Twice in as many days, I am writing a piece which touches on US Constitutional law. Yet again I find myself somewhat mystified that people supposedly hold this document up as being as sacred as the Bible, Qu'ran, or the Vedic Scriptures, and yet don't seem to have read it either.
The thing which has caused MAGAists to burn incandescent with rage, is a decision made by the Colorado Supreme Court which makes former President Donald Trump ineligible to appear on the State's primary ballot papers because he incited an insurrection for his role in the Jan. 6, 2021, attack on the Capitol, and would therefor be disqualified from holding the office of President under Section 3 of the 14th Amendment.
The Colorado Supreme Court on Tuesday declared former President Donald Trump ineligible for the White House under the U.S. Constitution’s insurrection clause and removed him from the state’s presidential primary ballot, setting up a likely showdown in the nation’s highest court to decide whether the front-runner for the GOP nomination can remain in the race.
The decision from a court whose justices were all appointed by Democratic governors marks the first time in history that Section 3 of the 14th Amendment has been used to disqualify a presidential candidate.
“A majority of the court holds that Trump is disqualified from holding the office of president under Section 3 of the 14th Amendment,” the court wrote in its 4-3 decision.
Colorado’s highest court overturned a ruling from a district court judge who found that Trump incited an insurrection for his role in the Jan. 6, 2021, attack on the Capitol, but said he could not be barred from the ballot because it was unclear that the provision was intended to cover the presidency.
The court stayed its decision until Jan. 4, or until the U.S. Supreme Court rules on the case.
- Fortune, 19th Dec 2023
I think that this ruling by the Colorado Supreme Court is fair enough. The State of Colorado is responsible for holding elections within the state of Colorado; so of course it makes sense that their own Supreme Court has jurisdiction to make laws with regards a matter which is completely within its scope. However, taking this to the Supreme Court Of The United States (SCOTUS) is exactly what will happen and I think sets a somewhat dangerous precedent if ruled upon because it will both define the states as not having control over their own elections and will also confer god-like powers upon the President who will no longer be deemed to be capable of being removed from office under the 14th Amendment.
In the first instance, I do not think that given that the states are explicitly defined as having a republican form of government and also expressly given the powers to define their own terms by which they send Electors to the Electoral College, whether SCOTUS has any standing at all. As the states are expressly responsible for their own terms of conducting the election and the results therein, then SCOTUS would have to overturn the very principle of a republican forms of government in principle. If you want to talk about a branch of government claiming an absurd amount of power for itself, then striking down a decision made in the Supreme Court of a State, which has the express powers to interpret law and making rulings, seems very very dangerous.
One of the major points of contention which is being thrown forward by Trumpian MAGAists, is that Trump was never an "officer" of the United States and therefore the 14th Amendment does not apply to him. There is a problem with this. Namely that they idea that the President Of The United States, who holds a term of office, is very obviously an "officer" of the United States.
The words of Article II, Section 1 read:
https://www.law.cornell.edu/constitution/articleii#section1
Article II
Section 1.
The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:
- Article II, Section 1, US Constitution (1789)
Now of course you can make the argument that the text of Article II, Section 1 does not explicitly say that he is an "officer" but as is the case with so many of these things, a word at law in a piece of text has the normal and usual definition of that word, unless it explicitly does not. The things that are usually quoted in such cases are the definitions sections of the Acts in question, or an appropriate Acts Interpretation Act, but upon failing those things, then a commonly accepted dictionary such as the Merriam-Webster is acceptable, or in the context of law the normal authority is Black's Law Dictionary (which at 2019 is not in it's 11th Edition.
Black's Law Dictionary has this to say about what an "officer" is:
OFFICER n. The incumbent of an office; one who is lawfully invested with an office. One who is charged by a superior power (and particularly by government) with the power and duty of exercising certain functions.
- Black's Law Dictionary, 11th Ed (2019).
On top of this, the only opinion which actually matters here is that of SCOTUS which thanks to Marbury v. Madison (1803) which claimed for itself the province and duty of the judicial department to say what the law is. It said:
https://supreme.justia.com/cases/federal/us/457/731/
This grant of authority establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity. (457 U.S. 749-750).
- Nixon v. Fitzgerald, 457 U.S. 731 (1982)
Is the chief constitutional officer? Apparently not.
Opponents here, in arguing that the President of the United States of America, who 'shall hold his office' is not an officer; despite and in spite of being the incumbent of the office of the President, which is charged by a superior power which is The People, and takes an oath to faithfully execute the officer and exercise the power and duty of that office. Prima facie evidence, including the words of Article II, Section 1 of the Constitution, would suggest that the office of the President, who is elected to office, who holds office, and who does their work in the Oval Office, is an officer.
MAGAists have tried to claim that SCOTUS has previously ruled on this and said the President is not an officer, when in actual fact it has not. The closest that SCOTUS ever got to making a ruling about something similar to this, was that people further down the chain of command, are in fact still officers; who may be subject to all of the provisions of the US Constitution mentioning officers.
https://supreme.justia.com/cases/federal/us/561/477/
The President can always choose to restrain himself in his dealings with subordinates. He cannot, however, choose to bind his successors by diminishing their powers, nor can he escape responsibility for his choices by pretending that they are not his own.
The diffusion of power carries with it a diffusion of accountability. The people do not vote for the “Officers of the United States.” Art. II, §2, cl. 2. They instead look to the President to guide the “assistants or deputies … subject to his superintendence.” The Federalist No. 72, p. 487 (J. Cooke ed. 1961) (A. Hamilton). Without a clear and effective chain of command, the public cannot “determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.” Id., No. 70, at 476 (same). That is why the Framers sought to ensure that “those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.” 1 Annals of Cong., at 499 (J. Madison).
- Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010)
The problem with trying to cite this as proof that the President is not an officer, is that is doesn't say that. Just because you want a thing to say something when in says something materially different, does not make that thing say what you want it to. SCOTUS in Free Enterprise Fund v. Public Company Accounting Oversight Bd. (2010) deals with a different subject matter entirely.
The 14th Amendment which was written in the aftermath of the Civil War, was designed to deal with the possible consequences of having officers occupy positions of power, after they had waged war against the United States. In the Reconstruction Era, it was reasonably obvious that someone who had waged war against the United States (while still being a part of it according to White v. Texas (1869)) should be barred from holding office.
https://www.law.cornell.edu/constitution/amendmentxiv
Section 3.
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. But Congress may by a vote of two-thirds of each House, remove such disability.
- 14th Amendment, US Constitution,
The thing that the framers of the US Constitution never envisaged, and likely the writers of the 14th Amendment didn't foresee either, was that the President himself might be a total knave. Specifically the person of Donald J Trump has taught a lot of people about Constitutional law because he personally has tested so very very much of it. Or rather, they should have learnt something about Constitutional law because seemingly, they have not. The United States is prone to excessive myth making surrounding its Founding Fathers and very much engages in more myth making surrounding its current players, as though they were blindly supporting a football team.
What is really maddening about the reaction to the decision by the Colorado Supreme Court is that many people aren't even trying to argue the court erred. Instead what they are effectively saying is that the plain text of the Constitution should be ignored, that the meanings of the words therein should be ignored, that decisions which don't actually have material standing can be cited as support, and that Mr. Trump should be allowed to run for office (which they don't think makes him an officer despite holding an officer), purely for the sake of avoiding political controversy even though he has been cited in what is now going on for hundreds of cases as having incited in insurrection and rebellion against the United States and given comfort to the enemies thereof.
Then again what do I know? Applying the definition of words to text, reading the plain text of the law, and building a well constructed argument based upon those things, is completely useless when people have abandoned thought.
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