I doubt anyone is more horrified by the thought of another Trump term than me. But these absurd persecutions are much worse. It's as if the Democrats have learned absolutely nothing.
And on another point, as a lawyer myself and a constitutionality little enrages me more than the continuous efforts by the Democrats to impugn the motives of or delegitimize any institution that does not do what it wants beginning with the USSC and continuing with the electoral college. The Senate itself will clearly be next.
Great post, but I have a different view of Congress' role under the Insurrection Clause. The Fourteenth Amendment, like many post-Civil War amendments, provides that Congress may "enforce" the Amendment by "appropriate" legislation. Enforcement is not construction; it's courts that construe constitutional amendments and decide whether congressional legislation to enforce them are "appropriate." Congress could set forth the procedures for enforcing the Clause, but it could not decide whether an individual had committed insurrection for purposes of the Clause, or define insurrection as used in the Clause.
I suspect the Court will hold that the Clause doesn't apply to the president, both because he is not an "officer of the United States" and because he is not listed among the elective federal officers who cannot hold office if he is an insurrectionist. This would be a strictly legal analysis, would decide only the fate of presidential candidates, and would leave everything else for another day.
We'll know in a few hours. It's rare a pundit is put to the test so quickly. Jim Dueholm
I didn't say sooth very well, for the court didn't hold the Insurrection Clause doesn't apply to the president, maybe because that approach wouldn't have got nine votes. All nine agreed the Clause couldn't be enforced by the states. Four of them, the three liberals and Barrett, said the court should have stopped there. As I read the opinion the other five held the Clause couldn't be enforced by federal courts or other federal authority without enforcement legislation from Congress, which hasn't been enacted. That holding would seem to preclude raising the issue in federal courts or other authority or in the congressional counting of electoral votes. I think the three liberals wanted to keep these options open to be addressed another day. I can see why the majority wanted to avoid having to deal with this issue again in even more fraught circumstances. Jim Dueholm
I hope Sotomayor dissents. It would make her look as bad as she actually is.
For that reason, I think Bill is right -- Sotomayor probably won't dissent. But that won't mean she agrees with the result.
I doubt anyone is more horrified by the thought of another Trump term than me. But these absurd persecutions are much worse. It's as if the Democrats have learned absolutely nothing.
And on another point, as a lawyer myself and a constitutionality little enrages me more than the continuous efforts by the Democrats to impugn the motives of or delegitimize any institution that does not do what it wants beginning with the USSC and continuing with the electoral college. The Senate itself will clearly be next.
Great post, but I have a different view of Congress' role under the Insurrection Clause. The Fourteenth Amendment, like many post-Civil War amendments, provides that Congress may "enforce" the Amendment by "appropriate" legislation. Enforcement is not construction; it's courts that construe constitutional amendments and decide whether congressional legislation to enforce them are "appropriate." Congress could set forth the procedures for enforcing the Clause, but it could not decide whether an individual had committed insurrection for purposes of the Clause, or define insurrection as used in the Clause.
I suspect the Court will hold that the Clause doesn't apply to the president, both because he is not an "officer of the United States" and because he is not listed among the elective federal officers who cannot hold office if he is an insurrectionist. This would be a strictly legal analysis, would decide only the fate of presidential candidates, and would leave everything else for another day.
We'll know in a few hours. It's rare a pundit is put to the test so quickly. Jim Dueholm
I didn't say sooth very well, for the court didn't hold the Insurrection Clause doesn't apply to the president, maybe because that approach wouldn't have got nine votes. All nine agreed the Clause couldn't be enforced by the states. Four of them, the three liberals and Barrett, said the court should have stopped there. As I read the opinion the other five held the Clause couldn't be enforced by federal courts or other federal authority without enforcement legislation from Congress, which hasn't been enacted. That holding would seem to preclude raising the issue in federal courts or other authority or in the congressional counting of electoral votes. I think the three liberals wanted to keep these options open to be addressed another day. I can see why the majority wanted to avoid having to deal with this issue again in even more fraught circumstances. Jim Dueholm