BONUS: SCOTUS Hears Colorado Ballot Issue
In a bonus episode of "Rachel Maddow Presents: Déjà News," a powerhouse panel including Justices John Roberts, Clarence Thomas, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, Samuel Alito, Ketanji Brown Jackson, Brett Kavanaugh, Neil Gorsuch, and legal experts Jonathan Mitchell, Jason Murray, and Shannon Stevenson delve into the complexities of Section 3 of the 14th Amendment and its implications for former President Trump. The discussion orbits around the crucial question: Could Trump's actions be deemed insurrection, barring him from future federal positions?
The episode weaves through historical context, legal precedents, and contemporary interpretations as speakers debate the meaning of "office under the United States," the enforceability of Section 3, and the states' authority to exclude candidates based on the Electors Clause. Concerns over the potential lack of uniform enforcement across states bring tension to the fore, while the examination of January 6th as a basis for disqualification stirs a clash of opinions. Listen to this insightful conversation as it lays bare the legal intricacies and possible ramifications, capturing a significant moment in the nation's constitutional discourse.
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1-Page Summary
Whether Section 3 of the 14th Amendment Disqualifies Former President Trump from Future Federal Office
The debate explores the implications of section 3 of the 14th Amendment on former President Trump's eligibility to hold future federal office. Legal experts are investigating if Mr. Trump's actions qualify as insurrection and thus could disqualify him from federal positions, including the presidency.
Meaning and Scope of "Office under the United States" in Section 3
Justice Ketanji Brown Jackson notes that "President" and "Vice President" are not explicitly listed in the 14th Amendment's disqualification clause. Jonathan Mitchell and Jason Murray argue whether these roles fall under "office under the United States." Mitchell believes the framers did not intend to include the presidency, referencing a draft of Section 3. Conversely, Murray insists that the term encompasses all who swear an oath to an office, including the President.
Neil Gorsuch differentiates between "office" and "officer," suggesting presidents are not "officers of the United States" as they are elected, not appointed, and therefore do not fall under Section 3. Murray agrees with the distinction but highlights the broad definition within Section 3.
Self-Execution and Enforceability of Section 3
Mitchell suggests, referencing Chief Justice Chase's opinion in Griffin's case, that without Congressional action Section 3 is not self-executing. Gorsuch believes in immediate disqualification under Section 3 without further process, while Murray argues for a necessary procedure to determine disqualification. Furthermore, they discuss whether states can enforce Section 3 independently, referencing Sotomayor's view on the Griffin case and its impact on the Enforcement Act of 1870.
State Authority to Exclude Candidates Under the Electors Clause
Murray and Mitchell debate states' powers under Article II to choose presidential electors, with Murray supporting state enforcement of Section 3 and Mitchell expressing doubts about the Secretary of State's authority to predict Congressional waivers to admitted insurrectionists. Kavanaugh and Mitchell consider state enforcement of disqualification since Section 3's ratification, concluding there have been no such attempts.
Alito and Mitchell examine historical applications of Section 3 by states. Referring to Griffin's case, they discuss the established understanding that only Congress has the authority to enforce Section 3, shaping the Enforcement Act of 1870.
Concerns Over Lack of Uniform Enforcement
Chief Justice Roberts and others articulate concerns about inconsistent application of disqualification standards across states. Jason Murray argues for state enforcement as a backup when there is no federal action, while Justice Jackson worries about non-uniformity in presidential elections.
Insurrection on January 6th as Basis for Disqualification
The discussion centers on whether the January 6th events qualify as "insurrection." While Stevenson argues for a clear disqualification for an "avowed insurrectionist," Mitchell contests that the day's events don't meet the criterion for an insurrection. This necessitates an organized and violent attempt to overthrow the government. Conversely, Murray points to Trump's actions suggesting involvement in an insurrection against the Constitution.
In conclusion, the conversation reflects an intricate legal examination concerning the impacts of Section 3 of the 14th Amendment and its relevance to former President Trump's capability to serve in federal office again.
1-Page Summary
Additional Materials
Clarifications
- Section 3 of the 14th Amendment to the United States Constitution addresses the issue of individuals who have engaged in insurrection or rebellion against the U.S. government. It states that those who have taken part in such activities are disqualified from holding public office unless Congress grants them a pardon. This section was primarily aimed at former Confederates after the Civil War but has broader implications for anyone who has participated in insurrection against the government. The interpretation and application of this section, especially in the context of former President Trump's actions and potential disqualification from future federal office, are subjects of legal debate and analysis.
- The distinction between "office" and "officer" in the context of the United States presidency is related to the interpretation of the 14th Amendment's Section 3. "Office" typically denotes the position or role itself, while "officer" often implies someone appointed or commissioned to hold that position. In the case of the presidency, the debate revolves around whether the President, being elected rather than appointed, falls under the category of "officer of the United States" as outlined in the 14th Amendment. This distinction is crucial in determining the applicability of Section 3's disqualification criteria to the President.
- The debate centers on interpreting whether the term "office under the United States" in the 14th Amendment includes the presidency. Some argue that the presidency is not explicitly mentioned in the disqualification clause, leading to differing opinions on its inclusion. The discussion involves contrasting views on whether the presidency should be considered an "office under the United States" based on historical context and legal interpretations. This debate highlights the complexity of defining the scope of the 14th Amendment's disqualification clause in relation to the highest federal office in the United States.
- The discussion on state authority to exclude candidates under the Electors Clause revolves around the powers granted to states in Article II of the U.S. Constitution to appoint presidential electors. This clause allows states to determine how electors are chosen and the process for selecting the President. The debate in the text focuses on whether states have the authority to enforce Section 3 of the 14th Amendment, which deals with disqualification from federal office due to participation in insurrection. The conversation delves into the historical context and legal interpretations regarding the role of states in potentially excluding candidates based on this constitutional provision.
- The concerns over the lack of uniform enforcement of disqualification standards across states highlight the potential inconsistency in how different states may interpret and apply rules regarding disqualifying individuals from holding federal office. This issue raises questions about the fairness and consistency of the process, as varying standards could lead to different outcomes for similar cases in different states. It underscores the need for clarity and consistency in enforcing disqualification standards to ensure a level playing field in federal elections. This lack of uniformity could impact the integrity and legitimacy of the electoral process at the federal level.
- The term "insurrection" typically involves a coordinated and violent effort to overthrow a government or disrupt its operations. In the context of the events of January 6th, 2021, the debate revolves around whether the actions that occurred on that day meet the legal threshold of an insurrection. This determination considers factors such as the level of organization, intent to subvert governmental processes, and the use of force in attempting to achieve political goals. The assessment of whether the events of January 6th constitute an insurrection is crucial in discussions regarding potential disqualification under Section 3 of the 14th Amendment.
Counterarguments
- Justice Ketanji Brown Jackson's observation that "President" and "Vice President" are not explicitly listed in the 14th Amendment's disqualification clause could be countered by arguing that the omission does not necessarily imply exclusion, as the Constitution often speaks in general terms to allow for broad application.
- Jonathan Mitchell's belief that the framers did not intend to include the presidency in Section 3 could be challenged by the argument that the framers intended the Constitution to be a living document, adaptable to changing circumstances, including unforeseen threats to the Republic.
- Jason Murray's insistence that "office under the United States" includes all oath-takers could be met with the counterargument that the framers may have intended a more narrow interpretation, specifically excluding certain high offices such as the presidency for reasons of sovereignty and the separation of powers.
- Neil Gorsuch's suggestion that presidents are not "officers of the United States" could be countered by arguing that the President, as the chief executive, is indeed an officer under the broad understanding of the term as someone who holds a position of authority in the government.
- Mitchell's suggestion that Section 3 is not self-executing without Congressional action could be challenged by the view that the plain language of the Constitution should be enforceable by the judiciary without the need for additional legislation.
- Gorsuch's belief in immediate disqualification under Section 3 without further process could be countered with the argument that due process is a fundamental right and any disqualification should be subject to judicial or legislative review to prevent arbitrary enforcement.
- Murray's argument for a necessary procedure to determine disqualification could be met with the counterargument that adding procedural requirements could unduly delay or complicate the enforcement of clear constitutional provisions.
- Mitchell's doubts about the Secretary of State's authority could be countered by arguing that states have a role in ensuring the integrity of their ballots and may have the authority to enforce federal constitutional standards.
- Kavanaugh and Mitchell's consideration of state enforcement of disqualification could be challenged by the argument that the lack of historical attempts does not preclude states from acting now, especially if the federal government fails to enforce the Constitution.
- Alito and Mitchell's discussion on historical understanding could be countered by arguing that historical practices should not constrain current interpretations and applications of constitutional provisions, especially in light of evolving democratic principles.
- Chief Justice Roberts' concerns about inconsistent application could be met with the counterargument that federal standards could be established to guide states, ensuring uniformity while preserving state authority.
- Jason Murray's argument for state enforcement as a backup could be countered by the view that federal issues should be handled at the federal level to maintain consistency and prevent a patchwork of enforcement.
- Justice Jackson's worry about non-uniformity in presidential elections could be challenged by arguing that federal oversight and clear guidelines could mitigate these concerns while still allowing for state-level enforcement.
- Stevenson's argument for clear disqualification could be countered by the view that the term "insurrection" is subject to legal interpretation and that due process is required to establish such a disqualification.
- Mitchell's contestation that the January 6th events don't meet the criterion for an insurrection could be met with the argument that the determination of what constitutes an insurrection should be based on a thorough legal analysis of the facts and intent, rather than a predetermined threshold of violence or organization.
- Murray's point about Trump's actions suggesting involvement in an insurrection could be countered by arguing that any such involvement must be proven in a legal setting, where the former President would have the opportunity to defend himself against such allegations.
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Whether Section 3 of the 14th Amendment Disqualifies Former President Trump from Future Federal Office
The legal discussion centers on the applicability of Section 3 of the 14th Amendment to former President Trump, examining whether his actions can be characterized as insurrection and, consequently, whether they disqualify him from holding future federal office.
Meaning and Scope of "Office under the United States" in Section 3
Whether the presidency constitutes an "office under the United States" or the President is an "officer of the United States"
Justice Ketanji Brown Jackson contemplates the absence of explicit mention of the "President" or "Vice President" in the list of offices from which one could be barred under Section 3. Jonathan Mitchell and Jason Murray engage in a debate over whether these positions are encompassed by the phrase "office under the United States" with Jonathan Mitchell arguing that the framers did not focus on the presidency while drafting Section 3, but rather on the risk of former Confederates infiltrating state governments and Congress. Mitchell also references a draft of Section 3 that mentioned the presidency, indicating some consideration of it in the framers' discussions.
Use of "officer" and "office" in other constitutional provisions
Neil Gorsuch raises the distinction between "office" and "officer" within the Constitution's context while Jonathan Mitchell asserts that the president and vice president are not "officers of the United States" because they are elected, not appointed, and therefore not covered by Section 3. Jason Murray acknowledges the distinction but emphasizes that, in Section 3, an "officer of the United States" is someone who swears an oath and holds an office, yet cites exceptions like the President pro tempore and the Speaker of the House.
Self-Execution and Enforceability of Section 3
Whether Section 3 is self-executing or requires Congressional legislation
Mitchell argues that based on Chief Justice Chase's opinion in Griffin's case, Section 3 is not self-executing without Congressional legislation. Gorsuch posits that disqualification under Section 3 is immediate and does not require additional procedures, while Murray argues for a procedure to adjudicate disqualification, even if it is considered self-executing.
Preemption of state enforcement
Debates around Griffin's case reveal differing views on whether states can enforce Section 3 without Congressional authorization, with Sotomayor noting the case is not a presidential decision from the Supreme Court but recognizing its influence on the Enforcement Act of 1870.
State Authority to Exclude Candidates Under the Electors Clause
Scope of state power to regulate elections under Article II
Jason Murray argues that states have broad power under Article II to select presidential electors and considers Section 3 in this process, while Jonathan Mitchell counters that no Secretary of State can predict the likelihood of Congress granting a waiver to an admitted insurrectionist. Kavanaugh and Mitchell discuss historical practice since Section 3's ratification, noting no attempts by states to enforce disqualification against federal officers.
Constraints on state power from other constitutional provisions
Alito and Mitchell delve into the history of states using Section 3 to bar federal officeholders, with Mitchell citing Griffin's case since 1870 as the settled understanding. Kavanaugh alludes to the original public meaning of Section 3, indicating Chase's opinion that only Congress ...
Here’s what you’ll find in our full summary
Whether Section 3 of the 14th Amendment Disqualifies Former President Trump from Future Federal Office
Additional Materials
Clarifications
- Section 3 of the 14th Amendment addresses the issue of individuals who have engaged in insurrection or rebellion against the United States. It prohibits those who have taken part in such activities from holding public office unless Congress grants them a pardon. The section was primarily aimed at former Confederates after the Civil War but has broader implications for disqualifying individuals involved in insurrection from future federal office. The interpretation and application of this section involve complex legal debates regarding its scope and enforcement.
- The debate over whether the presidency constitutes an "office under the United States" revolves around interpreting the language of the 14th Amendment. Some argue that the presidency is not explicitly mentioned in the list of offices covered by the amendment, leading to differing opinions on whether the President falls under this category. This debate involves discussions on the historical context of the 14th Amendment and the intent of its framers in relation to the eligibility of the President under Section 3.
- In the context of the Constitution, the term "office" typically refers to a position or role within the government, such as the presidency or a judgeship. On the other hand, an "officer" is an individual who holds an official position or title, like the President or a Cabinet member. This distinction is important in legal discussions to determine the applicability of certain constitutional provisions to different roles and positions within the government.
- Section 3 of the 14th Amendment addresses the disqualification of individuals who engaged in insurrection from holding federal office. The debate revolves around whether this disqualification is automatic upon meeting the criteria outlined in the amendment or if it requires additional legislation for enforcement. Some argue that Section 3 is self-executing, meaning disqualification occurs automatically, while others believe that Congressional action is necessary to enforce the disqualification. The interpretation of whether Section 3 is self-executing or requires Congressional legislation impacts how and when disqualification from federal office would take effect.
- Preemption of state enforcement regarding Section 3: Section 3 of the 14th Amendment addresses the disqualification of individuals who engaged in insurrection from holding federal office. The debate centers on whether states can enforce this disqualification independently or if Congressional authorization is required. The discussion explores the historical context and legal interpretations surrounding the enforcement of Section 3 by states without federal intervention. The varying perspectives consider the balance of state authority and federal oversight in applying the disqualification criteria outlined in the 14th Amendment.
- The Electors Clause in Article II of the U.S. Constitution grants states the authority to determine how presidential electors are chosen. This clause allows states to establish the process for selecting electors who then vote for the President and Vice President. States have broad power under this clause to regulate the selection of electors, which can include considerations related to Section 3 ...
Counterarguments
- The explicit mention of "President" or "Vice President" may not be necessary in Section 3 if the term "office under the United States" is interpreted broadly enough to include all federal positions, regardless of how they are filled.
- The framers' intent when drafting Section 3 could have been broad enough to include any office that could influence the stability of the federal government, including the presidency.
- The distinction between "office" and "officer" may not preclude the presidency from Section 3's scope if the term "office" is understood to encompass all positions of public trust under the United States.
- The fact that the president and vice president are elected rather than appointed may not exempt them from being considered "officers of the United States" if the focus is on the nature of the responsibilities and oath rather than the method of selection.
- The argument that Section 3 is not self-executing could be challenged by historical precedents where constitutional provisions have been applied directly without enabling legislation.
- The immediacy of disqualification under Section 3 could be questioned if due process considerations suggest the need for a formal adjudication before disqualification can be enforced.
- The role of states in enforcing Section 3 could be seen as problematic if it leads to a lack of uniformity in federal elections, potentially undermining the equal treatment of candidates across states.
- The broad power of states under Article II to select presidential electors may be limited ...
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