Make a Difference

This is another post about a small part of the U.S. Supreme Court oral argument (transcript | audio) in Trump v. Anderson. Both Jonathan Mitchell, President Trump’s attorney, and Jason Murray, the attorney for the voters challenging Trump’s eligibility, were asked about the authority of the states to pass upon the qualification of candidates for federal office. Justice Sotomayor asked Mitchell:

Can states enforce the Insurrection Clause against their own office holders, or can they enforce it against federal officials, or can they enforce it against the president?  Those are all three different questions in my mind.

And Justice Thomas quickly jumped on Murray:

Do you have contemporaneous examples — and by contemporaneous, I mean shortly after the adoption of the Fourteenth Amendment — where the states disqualified national candidates, not its own candidates, but national candidates?

Although it may initially seem absurd to postulate that a State has any role in determining the qualification of a candidate for President or Congress, one must remember that the United States does not have national elections but 50 separate State elections (and one on the District of Columbia) for presidential electors. The States by and large choose how elections are run, what candidates need to do to qualify for the ballot and (to a somewhat limited extent) who is entitled to vote.

Disqualification under Section 3 is a question of federal law. If a State can decide that for a candidate for State or local office, it should be able to decide it at least for the election it is running.

Moreover, the standard for disqualification does not depend upon the office being sought (with the arguable exception of the presidency, see note 1 of this post). So, if Candidate A is an insurrectionist, Candidate A should not be eligible for any office, from dog catcher to President.

Jay Bohn

February 26, 2024

Takes on Trump v. Anderson Oral Argument 2: The Significance of Term Limits

This is another post about a small part of the U.S. Supreme Court oral argument (transcript | audio) in Trump v. Anderson. As part of Trump attorney Jonathan Mitchell’s presentation, he asserted that by banning Trump from the ballot the State of Colorado was effectively adding to the constitutional qualifications for the presidency, which a state cannot do.

In making this argument Mitchell was relying upon U.S. Term Limits, Inc., v. Thornton, 514 U.S. 779, 115 S. Ct. 1842; 131 L. Ed. 2d 881 (1995), which invalidated an Arkansas constitutional provision denying ballot access to three-term representatives and two-term senators.1  Mitchell says that U.S. Term Limits “only prohibits the states from adding additional qualifications or altering the Constitution’s qualifications for federal office. It does not purport to restrain Congress.”2

True, but the Court’s opinion in U.S. Term Limits relied heavily upon Powell v. McCormack, 395 U. S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969), in which the Court decided that “the power granted to each House in Art. I, § 5, cl. 1, to judge the ‘Qualifications of its own Members’ [does not] include[] the power to impose qualifications other than those set forth in the text of the Constitution.” U.S. Term Limits, Inc., 514 U.S. at 788.

My reading of the Constitution’s provisions establishing qualifications for members of Congress and the President is that neither Congress nor the States can add to or subtract from the qualifications.3

If that is correct, then what do we make of 18 U.S. Code § 2383 (mentioned about ten times during the argument), which makes insurrection a federal crime, specifically the end of the penalty provision which directs that an insurrectionist “shall be incapable of holding any office under the United States”?

Jay Bohn

February 22, 2024

  1. U.S. Term Limits was a 5-4 decision. The only current justice who was on the Court at the time was Justice Thomas, who wrote a dissent. ↩︎
  2. Whether Congress has that power or not is irrelevant to Mitchell’s argument. ↩︎
  3. The sole exception to that rule is Congress’ explicit power under Section 3 of the Fourteenth Amendment to remove a disqualification under that section. ↩︎

Takes on Trump v. Anderson Oral Argument 1: Different Types of Disqualification (and Is There Any Role for the Twentieth Amendment?)

On February 8, 2024, the U.S. Supreme Court heard oral argument (transcript | audio) in Trump v. Anderson, an appeal from the ruling of the Colorado Supreme Court that section 3 of the Fourteenth Amendment renders Trump ineligible to be President (a federal question) and that under Colorado law he is therefore not permitted to be on the ballot for the Republican nomination (a state question).

My biggest takeaway is that Section 3 creates too many questions without clear answers and that it should be either repealed or revised to be clearer. That will not happen.

Most post-argument commentary thought the session went well for Trump.1 One interesting article2 commented “Trump’s lawyer, Jonathan Mitchell, delivered a buttoned-down presentation that omitted all the bombast and hyperbole the former president’s legal representatives typically muster when they argue on his behalf.”

The argument referenced a lot of potential issues, and I intend to pull out a few from time to time and discuss them.

Mitchell started by saying “The Colorado Supreme Court’s decision is wrong and should be reversed for numerous independent reasons,” but his argument focused on only two: that as President Trump was not an officer of the United States (which I discussed in some detail here) and an argument I had not previously seen, that Colorado cannot exclude a Section3-disqualified candidate from the ballot. In this post I am going to discuss the second point.

At the beginning of his argument Mitchell said:

The second reason is that Section 3 cannot be used to exclude a presidential candidate from the ballot even if that candidate is disqualified from serving as president under Section 3 because Congress can lift that disability after the candidate is elected but before he takes office. A state cannot exclude any candidate for federal office from the ballot on account of Section 3, and any state that does so is violating the holding of Term Limits3 by altering the Constitution’s qualifications for federal office.

Mitchell’s point was that Section 3, if applicable to Trump and the presidency, prohibits an insurrectionist from “being” President, not from running for the office.4 Because Congress can remove the Section 3 disability, a state cannot keep the insurrectionist from the ballot, a potential distinction from the case where someone who is not a natural born citizen — what Mitchell termed a “categorical” disqualification because it cannot be removed — seeks to run for President.

At this point it might be useful to review the Constitution’s qualifications for a person to be President (all actually written as ineligibilities or disqualifications (assuming for this purpose that there is no distinction between the two)):

  • Art. I §3, cl. 7: person impeached and convicted may be disqualified from holding “any Office of honor, Trust or Profit under the United States;”
  • Art. II §1, cl. 5: no person shall be “eligible to the office of President” unless a natural born citizen having attained the age of thirty-five years and been fourteen years a resident;
  • Amend. XIV §3 (assuming its application to the presidency): no disqualified person “shall hold any office, civil or military, under the United States . . . ;” and
  • Amend. XXII §1: “No person shall be elected5 to the office of the President more than twice . . . .”6

Only three of the six ineligibilities can be removed short of constitutional amendment: a person who is under thirty-five or has resided in the United States fewer than fourteen years can, through the passage of time, grow older and live in the United States longer and thus satisfy the age and residence requirements and Congress can remove the Fourteenth Amendment disqualification. The other three ineligibilities (disqualification after impeachment and conviction, not being a natural born citizen, and having been previously elected twice) are presumably what Mitchell meant be “categorical” disqualifications.

During the argument the deadline for removal of the disqualification (which Mitchell called a “waiver”) was not explicitly stated. He said it could not be before the election (which answers the specific question of whether Trump can be kept off the ballot), but it might be January 20, 2025, when Trump would take office. The Twentieth Amendment, however, suggests that it could be later, in fact, any time during a second Trump term. The second sentence of Amend. XX §3 provides: “If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President-elect shall have failed to qualify, then the Vice President-elect shall act as President until a President shall have qualified . . . .” (emphasis added) This suggests to me that a person who is not “categorically” ineligible could be elected President but would not be allowed to be President until (and unless) the disqualification is removed, either by the passage of time (for age or durational residence) or a Congressional amnesty. During that time the newly elected vice president would act as President.

Jay Bohn

February 19, 2024

  1. See, for example, Amy Howe, Supreme Court appears unlikely to kick Trump off Colorado ballot, SCOTUSblog (Feb. 8, 2024, 3:14 PM), https://www.scotusblog.com/2024/02/supreme-court-appears-unlikely-to-kick-trump-off-colorado-ballot/, also published on her own blog Howe on the Court, and Mark Walsh, A packed courtroom for the Trump ballot case, SCOTUSblog (Feb. 8, 2024, 5:41 PM), https://www.scotusblog.com/2024/02/a-packed-courtroom-for-the-trump-ballot-case/. ↩︎
  2. Josh Gerstein, A very un-Trumpy performance delivers for Trump at Supreme Court, Politico (Feb. 8, 2024, 3:14 PM), https://www.politico.com/news/2024/02/08/trump-lawyer-arguments-supreme-court-00140604/. ↩︎
  3. Courts in Minnesota and Michigan have held that under their states’ laws an ineligible candidate can be on at least the primary ballot. ↩︎
  4. There is of course the argument that the Twenty-Second Amendment does not prohibit someone from being president after being twice elected, such as by then being elected vice president (but see Amend. XII cl. 4: “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”), but I am going to gloss over that for now. ↩︎
  5. Because the Twenty-Second Amendment prohibits election, there is a very strong case that such a person may not appear on the ballot. ↩︎

This is the Day

At 10:00 this morning the U.S. Supreme Court will hear oral argument in Trump v. Anderson, an appeal from the ruling of the Colorado Supreme Court that section 3 of the Fourteenth Amendment renders Trump ineligible to be President (a federal question) and that under Colorado law he is therefore not permitted to be on the ballot for the Republican nomination (a state question). The oral argument will be available live on the Court’s website. Later today the recorded audio and a transcript will be available. I plan to post specific links in a postscript.

If this is all news to you, you probably haven’t been reading my blog. I’m not going to review everything here, but Amy Howe has written is a very good overview in her blog, Howe on the Court, which is also published on SCOTUSblog.

Jay Bohn

February 8, 2023.

Post script

The argument transcript and audio are now available.

J.B.B.

February 8, 2023.

More Fun with Section 3

A whole month has gone by since I wrote anything about the question of whether Section 3 of the Fourteenth Amendment makes former President Donald Trump ineligible to hold office again.1 (Indeed, it has been a month since I posted anything.) Since the last post on the subject the United States Supreme Court has granted Trump’s petition for certiorari to review the Colorado Supreme Court’s decision and will hear argument on February 8. Other than Trump’s reply brief, should he submit one, all briefing is complete. There were an astonishing number of amicus briefs.

Recently CNN.com published an article “Tracking the major 14th Amendment efforts to remove Trump from the 2024 ballot,” which is something I had been hoping someone would do.

Although U.S. Supreme Court arguments are not televised, a live audiofeed will be available on the court’s website and both the recorded version and a preliminary transcript are likely to be available later that day.

Jay Bohn

February 1, 2024

  1. I’ve written about this issue often; see footnote 1 in this post for an as-of-then up to date list. ↩︎

Year-End Wrap Up of Section 3 News

I’ve recently wondered what I would have written about if it weren’t for all the developments in the attempts to exclude President Trump from the ballot under section 3 of the Fourteenth Amendment. Here’s what happened (so far) since the Colorado Supreme Court affirmed the trial court ruling that Trump had engaged in insurrection but reversed the holding that the President is not an officer of the United States and thus declared Trump ineligible for reelection:

  1. Yesterday, the Michigan Supreme Court denied an application for leave to appeal the Court of Appeals ruling that as a matter of Michigan law the Secretary of State must place Trump on the primary ballot regardless of whether he would be disqualified from holding office.
  2. Also yesterday, the Colorado Republican Party filed a petition for writ of certiorari seeking U.S. Supreme Court review of the Colorado Supreme Court’s decision excluding Trump from the primary election ballot in that state.1

A significant part of the public reaction has been the view that the voters rather than the courts should be the ones to decide if Trump is President again.2 My problem with that is that either you apply the Constitution, or you don’t. You cannot pick and choose which provisions you agree with (like, for the media, freedom of press) and ignore others (the Second Amendment?). I’m not a fan of term limits precisely because they limit the ability of voters to choose their preferred candidates, but that doesn’t mean that I think that the Twenty-second Amendment should be ignored to allow two-term former Presidents Clinton, Bush, or Obama to run again.

Jay Bohn

December 28, 2023

  1. I thank CBSNews.com for the link to the petition. ↩︎
  2. See, for examples, the reaction of the other Republican candidates, as here reported by ABCNews.com and Star-Ledger’s “Friendly Fire” contributors on NJ.com. ↩︎

Redeeming the Republican Party from Trumpism: All I Want for Christmas is a Haley-Christie Ticket

Just over a year ago I called for the Republican party to nominate someone other than Donald Trump as its standard bearer in the 2024 presidential election. A year later and a few weeks before the first delegate selection contests, I propose that that someone be a team ticket of former South Carolina Governer and U.N. Ambassador Nikki Haley and former New Jersey Governor and United States Attorney Chris Christie.

The most important thing is not that the nominee be Haley over Christie or vice-versa, but that it be either of them over Trump.

I say a team because I believe that will better merge their strengths than having the vice-presidential candidate being just an also-ran. It may also make it more palatable for Christie who truly believes that he would be the better President.

As I see it, Haley should focus on foreign policy while Christie handles legal affairs, government integrity, and judicial appointments. (Nominees for all court vacancies should be always ready to go.)

As a team it would have a captain and that would be Haley, but I would like to think that as patriotic Americans with the country’s best interests in mind, they would both see the value of this arrangement.

Jay Bohn

December 25, 2023

Colorado Supreme Court’s Anderson v. Griswold Decision Tees Up U.S. Supreme Court Showdown on Whether Section 3 Will Be a Roadblock or Speed Bump in Trump’s March to Renomination

On Tuesday the Colorado Supreme Court issued its much-anticipated decision in Anderson v. Griswold, the case in which a group of Colorado voters is seeking to bar President Trump from appearing on Colorado’s primary ballot based upon the argument that his conduct on January 6, 2021, constituted “engaging” in an “insurrection” rendering him ineligible for the office of President under section 3 of the Fourteenth Amendment. The Colorado Supreme Court affirmed much of the trial court’s decision including several state-law procedural issues and the critical conclusion that the attack on the Capitol was indeed an insurrection and that Trump “engaged” in that insurrection but reversed the legal conclusion that because the President is not an “Officer” of the United States, the disqualification did not apply to him. The upshot is that, barring action by the U.S. Supreme Court, Trump’s name will not appear on Colorado’s Republican primary ballot.1

The Trump campaign has vowed an immediate appeal.2 While there probably is no alternative, there is the risk that doing so could result in an affirmance binding upon all courts in the country as to the federal issues. (At present the ruling is only binding in Colorado state court.) Of course, we really do need a national answer and sooner, rather than later.

So far, I have only had the chance to skim the opinions. (The vote was 4-3, with a majority per curiam decision and three separate dissents.) The Court disagreed with the positions that I have expressed that the President is not an “Officer” of the United States and that the presidential oath is not one to support the Constitution of the United States. My initial impression is that the reasoning on those two points is more pragmatic than legalistic. It reminded me of the Supreme Court’s reasoning in Moore v. Harper, 600 U.S. 1 (2023), in which the Court voted 6-3 to hold that “the Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”3 Thus, I would not be surprised if the Supreme Court ultimately upholds the Colorado decision along these same lines.

Jay Bohn

December 21, 2023

  1. I have written rather extensively on the case and Section 3. See Trump Disqualification 1: Initial Thoughts on CREW Lawsuit, Trump Disqualification 2: Is the President an “Officer” of the United States?, Trump Disqualification 3: Did Trump Take an Oath to “Support” the Constitution of the United States?, Trump Disqualification 4: Did the Events of January 6, 2021, Amount to an “Insurrection”?, Trump Disqualification 5: Did Donald Trump “Engage” in the Insurrection?, Trump Disqualification 6: What Are Others Saying?, Trump Disqualification 7: Final (For Now) Thoughts, Trump Disqualification 3 Redux: Whether Trump Took an Oath to “Support” the Constitution Getting Some Attention, Courts Must (Ultimately) Decide Trump’s 14th Amendment Eligibility, Trump Wins First Round in Disqualification Fight, It is Dangerous to Rely Upon Media Explanations for Legal Issues, Michigan Follows Minnesota In Rejecting Lawsuit to Keep Trump Off Primary Ballot, and Colorado Court Rules That Trump “Engaged in Insurrection,” But That The President Is Not an “Officer of the United States,” So Trump Not Disqualified. ↩︎
  2. Although theoretically the U.S. Supreme Court could refuse to hear the case, I cannot imagine its refusal to do so. It is a matter of great importance, and I am aware of no other case likely to result in a merits decision any time soon. (All other decisions, such as in Minnesota and Michigan, have been made for procedural reasons.) ↩︎
  3. See my earlier post Furor Over “Independent State Legislature” Ignores Constitutional Text for an explanation of the issue. ↩︎

Hoping for Victory Next November, Trump Tries to Run Out the Calendar on Criminal Cases Against Him

The big news last week in the criminal case against President Trump arising from the events of January 6 was the special counsel’s request that the Supreme Court take over the appeal pending in the U.S. Court of Appeals for the D.C. Circuit. It is a highly unusual move, but it’s a highly unusual case.

As with the criminal case in Georgia, Trump claims that he is absolutely immune from prosecution because, he further claims, the conduct for which he is being prosecuted was part of his core presidential duties. D.C. District Judge Tanya Chutkan ruled against the immunity claim, and Trump appealed to the D.C. Circuit.1 Besides hoping for an appellate victory, this strategy inevitably delays the criminal trial which Trump wants to occur, if at all, after the election. If Trump wins, we will see renewed arguments about immunity for a sitting President and efforts to make use of presidential power to subvert the prosecution, if not an outright self-pardon. If he loses, he will blame the criminal trials as “election interference.”

Indeed, we are seeing the election interference claims already as the special counsel sought not only the expediting of the circuit appeal but he has asked the Supreme Court to expedite the consideration of the petition for writ of certiorari before judgment. That motion was granted, and Trump’s response to the petition is due on Wednesday.

I think that the American people are entitled to the completion of at least one of the criminal trials before the election (before the Republican convention would be even better).

Jay Bohn

December 18, 2023.

  1. Normally one cannot immediately appeal interlocutory trial court decisions as everything is saved for an appeal from an adverse final judgment, but special rules apply to claims of immunity because, even with an acquittal, the damage would be done by the very fact of having to be tried. ↩︎

Will Another “Temporary” Extension of the Corporation Business Tax Surcharge Be “Fool Me Thrice”?

You know the saying, “Fool me once, shame on you; fool me twice, shame on me.” The Star-Ledger is now seeing if the public will be gullible a third time.

In 2018 New Jersey enacted a “temporary” surcharge to the corporate business tax. During the COVID pandemic, to address the revenue shortfall that never actually occurred, the surcharge was extended. It currently expires at the end of the year, and Governor Murphy has publicly indicated that he will let it expire. In its desperate efforts to keep on taxing, the Star-Ledger has urged that the surcharge be extended and dedicated to NJ Transit. I wrote about this issue last month.

Yesterday NJ.com reported on a campaign to do just that, and that one state legislator has introduced a bill, A5878 (text not yet available), to further extend the surcharge until December 31, 2025, and require the amount collected from the surtax be dedicated to specific (but unidentified) purposes. If indeed the intended purpose is NJ Transit, are its needs going to be satisfied in two years?1

It’s good to remember this fact about a legislative dedication of revenue to a specific purpose: what one legislature gives, another can take away (usually in the budget). Ask New Jersey’s municipalities, which have been waiting for the restoration of “their” energy tax receipts for decades.

I also find it interesting that on the same day NJ.com ran an article about New Jersey’s shrinking tax collections which specifically mentioned the expiration of the surtax.2

Jay Bohn

December 11, 2023

  1. As I have previously commented, “I oppose dedicated funding; every government agency should have to make the case for taxpayer money on a regular basis.” ↩︎
  2. Far from being the fiscal disaster used to justify emergency borrowing, the COVID pandemic and the massive federal spending it brought resulted in enormous revenues that the Legislature unfortunately could spend fast enough even though anyone could, and many (including yours truly) did, tell them it was just a blip.)) For balance I guess the article also mentions the gimmick known as StayNJ. ↩︎