|
In response to
"However the Constitution gets to define eligiblity for the office itself (35+, etc) so as long as a guy is eligible (as determined by the 14th or "
by
Will Hunting
|
Yep. That's enough of a toe-hold for Gorsuch, Kavanaugh, and Comey Barrett to thread the needle.
|
There are some really interesting questions of federalism here, despite the surrounding circus. We're butting up against the same questions as in Bush v. Gore: How do the federal courts properly respect an election system based on two separate but related governments?
Federal law (esp. the U.S. Constitution) sets all the eligibility requirements for serving in office.
State laws govern how folks are elected to those offices.
So, assuming SCOTUS agrees that insurrectionists are banned from holding federal office under the 14th Amendment, and assuming that SCOTUS defers to the judicial decisions of the State of Colorado, the only option to keep Trump on the ballot is to limit the scope of the inquiry and distinguish legal standards of "eligibility to serve in office" apart from "eligibility to run for office."
And there is precedent to rely on. Powell v. McCormack provides an analogous basis. In that case, SCOTUS ruled that Congress could not refuse to seat a duly elected Congressional Representative (Adam Clayton Powell), but -- at the same time -- the House of Representatives had the authority to remove any Member for malfeasance or gross misbehavior. Kind of a distinction without much of a difference.
So, I'm kind of leaning in that direction. If I had to predict the eventual decision, I think SCOTUS will say that only federal courts have jurisdiction over the questions regarding the 14th Amendment insurrection clause, and then hint that Trump is not eligible for office.
Which would cause immense amounts of chaos, but that's the Court we have now.
|
Responses:
|