Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
Why the Colorado Decision Will Fall
In light of the decision of the Colorado State Supreme Court to remove Donald Trump from that state’s ballot in 2024, I asked our resident Professor of Law, John Yoo, which way he believed SCOTUS would rule: “I agree in toto with the expert testimony filed in the trial court by my good friend, Robert Delahunty.”
Delahunty, who served served for thirteen years in the Office of Legal Counsel in the Department
of Justice, laid out three main points in opposition to the petitioner’s filing.
- A former President is not among any of those whom Section 3 identifies as subject to its sanctions. Petitioners rely on a flawed understanding of the constitutional term “officer of the United States.” That term appears three times in the original Constitution. In all three occurrences, the President is distinguished from an “officer of the United States.” No court has ever construed the term “officer of the United States” to include the President. Together with other textual and historical materials, the evidence is compelling that Section 3’s jurisdictional element does not include the President.
- Section 3 is not self-executing. More precisely, it cannot be enforced in court without implementing congressional legislation under Section 5 of the Fourteenth Amendment. … (O)ne should look to Congress to enact enforcement legislation under Section 5 of the 14th Amendment. But no relevant congressional legislation enabling the States or private persons to enforce Section 3 exists here.
- The difficulties of interpreting Section 3’s offense element, and especially of defining what is meant by having “engaged” in “insurrection,” support the conclusion that the Section is judicially non-self-executing. Guidance from federal justiciability doctrines and separation of powers theory counsels against a wide-reaching application of Section 3 by the judiciary unless it is so authorized by Congress.
The three dissents make these points quite convincingly.
Well done, E.J. Thanks for clearing this up!
It has been noted that the four partisan hacks on the Colorado court are three Ivy Leaguers and a UVa grad. The dissents all went to U Denver Law School (all appointed by Dem governors). There must be a recent triggering of some deep subliminal programming causing graduates of elite schools to go nuts about now. Trump is Hitler but Hamas is sweetness and light. There has to be some Bond villain planting mental controls.
It’s an interesting premise. Trump is so evil, even though he didn’t do anything for four years, that we must become what we claim he is by rigging elections, persecuting him with bogus lawfare claims, and removing him from the ballot through any means available. Some real “we had to burn the village to save the village” feelings. Obama’s goal to fundamentally transform us to a banana republic might be complete.
Fascinating. I had never heard of this concept in the law. Do you recon that those 4 Colorado justices who voted to bar Trump from the ballot just didn’t know about this, or what?
All of this was filed with the court by Delahunty on behalf of the former President. So, if they read all the briefs, they had to know.
I’m looking forward to the Sotomayor-KBJ dissent in the 7-2 overturning of the Colorado decision.
I thought a person had to be charged and tried by a prosecutor before said person could be judged to be guilty. Trump has never been convicted of insurrection. As such, what case was the Colorado court upholding? What is a crime (as a matter of speaking) is the contempt for our system of jurisprudence that these leftist Colorado judges have shown with this action.
Thanks to John Yoo.
You wouldn’t accuse these fine judges of not doing their job, would you?
Exactly. There must be a judicial process and determination before someone (or some court) can declare a person (even Trump) guilty.
Not necessarily. In his brief, Delahunty keeps referring to Section 5 of the 14th:
His argument is that Congress has not provided the legislation needed to enforce Section 3. There’s no provision in law to define anything that happened on January 6, 2021 as “insurrection.”
Tell that to the hundreds of citizens who have spent the last two years in a dungeon.
If it stands, then Florida should ban Biden for his being in bed with China.
Republicans should eliminate Democrats for any reason they can fine. Just flood the courts and pass laws.
Burn. It. Down.
There was a judicial process, the original trial of Anderson v. Griswold:
Presumably they did read the briefs, as they addressed each point in their decision:
I haven’t read all 213 pages — and doubt I ever will — though I am rather curious to see their reasoning for some of these claims.
They really want a civil war.
And I’m not even going to vote for Trump this time.
The majority opined that Colorado’s voting statutes and procedure for ballot eligibility challenges sufficed to perform that enabling function (even though the CO statute requires a hearing in five days and a decision within 48 hours, because they are usually dealing with questions of age, residence, and the like… objective facts).
Moreover, the dissents pointed out that Congress had once enacted laws to enforce Section 3, but Congress later repealed it and never replaced it.
The Democrats have demonstrated many times in the past that the only way they reconsider the unreasonable “rules” they make up is to have those “rules” applied against them (special counsels, “canceling,” etc.).
There are so many areas in which Joe Biden has rebelled against the United States and/or given aid or comfort to the enemies of the United States, such as refusing to enforce the laws he swore to uphold to protect the United States, allowing foreign invaders to enter the U.S. freely so that those invaders can disrupt the peaceful existence of the United States, and taking bribes from foreign entities. Florida and Georgia (with other states) have already commenced legal proceedings against Biden on such grounds. It should be easy for Florida and Texas to declare Biden ineligible for the ballot in those states.
See. Congress can repeal something and doesn’t need to replace it.
I stand corrected. Thanks for the reference.
Guess what state was the last one to chose electors through its state legislature, rather than by popular vote?
Colorado
This was during the very controversial election of 1876:
“Colorado was admitted to the Union as the 38th state on August 1, 1876… There was insufficient time or money to organize a presidential election in the new state. Therefore, Colorado’s state legislature selected the state’s three Electoral College electors. The Republican Party held a slim majority in the state legislature following a closely contested election on October 3, 1876. Many of the seats in that election had been decided by only a few hundred votes… This was the last election in which any state chose electors through its state legislature, rather than by popular vote.”
The House shouldn’t wait for the Supreme Court. They should initiate a vote to remove any disability that Trump may be deemed to have from January 6. It takes 2/3 of the House and Senate. They need to force every representative and senator to state where they stand.
I like the sentiment, but:
If only there were a R leader in the Senate with all kinds of arcane knowledge of the Senate rules and such . . . oh, wait. That’s McConnell. No friend of Trump, he.
And the new R Speaker of the House with a single vote majority after 12/31 is still trying to find his way . . .
So, if the effort is made and fails, the MSM and Dems will crow it proves the disability exists, in all 50 states. Not the shrewdest move, IMO.
I think it’s pretty obvious that it won’t get 2/3. But it will make a lot of Dems vote in a way that will hurt them. And no, holding a vote on the matter doesn’t prove anything about whether a disability actually exists. They could word the resolution to make that clear.
It would be both symbolic and impotent. It would be lucky to get a straight party vote.
I’m imagining that several justices of the United States Supreme Court are really ticked off at the Colorado state Supreme Court. The US Supreme Court can’t ignore or delay getting involved. And getting involved involves a lot of work in a ridiculouslyshorttime. I’m assuming most if not all of the U.S. justices figured no state court would be stupid enough to fall for the clearly phony unsupported and idiotic arguments promoted by the morons claiming Trump should be disqualified from the ballots. Yet, here we are, with four justices of the Colorado Supreme Court falling for just such idiocy.
Insurrection is a crime – isn’t the standard “beyond reasonable doubt”?
It’s too bad that Colorado has been colonized by Californians. Once Colorado was conquered, the California colonizers moved their colonizing operations to Arizona and Nevada which are now both nearly fully colonized. Thankfully, a majority (slim though it may be) of those moving from California to Texas have been refugees rather than colonizers.
Trump wasn’t on trial, so perhaps a lower standard of evidence applies?
Wasn’t O.J. held liable for the wrongful deaths of Nicole and Ron in a civil trial after he was acquitted of murdering them? Same crime, different standards.