From the Peanut Gallery – Page 2

We Need Better Articles (and Headlines) About Court Decisions

I hate click-bait, the headlines for on-line news articles that are designed less to elucidate the content of the article so that readers can make a more informed decision to spend their increasingly limited time (or free articles on a pay-wall site) to read it than to entice a potential reader to click the link and this generate more ad revenue. One recent example was a Newsweek article with the headline “Every Liberal Supreme Court Justice Sits Out Decision in Rare Move.”

It turns out that the particular case had three of the Supreme Court justices (Sotomayor, Kagan, and Jackson) as defendants, so there was no question that they had a conflict of interest. The case itself, Brunson v. Sotomayor, docket number 23-1073, was a frivolous sequel to Brunson v. Adams, docket number 22-380, itself frivolous and about which I have previously written, and the denial of certiorari to review the dismissal below was certainly the correct result. While I cannot say that this article was as misleading on the whole as the one I previously discussed, it does inaccurately state that the recusing justices did not provide a specific reason for doing so when the order specifically referenced “28 U. S. C. §455(b)(5)(i) and Code of Conduct for Justices of the Supreme Court of the United States, Canon 3B(2)(d)(i) (party to the proceeding).”

Jay Bohn

May 30, 2024

Supreme Court to Hear Immunity Argument

This morning the United States Supreme Court will hear argument in Trump v. United States (the caption says it all) in which the former President argues that he is immune from any criminal liability for the charges brought in that case. The argument (as all Supreme Court arguments) will be live-streamed on the Court’s website (https://www.supremecourt.gov) and will be available in both audio and transcript form later today. (After the argument I will edit the foregoing sentences to provide the links.)

It is clear of course that Donald Trump’s strategy all along has been delay, delay, delay, hoping that he can run out the clock to prevent any of the criminal trials to proceed before he hopes to be re-elected. Although it has not worked perfectly (the New York state trial is on-going as I write this), he has been largely successful, a disappointment to those who were hoping for some magic bullet to prevent either his re-election or the Hobson’s choice between him and President Biden.

Whatever one ultimately thinks about the merits of presidential immunity, it is an important question that the Supreme Court is going to have to answer and so here I part ways with those who argue that the mere fact that the Court has taken this case is proof of its partisanship. See, for example, Ankush Khadori’s Politico column, How to Know If the Supreme Court Is in the Tank for Trump.

Jay Bohn

April 25, 2024

Supreme Court Writes Finis to Trump Ballot Challenges

Just when you thought you were free of my Section 3 rantings (my last post was about something else), they’re back. Well, on Monday the Supreme Court issued its decision in Trump v. Anderson, and I have to talk about it.

Newsflash: all nine justices agreed that the State of Colorado does not get to exclude Trump from the ballot because the presidency is a national office and individual states do not get to judge the Section 3 disqualification for it. Four of the justices wrote separate opinions (one by Justice Barrett and another jointly by Justices Sotomayer, Kagan, and Jackson) saying that was enough and the Court should have gone no farther. But the other five justices supported a per curiam opinion which indicates that at least for federal offices, Section 3 may not be enforced at all in the absence of Congressional legislation.

The end result is that the Supreme Court of Colorado was reversed, Trump gets on that ballot, and any challenge in any other State is doomed. While it is not a result with which I disagree as a legal proposition,¹ I am most concerned about what it says about the ability of States to exclude otherwise ineligible candidates from their ballots, such as persons who are not citizens or do not meet the constitutional age or residency requirements, seemingly inconsistent with one of Justice Gorsuch’s decisions when he was on the Tenth Circuit Court of Appeals: “[A] state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”²

It also leads to a greater possibility of inconsistency as I discussed in Takes on Trump v. Anderson Oral Argument 3: National or State Office Should Not Make a Difference; “if Candidate A is an insurrectionist, Candidate A should not be eligible for any office, from dog catcher to President.”

It may be that the majority wanted to foreclose piece-meal challenges to individual acts during a hypothetical second Trump administration.

I have to read the decision a few more times.

Jay Bohn

March 8, 2024

See my posts from last September, starting here. ↩︎
Hassan v. Colorado, 495 F. App’x 947 (10th Cir. 2012). ↩︎

Higher EV Registration Fees and Tax “Fairness”

Nobody likes taxes, but they would not be so bad if other people would pay their “fair share” so that I could pay less. You hear this all the time, often in the context that “the rich” should always pay more income taxes. What brings this to mind right now, however, is a Star Ledger guest column entitled “EVs tear up N.J. roads. They should pay their fair share to fix them” by Matthew Hale (published on-line on March 1, 2024, and in print on March 3, 2024). Professor Hale wants to buy a pickup truck, just because, but is ticked that he would have to pay more than his fair share into the Transportation Trust Fund in the form of gasoline taxes.

Several years ago, Governor Christie approved an increase in the gasoline tax to fund transit improvements. The tax amount is adjusted annually to produce a fixed amount of revenue. Most recently the tax was increased by 0.9 cents per gallon to 42.3 cents per gallon, making New Jersey the seventh highest. NJ’s gas tax to rise in October | NJ Spotlight News.

All-electric vehicles of course do not use gas, so their drivers do not pay a gas tax. Hale thinks this is unfair, especially because EVs tend to be heavier than other cars, and he has just the solution: there is a proposal to cut the gas tax by 33%, and Hale suggests that the $150 million that would be lost to the TTF be made up by increasing the annual registration fee for the 123,000 EVs registered in New Jersey by $1,220 a year. If you think that’s fair, ponder these points:

Even if heavier vehicles cause more damage to roads in something close to a direct relationship to the weight difference (and this presumes that the TTF merely repairs existing roads and bridges), surely another factor, likely of more significance, is the distance travelled.
The 33% cut is just an arbitrary number, at least with regard to Hale’s fairness point. The drivers of the 123,000 EVs (Hale’s figure; I believe this also includes plug-in hybrids) would be paying one-third of the annual TTF levy while the drivers of the other 2,412,248 vehicles registered in New Jersey would pay two-thirds.¹ This means that the EV owner is paying, in extra registration fees, just under ten times the amount that the average gasoline-powered car is paying in New Jersey gasoline tax.² Or put it this way, the $1,220 additional registration fee equates to the tax paid on 2,884 gallons of gasoline (or about 4,305 gallons if the gas tax is actually reduced by 33%).

And none of this considers the environmental benefit from the elimination of tail pipe emissions.³ Governments use tax policy to incentivize certain behaviors all the time.

As a final question about fairness, is it fair that I, who has never been a consumer of the New Jersey public education system, either as a student or parent, should have to pay thousands of dollars a year in school taxes?

Jay Bohn

March 4, 2024

Actually less, because some portion would be paid by out-of-state drivers who purchase gas in New Jersey. ↩︎
I’m mixing statistical sources, so these numbers are not as exact as they seem. The 123,0000 number comes from Hale’s editorial. According to U.S.: total number of cars by state | Statista, based on 2021 numbers, New Jersey had 2,535,248 registered vehicles. I merely subtracted the one from the other. ↩︎
I do realize that the production of electricity to charge EVs does itself have environmental impact, but individual internal combustion engines do pollute more than any public utility. ↩︎

Takes on Trump v. Anderson Oral Argument 4: The Significance of Collateral Estoppel

This is another post about a small part of the U.S. Supreme Court oral argument (transcript | audio) in Trump v. Anderson.

During the argument Justice Alito asked both Jonathan Mitchell, President Trump’s attorney, and Shannon Stevenson, Solicitor General of Colorado who was appearing on behalf of the Secretary of State, about “non-mutual collateral estoppel.”

Collateral estoppel is a legal doctrine which essentially says that a litigant gets the metaphorical one bite at the apple on a particular issue. If in one suit an issue was decided against A and in favor of B, then A did not get to contest that issue if it was relevant to a different litigation against B. Earlier formulations of the doctrine required mutuality: it only applied it if the parties involved were the same (or “in privity”). C cannot come in and say that the issue was already resolved against A.

However, some jurisdictions now recognize “non-mutual collateral estoppel” which would permit C to do that very thing. Justice Alito was concerned that Colorado’s Supreme Court’s decision could be binding on the whole country:

JUSTICE ALITO: The consequences of what the Colorado Supreme Court did, some people claim, would be quite severe. Would it not permit –would it not lead to the possibility that other states would say, using their choice-of-law rules and their rules on –on collateral estoppel, that there’s non-mutual collateral estoppel against former President Trump and so the decision of the Colorado Supreme Court could effectively decide this question for many other states, perhaps all other states? Could it not lead to that consequence?

Mitchell, who might have been expected to stoke just such fears, said that it would not happen with respect to the Colorado decision:

MR. MITCHELL: I don’t think so because Colorado law does not recognize non-mutual collateral estoppel. And I believe the preclusive effect of the decision would be determined by Colorado law rather than the law of another state.

Justice Alito also raised the question during Stevenson’s argument:

JUSTICE ALITO: Suppose a state that does recognize non-mutual collateral estoppel makes a determination, using whatever procedures it decides to adopt, that a particular candidate is an insurrectionist.

Could that have a cascading effect, and so the decision by a court in one state –the decision by a single judge whose factual findings are given deference, maybe an elected trial judge, would have potentially an enormous effect on the candidates who run for president across the country? Is that something we should be concerned about?

Stevenson did not think it a matter of great concern because there is already “a huge amount of disparity in the candidates that end up on the ballot on –in different states in every [presidential] election.”¹

I’m pretty sure that it is not an ideal solution to have the potential of either disparate decisions on the eligibility of an individual for office, especially the presidency, or allowing forum shopping to find a highly partisan judge whose decision would be subject to deferential review as to factual matters and could be binding on the whole country. There should be a national forum for all Section 3 questions.

Jay Bohn

February 29, 2024

As I stated in the last post, there is not actually one national presidential election but 51 different contests for the choosing of electors. ↩︎

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

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. ↩︎
Whether Congress has that power or not is irrelevant to Mitchell’s argument. ↩︎
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

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/. ↩︎
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/. ↩︎
Courts in Minnesota and Michigan have held that under their states’ laws an ineligible candidate can be on at least the primary ballot. ↩︎
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. ↩︎
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

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