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By Dan Kennedy • The press, politics, technology, culture and other passions

Tag: 14th Amendment

SCOTUS is the right body to decide whether Trump ‘engaged in insurrection’

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On January 2, 2024

In Politics

The case for disqualifying Donald Trump from running for president is almost certainly headed for the U.S. Supreme Court, and that’s exactly where it belongs. The court needs to make a determination as to whether Trump “engaged in insurrection” on Jan. 6, 2021. He did. We watched him do it. But without an official ruling of some sort, it would be illegitimate to throw him off the ballot.

A 4-3 ruling by the Colorado Supreme Court doesn’t get the job done. Neither does an opinion issued by Maine Secretary of State Shenna Bellows. Nevertheless, they both did the country a service, because they’ve started the wheels turning to resolve this issue once and for all — or at least for the 2024 election. Let’s look at what Section 3 of the 14th Amendment says:

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.

Now, the Supremes may cop out by claiming that candidates for president aren’t specifically covered by Section 3, or that it was intended solely to prevent Confederate officials from seeking political positions. That would be a travesty. Because what we really need to know is whether SCOTUS believes that Trump “engaged in insurrection” by whipping up a mob of supporters in an attempt to prevent Congress from certifying Joe Biden’s victory. Again, we know he did it. But that’s not the same as a congressional determination, which we don’t have, or a Supreme Court ruling, which we almost certainly will. What does it mean, legally and constitutionally, to attempt an insurrection against the government?

I’m not saying that I trust the court; quite the contrary. But we only have one Supreme Court, and thus it’s important that the justices weigh in. Much of the debate over the 14th Amendment has been profoundly unserious. Voters should have the right to decide? Not if a candidate is ineligible. That’s why someone younger than 35 or who’s born in another country can’t run. Throwing Trump off the ballot would risk violence and rebellion? Then why have a Constitution in the first place? We are a country of laws, or at least that’s the idea.

The decision needs to be made by an institution that we would all recognize as having the last word, whether we agree or not. The Supreme Court is that institution. I wish we had a better court, but that’s an issue for another day.

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How Denver’s media are reporting a ruling to keep Trump off the Colorado ballot

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On December 20, 2023

In Local News

Donald Trump at the Air Force Academy Commencement in Colorado Springs in 2019. Photo by Trump White House Archived.

Following the Colorado Supreme Court’s ruling that Donald Trump has disqualified himself from appearing on the state’s Republican primary ballot, I thought I’d check in with the Denver media to see how they covered it. I started with The Colorado Sun, a digital startup that is one of the projects Ellen Clegg and I write about in our forthcoming book, “What Works in Community News.”

The Sun has a lengthy account by its chief political reporter, Jesse Paul. His story plays it straight, although it’s informed by his deep knowledge of the players in Colorado. What stands out to me is that the court went to some lengths to determine that Trump did, in fact, try to foment an insurrection on Jan. 6, 2021. Under the 14th Amendment, insurrectionists may not run for federal office, although that clause is the subject of many different interpretations. Paul quotes from the majority decision:

The record amply established that the events of Jan. 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. Under any viable definition, this constituted an insurrection.

The Colorado court’s decision will almost certainly be heard by the U.S. Supreme Court. If it’s upheld, then Trump would be banned not just from the state’s primary ballot but also — should he be the Republican nominee — the general election ballot in November 2024. Other states are considering the same action.

In The Denver Post, the city’s legacy daily newspaper, reporter Nick Coltrain interviews University of Colorado law professor Doug Spencer, who says that the purpose of the Colorado lawsuit that resulted in Tuesday’s ruling is to ensure that Trump can’t be elected to a second term next fall. Spencer told Coltrain that the lawsuit “was never really about keeping Trump’s name off Colorado’s ballot, because he was never going to win our electoral votes. It was about using our state law to get a ruling like this — and maybe now other courts will look at this and maybe not be so skittish.”

Colorado Public Radio, which may be the state’s largest news organization, takes on an issue that is sure to be raised by Trump’s lawyers and supporters: How can a state court find that Trump engaged in an insurrection given that there has been no federal finding to that effect? After all, the Senate failed to convict Trump after the House impeached him on what was essentially an insurrection case; he has not yet gone to trial on insurrection-related criminal charges; and there has been no congressional resolution passed by both branches finding that he tried to overturn the election.

But Bente Berkeland’s story for Colorado Public Radio notes the majority decision finds that Section 3 of the 14th Amendment does not require any further legal proceedings in order for its provisions to take effect. She writes that the decision…

…also reaffirms that, under Colorado law, the court has jurisdiction to bar disqualified candidates from the Republican Party’s primary ballot. They also concluded that the judicial branch is empowered to apply the clause.

“Congress does not need to pass implementing legislation for Section Three’s disqualification provision to attach,” the ruling states. “Section Three is, in that sense, self-executing.”

The city also has a second daily newspaper — The Denver Gazette, a digital-only outlet started several years ago by Colorado billionaire Philip Anschutz. The Gazette has a hard paywall, but I see that it leads today’s e-paper (there is no actual print edition) with a story on the court’s decision written by reporter Michael Karlik.

So now it’s on to the U.S. Supreme Court. Just as a layperson, it seems to me that the most significant issue before the Supremes is whether they can determine on their own authority that Trump engaged in an attempted insurrection or if instead they’re constrained by the lack of a congressional determination or a criminal conviction. We may assume that Trump begins with two aces in the hole: Justices Clarence Thomas and Sam Alito. Can he get to five?

Still, the Colorado decision was a landmark of sorts. As Paul wrote in the Sun: “The Colorado Supreme Court ruling marks the first time that the insurrection clause has been used to block a presidential candidate from appearing on the ballot.” That’s a dubious distinction in a long line of dubious distinctions for Trump, who, depending on how quickly the courts can move, might not only be disqualified from running but could also be sitting in a prison cell by Election Day.

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A quick guide to the debt ceiling crisis. Or, why it’s all the Republicans’ fault.

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On May 26, 2023

In Media, Politics

There must be a $1 trillion platinum coin in there somewhere. Photo (cc) 2016 by cweyant.

I imagine most readers of this blog understand the ins and outs of the debt ceiling fiasco, but in case you don’t, a brief explanation.

The debt ceiling is an extra, and entirely unnecessary, appendage to the work of passing budgets and appropriating money. Congress gets to debate what should go into the budget, and that’s an opportunity for those who want hold down spending to make their case and put it to a vote. But once the budget is passed, that’s the end (or at least it should be), and if the executive needs to borrow money to fulfill that budget, then so be it.

For the past century, though, congressional action has been needed to approve more borrowing, even though that borrowing is to cover spending that has already been approved, and in many cases has already taken place. No one thought much about it until recently, but in 2011 congressional Republicans refused to raise the debt ceiling unless President Obama made concessions, and now House Republicans are attempting to do the same with President Biden.

The only other Western democracy that countenances this foolishness is Denmark. Try buying a car with a loan and then telling the finance company that your family has voted not to approve the monthly payments. Bye bye car.

You’ll note that this only happens when there’s a Democratic president and one or both branches of Congress is controlled by Republicans. President Trump ran up enormous deficits, and the debt ceiling was routinely increased on a bipartisan basis to accommodate those deficits. Other than a few rogue individual votes here and there, Democrats have never sought to exploit the debt ceiling, because — whatever their faults — they belong to a party that believes in basic governance.

Sadly, though, the debt ceiling negotiations have occasioned an outpouring of terrible both-sides media coverage. Gosh, why can’t Democrats and Republicans come together for the good of the country?

Click on image of post to follow link to the NPR story

The hypocrisy and phoniness surrounding this issue are why a lot of observers are calling on Biden to invoke the 14th Amendment, which states in part, “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” Or to mint the coin.

In any case, if and when Democrats are fully in power again, they ought to repeal the debt ceiling so we can go about our business like a normal country.

Trump did not say the 14th Amendment is unconstitutional

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On August 20, 2015

In Media, Politics

(Courtesy of the Byrom-Daufel family) Most 19th Century Chinese immigrants were single men, but a few families lived in the Portland area. The Byrom-Daufel family of Tualatin retained this portrait, but descendents no longer have the Chinese family name. Scan from print.

Chinese immigrants in Oregon. Birthright citizenship dates to 1898, when the Supreme Court cited the 14th Amendment in overturning a California law. Photo published by The Oregonian, courtesy of the Byrom-Daufel family.

My Facebook feed is filling up with posts from liberal friends informing me that Donald Trump is, among many other bad things, an ignoramus when it comes to the Constitution.

Trump allegedly stepped in it on Tuesday, telling Bill O’Reilly of Fox News that the 14th Amendment wouldn’t necessarily impede his rather horrifying proposal to deny citizenship to the children of undocumented immigrants born in the United States.

Cue the outraged headlines. “Donald Trump says 14th Amendment is unconstitutional” is the takeaway at Yahoo Politics. Or consider this, from Politico: “Trump to O’Reilly: 14th Amendment is unconstitutional.” Or Mother Jones: “Trump: The 14th Amendment Is Unconstitutional.”

Of course, it’s fun to think Trump is such a buffoon that he doesn’t realize something that’s part of the Constitution can’t be unconstitutional. All he’d need to do is spend a few minutes watching “Schoolhouse Rock!” videos on YouTube to disabuse himself of that notion.

But that’s not what Trump said. In fact, Trump made the perfectly reasonable assertion that the federal courts may be willing to revisit how they interpret the 14th Amendment. Trump told O’Reilly:

Bill, [lawyers are] saying, “It’s not going to hold up in court, it’s going to have to be tested.” I don’t think they have American citizenship, and if you speak to some very, very good lawyers, some would disagree…. But many of them agree with me — you’re going to find they do not have American citizenship. [Quotes transcribed by Inae Oh of Mother Jones, whose story is more accurate than the headline under which it appears.]

Birthright citizenship is not exactly a new issue. Jenna Johnson of The Washington Post noted earlier this week that, back in the early 1990s, none other than future Senate Democratic leader Harry Reid supported reinterpreting the 14th Amendment in order to end automatic citizenship — thus confirming a remark made on the campaign trail by Scott Walker, one of several Republican presidential candidates who have joined Trump in opposing it.

In searching the archives, I couldn’t find a specific reference to Reid. But The New York Times reported in December 1995 that House Republicans and some Democrats supported an end to birthright citizenship, with most arguing that a constitutional amendment would be needed and others claiming that legislation would suffice. Any attempt to enforce such legislation would have triggered exactly the sort of court challenge that Trump envisions.

And it’s not as though the 14th Amendment has stood immutable over time. After all, it wasn’t until 1954 that the Supreme Court ruled, in Brown v. Board of Education, that the amendment’s guarantee of “equal protection of the laws” forbade segregation in the public schools.

Birthright citizenship was recognized by the Supreme Court in 1898, three decades after enactment of the 14th Amendment. In that case, according to the 1995 Times article, the court overturned a California law that had been used to deny citizenship to children born in the United States whose parents were Chinese immigrants.

Trump’s rhetoric represents the worst kind of nativism, and he should be held to account for his words. But what he’s actually saying is bad enough. When the media exaggerate and distort, they hand him an undeserved victory.

Also published at The Huffington Post.

Cautions aside, a great day for marriage rights

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On August 5, 2010

In Society

Two must-see features following Wednesday’s decision by a federal judge to overturn the California ban on same-sex marriage.

First, Dahlia Lithwick of Slate has a sharp analysis of how U.S. District Court Judge Vaughn Walker crafted his decision by quoting fulsomely from past decisions written by Supreme Court Justice Anthony Kennedy (via @GratuitousV). Noting that Kennedy would surely be the pivotal vote if and when gay marriage comes before the court, Lithwick writes:

Any way you look at it, today’s decision was written for a court of one — Kennedy — the man who has written most eloquently about dignity and freedom and the right to determine one’s own humanity. The real triumph of Perry v. Schwarzenegger may be that it talks in the very loftiest terms about matters rooted in logic, science, money, social psychology, and fact.

Second, Boston.com’s Big Picture posted a terrific series of photos showing gay and lesbian couples getting married. The timing was exquisite: the series was posted a few hours before Judge Walker issued his ruling. Have a look.

I hope Wednesday marks the beginning of the end for marriage discrimination in America, but we all know there’s a long way to go. Among other things, Walker’s opinion was based on the 14th Amendment’s 142-year-old guarantees of equal protection and due process — and the Republican Party, sealing itself ever deeper inside its anti-reality cocoon, is now questioning whether the 14th Amendment should be modified.

Yes, the intent is to find new ways to torment the children of illegal immigrants. But once the amendment is open for discussion, one awful idea tends to lead to another.

Still, Wednesday was a great day, even if it’s too early to celebrate.

Photo via WikiMedia Commons.

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