Abbreviated Pundit Roundup: The legal and political significance of Anderson v. Griswold

Today’s APR will feature various legal and political analyses of Anderson v. Griswold, the Colorado Supreme Court decision declaring that Donald Trump is disqualified from appearing on that state’s Republican primary ballot because Trump engaged in insurrection against the United States.

We begin with Ilya Somin of Reason magazine who says that the Colorado Supreme Court got it right.

I can’t give anything like a complete analysis of the 213 pages of majority and dissenting opinions here. But I think the 4-3 majority got it right. Trump is indeed ineligible.

The per curiam majority opinion does an excellent job of handling all the major issues at stake: whether the January 6 attack was an insurrection, whether Trump’s role in it was extensive enough to qualify as engagement, whether the president is an “officer of the United States,” and whether Section 3 is “self-executing” (that is, whether state governments and courts can enforce it in the absence of specialized congressional legislation). In the process, the justices partly affirmed and partly overruled the trial court decision, which held that Trump did indeed engage in insurrection, but let him off the hook on the badly flawed ground that Section 3 doesn’t apply to the president […]

Justice Samour, the only one of the three dissenters who based his position on any federal constitutional issue, argues that Section 3 cannot be self-executing because making it so would deprive candidates for office of the “due process of law.” But the Due Process Clause of the Fifth Amendment only provides a guarantee of due process before a person can be deprived of “life, liberty, or property.”

Disqualification under Section 3 doesn’t threaten any of these. Loss of eligibility for holding various types of public offices pretty obviously doesn’t threaten anyone’s life or property rights. And it isn’t a threat to liberty, either. No one claims that the Twenty-Second Amendment deprives people of “liberty” merely because they become ineligible for the presidency if they have already served two terms.

OTOH, Ruth Marcus of The Washington Post says that the Colorado Supreme Court got it wrong and that the U.S. Supreme Court should overturn the decision with an unanimous 8-0 vote.

The three dissenting justices each wrote separately. The most interesting came from Justice Carlos Samour Jr., who said barring Trump from the ballot without legislation from Congress implementing Section 3 violates Trump’s due process rights, especially because Trump has not been charged with insurrection.

“More broadly, I am disturbed about the potential chaos wrought by an imprudent, unconstitutional, and standardless system in which each state gets to adjudicate Section Three disqualification cases on an ad hoc basis,” Samour wrote. “Surely, this enlargement of state power is antithetical to the framers’ intent.”

Chaos indeed, which is why the high court needs to step in. Beyond what I think is the unconvincing avenue of text-parsing arguments about the meanings of “office” and “officer,” the justices have two major potential off-ramps at their disposal.

One — and this would be my preference — involves the question Samour raised: whether Section 3 is self-executing. Here, the justices have the benefit of a decision by Chief Justice Salmon P. Chase in 1869 — the year after the 14th Amendment was ratified — that Section 3 requires enabling legislation.

Anastasia P. Boden of the CATO Institute’s “CATO at Liberty” blog thinks that the Colorado Supreme Court decision is a masterpiece of legal argument.

Whether one thinks the Colorado Supreme Court was right or wrong, its lengthy opinion is a triumph of judicial engagement. There’s no doubt it’s a good faith attempt to grapple with a vague constitutional provision. It’s transparent, it’s thorough (213 pages, including the three dissents), it engages with the arguments (all of them, even those that were arguably waived), and it declines to take any of the several available escape hatches that would have allowed the court to shy away from deciding the merits.

It is therefore so much more satisfying than most other cases, which manipulate standing doctrine or pick a ripeness, mootness, immunity, or abstention doctrine out of a hat to toss the case out of court. […]

Given how many hurdles the court had to jump through to get to the merits, it’s kind of amazing it did. Take, for example, the very first argument made by Trump: his attorneys argued that the electors could not sue to prevent the Secretary of State from putting him on the ballot because the Secretary has no duty to independently investigate the candidate’s eligibility. Instead, she need only rely on the political party’s statement that the person is their bona fide candidate. This is exactly the type of pedantic argument government attorneys make all the time, but the court wasn’t having it.

Elie Mystal of The Nation agrees with Ms. Boden but thinks that the U.S. Supreme Court will ignore the Colorado Supreme Court’s “originalist” arguments.

Donald Trump engaged in insurrection. That’s not me saying it, or Jack Smith saying it; that’s what the first court to hear this case, the Colorado state court, ruled at trial a few weeks ago. The trial court found that Trump engaged in insurrection, but twisted itself into an illogical knot to say that Section 3 didn’t apply to Trump because he was the president of the United States, and not an “officer” of the United States.

That was silly. Most of what the Colorado State Supreme Court did in its 215-page opinion unraveled that logical inconsistency, and applied a more accurate interpretation of Section 3 and Colorado state law to the facts (that Trump is an insurrectionist) that were found by the trial court. If the 14th Amendment means what it says, this isn’t a controversial opinion, legally speaking. Insurrectionists cannot hold office again. […]

…Despite the fact that the text of the law, conservative ideology, and some of the justices’ own words are on the side of Colorado in this case, I fully expect the Republicans on the Supreme Court to ignore all that and restore Trump to the Colorado ballot. You see, the problem with beating conservatives at their own game is that they don’t care about their own rules. It’s easy for them to make up new rules that contradict the old ones, as they go along, because they are not bound by principle. They’re only concerned about power.

Jesse Wegman of The New York Times notes that the Colorado Supreme Court’s ruling in Anderson v. Griswold is a significant rebuke of Trump and Trumpism.

Mr. Trump’s appeal of the Colorado ruling to the U.S. Supreme Court would give the justices three Jan. 6-related cases on their docket, all demanding resolution well in advance of the 2024 election. (The other two involve Mr. Trump’s claim of immunityfrom prosecution and a challenge to a federal obstruction law used to prosecute many Jan. 6 attackers, as well as Mr. Trump.)

As the justices in Washington weigh these matters, they will no doubt be aware of the political unrest surrounding them. They know that Mr. Trump has built a large political following and is marshaling his followers to turn against the justice system for indicting him, to intimidate law enforcement officials and court personnel and anyone else who gets in his way. They are aware that he will whip his die-hard followers into a frenzy against the Supreme Court itself, just as he unleashed his followers to try to bend Congress to his will on Jan. 6.

The justices’ challenge will be to face all of this head-on rather than to run scared from it, as so many Republican lawmakers did on that day, when they continued objecting to the certification of Joe Biden’s electoral votes even after the bloody attack on their workplace. The justices’ challenge is to not twist the law in a craven effort to appease an authoritarian movement that sees violence as the answer, win or lose.

Will Bunch of The Philadelphia Inquirer thinks that we need take more notice of what is happening at public universities like Youngstown State University and other public colleges and universities in Republican-dominated states like Ohio.

Can we please stop talking about Harvard for a moment and have a conversation about Youngstown State?

It’s not just that the Ohio public university — in the heart of the Mahoning Valley, a rust belt of dead factories near the Pennsylvania border — educates more of America’s children (8,673 undergrads) than the Massachusetts-based Ivy League flagship (7,240), or that those kids probably rack up more debt than their peers at Harvard, which has more generous financial aid. It’s that the middle-class offspring of Middle America are the ones most in need of what college has to offer.

No wonder faculty, alumni, and students were outraged when the nine trustees of Youngstown State — named by Republican governors in this increasingly red state — bypassed the normal search process to shock the campus with its new president, a Tea Party-era right-wing Republican congressman named Bill Johnson.

It’s not just that Johnson was a military man before his 2010 election to Congress and has zero experience in academia, let alone running a large university. Many in the Youngstown State community are outraged that an institution supposedly dedicated to the pursuit of truth will be led by a politician who less than three years ago signed onto the Big Lie, voting with dozens of other GOP lawmakers in their failed effort to block President Joe Biden’s 2020 victory.

Heather Cox Richardson writes for her “Letters of an American” Substack about the many dimensions of politics behind the passage of S.B.4 by Texas Republicans.

Texas Republicans are eager to exploit the issue of immigration, especially as voters are demonstrably angry over Texas’s extreme antiabortion law that has been in the news since 31-year-old Texas woman Kate Cox was forced to leave the state to obtain abortion care to protect her own health after she learned her fetus had a condition that was not compatible with life.

Republicans are trying to make immigration as powerful an issue as abortion, insisting, for example, that they will not approve emergency supplemental funding for Ukraine’s war against Russia’s invasion until President Joe Biden and the Democrats agree to their increasingly extremist demands on immigration. And yet, while Biden is so determined to get support for Ukraine that he has signaled he will risk infuriating Democratic progressives by making concessions, House Republicans have left town for the holidays, and Senate Republicans say there will not be a deal before the end of the year.

It is not at all clear that Republicans actually want to replace the outdated immigration laws that are currently in place, preferring to preserve the issue to hammer Biden in 2024.

At stake in Texas’s S.B. 4, though, is not just immigration, but also the larger question of the relationship between states and the federal government. Yesterday, civil rights and immigrant groups filed a lawsuit in Austin federal court noting that the law “violates the Supremacy Clause of the United States Constitution” and that “the federal government has exclusive power over immigration.”

Wojciech Kość of POLITICO Europe reports that the newly elected Polish parliament has seized control of Polish public media and that members of now-opposition Law and Justice (PiS) party are not happy about it.

Poland’s new government moved Wednesday to seize control of the country’s publicly owned television, radio and news agency from the hands of loyalists to the Law and Justice (PiS) party, which lost power following the October 15 parliamentary election.

It’s part of a broader revolution that has the new parliament setting up special commissions to investigate the actions of the former government — in power from 2015 to this year. The new government is also replacing the heads of security agencies. […]

Wednesday’s move was greeted with fury by PiS MPs, many of whom have taken up residence in the TVP headquarters in Warsaw in an effort to block management changes. They were joined by Jarosław Kaczyński, the leader of PiS and Poland’s de facto ruler from 2015 to this year’s general election.

“This is a defense of democracy,” he said on Tuesday evening. “In every democracy there must be strong anti-government media.”

Finally today, I came across Ted Widmer’s month-old interview with the Civil War and Reconstruction historian Eric Foner about the historical context of 14th Amendment to the U.S. Constitution at the Guardian.

[WIDMER]: Unlike the Declaration of Independence, or the constitution, whose signers are well known, the 14th amendment is more anonymous. Who were the principal authors?

[FONER]: It was written by the joint committee on Reconstruction, a 15-member body set up by Congress to figure out what laws and constitutional amendments were necessary to enforce the verdict of the civil war. […]

But who remembers John Bingham, the congressman from Ohio, who was more responsible than anyone else for the first section of the 14th amendment, about the federal government having the power to prevent states from denying Americans equality? We don’t remember Thaddeus Stevens, the great radical Republican from Pennsylvania who was the floor leader in the House, who did more than anyone else to get the 14th amendment ratified. We don’t remember James Howard, from Michigan, who got it through the Senate. In other words, the 14th amendment is not seen as fundamental to our constitutional system, whereas, of course, the original constitution is.

So what I say in my book is, we’ve got to think of these people as like the founding fathers. This was a refounding of the nation, and the people who were critical in that deserve to be remembered.


Have the best possible day everyone!


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