Trump: For Now, Off in Maine, On in California

The Fourteenth Amendment provides the basic rules of birthright citizenship, the rights of citizens, rules of due process and equality, and apportionment requirements. 

(Note to Nikki Haley: The Fourteenth Amendment arose from the aftermath of the Civil War. The end of slavery, the basic foundation of the conflict, was not enough. More had to be done to protect blacks and address the defeated people who fought the conflict.)  

The third and fourth sections are more obscure though debt ceiling fights have made the validity of the debt provision more well known. Now we are talking about the insurrection disqualification rule. Last applied (dubiously) to one person for acts during WWI.

[Note: See here. A minor official was disqualified for his actions during 1/6. The disqualification was generally a preventive bar after the Civil War. It does not seem that many people actually tried to get around it, requiring enforcement actions.] 

Congress could have passed legislation (one or more bills were posed) to provide some clarity, including a means for the attorney general to bring action to enforce it. None were passed unlike a move to address the counting of electoral votes. So, we are left with competing state actions. 

After the Colorado Supreme Court kept Trump off the ballot, the possibility of a Supreme Court review seemed much more likely. A few other state courts went another way. The matter is complicated by different state laws, including when (primary or general election?), who (courts, the secretary of state, or someone else), and how (what sort of process?) to challenge someone's right to be on the ballot. This will result in different results.

Lawfare has a convenient tracker. The last two state results provided conflicting bottom lines. The Maine Secretary of State (chosen by the legislature) applied state law in a well-argued (IMHO) opinion to keep Trump off the ballot. She also disposed of a trivial (if amusing) argument that Trump is barred by the 22nd Amendment since he claimed to win twice. Meanwhile, California with different rules went another way.

Note that the states that so far said Trump can be on the ballot did not firmly say he is qualified for the general election. The issue at hand is the primary ballot. Also, the dissents to the Colorado ruling split on their rationales. It is possible that some other process would be satisfactory. 

Some liberals are somewhat unexcited by the Maine ruling. Let it be noted that it is not final. The Maine Supreme Court might overturn it. I think saying it is "defensible" is damning it with faint praise. As to its value in the big picture, life is a matter of a million pushes and pulls. It also should be noted (like Colorado) that the January 6th Committee's report played an important role. For those who poo-pooed its importance.

I think it is appropriate and at least somewhat helpful. Make him seem legally tainted. And, this time it is not "the courts" but a representative of the legislature from the state with Susan Collins as a senator.  Let's avoid 14A, sec. 3 stupidity. Plus, it is not about "Democrats relying on this." OTOH  it is part of the Constitution. Maybe, sometime, a provision (see also, emoluments, impeachment, oath requirements, etc.) will count. 

No specific Supreme Court news to report for this week. The Chief Justice's End of the Year report should drop during the weekend.

Where did 2023 go? Is it 2025 yet? 

Supreme Court / Politics

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." -- Eleventh Amendment (1795)

The Eleventh Amendment grants a State immunity from suit in federal court by citizens of other States, U. S. Const., Amdt. 11, and by its own citizens as well, Hans v. Louisiana, 134 U. S. 1 (1890).

-- LAPIDES v. BOARD OF REGENTS OF UNIVERSITY SYSTEM OF GEORGIA (2002)

A rather esoteric, but quite important, dispute has been raging in the Supreme Court in recent years regarding the true reach of the Eleventh Amendment, and the power of sovereign state immunity it is said to imply. 

I say important because of the individual rights and congressional powers are at stake, especially given that a primary alternative offered (direct suits by the U.S. government) is unwieldy and unlikely to be available in many cases. A look at the words and history of the amendment would suggest things shouldn't be too difficult, but things have not turned out that way. 

Nor has things just started with the current Supreme Court. The battle lines were clearly drawn in 1987, if not over ten years earlier. It was just a matter of time that court personnel change would lead to the current era, misguided (see the excellent dissents) as it might be.

The road to this result turns out to be rather interesting, as suggested by a book cited by the primary dissent in the 1987 cited above, Judicial Power of the United States by John V. Orth. 

I learnt of the book because the author wrote a fascinating little book on Due Process of Law that explained its long English law roots, roots that justify in various extents a substantive (basic rights instead of just "procedural" protections) reach for that protection. 

I got a hold of Orth's (who has continued to write on the subject) book, and though it is in various ways as out of date as the yellowing pages of my copy suggests, it is a fairly straightforward read with valuable historical insights.

A more up to date criticism of recent "Eleventh Amendment" jurisprudence is Narrowing The Nation's Power: The Supreme Court Sides with The States by Judge John T. Noonan, Jr. See also, Original Sin by Samuel A. Marcosson and a whole slew of other books, law articles, court dissents, et. al.

---

Politics: A while back, I noted my belief that Howard Dean had little chance of winning the general election, an opinion I tempered given his later success. Always go with your first judgment, I guess. 

Oh, I guess, I will join with Mike Doonesbury's daughter and withhold judgment, but when he starts suggesting that he might be willing to be a vice presidential candidate (one wonders who would pick him), you know he is in trouble. It also was suggested by several people that there was a good chance for a brokered convention, i.e., no one would get enough delegates to have a majority. 

This too seemed somewhat unlikely to me, and if John "zzzzz" Kerry continues to succeed, things will be almost pro forma before I even vote in March! Key primaries occur in the next two weeks.

I saw John Kerry recently give a stump speech, after Gephardt threw his support Kerry's way. First off, though Gephardt's endorsement is surely a help (for union support alone), it surely doesn't do much to endear me to the guy. After all, the tired nature of Gephardt along with his vote on the Iraq resolution (to add insult to injury, he went over to the White House to voice his support without telling Sen. Daschle, then Majority Leader of the Senate ... such assholic rejection of party loyalty deserves my contempt) is just the sort of thing I dislike about the Democratic Party. 

To the extent Kerry is the "establishment" candidate, this doesn't help me like the guy. Anyway, the guy put me to sleep as he droned on and on. And, I just worry about this guy in the Fall.

I do wish the other candidates would join together somehow, at least Clark and Edwards, who together might work, but apart just split the anti-Kerry vote. If not, John Kerry should be sitting pretty before he makes an appearance at a St. Pat. Day parade. If so, good luck ... and please work on voters like me so we will not see voting for you in November as some necessary chore.