It’s not inconsistent with the court’s inconsistency though.
Scalia was a legal juggernaut on the bench and off it, as unfortunate his politics may be, he had a very large influence on the legal arena surrounding Constitutional law. He argued (correctly) for separated powers and the legislature doing the legislation on big and controversial topics instead of the court(s) - openly pointing out SCotUS’s composition as an unelected, politically appointed technocracy.
What changed and grew was the inconsistency of the conservative members at respecting that separation of powers whilst also not shying from their role as final legal arbiter. Trump v Anderson was correctly decided that states cannot deny candidates federal ballot access without due process, but they completely neglected to affirm or deny the lower courts ruling of what counts as attempted insurrection, kicking that to Congress.
This is political cowardice, not good and proper separated powers keeping each other in check. A legal case is the correct route to determine facts surrounding a candidates eligibility - not a political disqualification process without precedent nor established rules regarding evidentiary eligibility, rights of the accused, composition of the adjudicators, etc. any attempt to disqualify via US Congress will spurn a host of new legal challenges based on procedural questions
This is political cowardice, not good and proper separated powers keeping each other in check.
That is democracy, they have to rule based on the law, and they err on the side of innocence. I think a court that prefers for the elected people to make policy decisions instead of them is better than a court that sets its own policy.
I have to disagree. Under the Marbury v. Madison precedent and the centuries of case law supporting it, the legislature writes the laws while the courts interpret any ambiguity (because lawyers and judges abhor ambiguity) and apply the law as interpreted.
A Federal circuit court had to decide if a newly threatened species of toad does, or does not get the protections given “endangered” as specified in the primary legislation… the highest court in the land is capable of answering what insurrection is, and if it was committed.
That is a pretty clearly different form of ambiguity, the ambiguity here is that the 14th amendment does not state how to enforce the law, and does not delegate that enforcement to the states.
Such power over governance, however, does not extend to federal officeholders and candidates. Because federal officers “ ‘owe their existence and functions to the united voice of the whole, not of a portion, of the people,’ ” powers over their election and qualifications must be specifically “dele- gated to, rather than reserved by, the States.” U. S. Term 7Cite as: 601 U. S. ____ (2024) Per Curiam Limits, Inc. v. Thornton, 514 U. S. 779, 803–804 (1995) (quoting 1 J. Story, Commentaries on the Constitution of the United States §627, p. 435 (3d ed. 1858)). But nothing in the Constitution delegates to the States any power to en- force Section 3 against federal officeholders and candidates. As an initial matter, not even the respondents contend that the Constitution authorizes States to somehow remove sitting federal officeholders who may be violating Section 3. Such a power would flout the principle that “the Constitu- tion guarantees ‘the entire independence of the General Government from any control by the respective States.’ ” Trump v. Vance, 591 U. S. 786, 800 (2020) (quoting Farmers and Mechanics Sav. Bank of Minneapolis v. Minnesota, 232 U. S. 516, 521 (1914)). Indeed, consistent with that princi- ple, States lack even the lesser powers to issue writs of mandamus against federal officials or to grant habeas cor- pus relief to persons in federal custody.
quoting the majority ruling
But they do agree, that Section 3 provides no other method for enforcement, that is the ambiguity. But the ambiguity is easily resolved by section 5 of the 14th amendment:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
section 5 of the 14th Amendment
Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so. The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amend- ment. In doing so, the majority shuts the door on other po- tential means of federal enforcement.
This is the minority then saying that’s not clear enough, because while section 3 prescribes no means of enforcement and then section 5 explicitly says congress has the power to enforce it- they say it is ambiguous because it doesn’t say only congress has the power to enforce it explicitly. I personally prefer to agree with the majority and say since it doesn’t give random people the right to depose the president- then they probably don’t have the right unless new legislation by Congress who does explicitly have the power says they do.
But that’s my point exactly about the law as written leaving open ambiguity. The courts have generally either affirmed the law as written/upheld in case law, struck down parts or entire portions of the law, or bounced lesser issues back to the lower courts.
There already is a political process for individual, case by case disqualification - impeachment. Congress has already adopted a law regarding disqualification for insurrection, and the courts did not strike down that law in part or whole, despite gutting the enforcement mechanism.
It’s also not a small group of people deciding to capriciously allow or disqualify people the chance at office. Congress determined that insurrection is a disqualifying offense, as is being too young, or not a citizen. We don’t kick disqualifications for those categories back to Congress for a ‘trial’ but this is being treated differently, because the court is shirking from its traditionally assumed role
Congress wrote laws specifying the process specifically of getting on the ballot, those laws preclude age and require citizenship, but I don’t think specify the process for removing an insurrectionist. And I think that because if they did someone would have opened a federal suit of the election commission by now.
There is no side of innocence in determining eligibility for office. The requirements laid out in the main body of the Constitution already make it clear that holding the office of President is not an inalienable right.
It’s not inconsistent with the court’s inconsistency though.
Scalia was a legal juggernaut on the bench and off it, as unfortunate his politics may be, he had a very large influence on the legal arena surrounding Constitutional law. He argued (correctly) for separated powers and the legislature doing the legislation on big and controversial topics instead of the court(s) - openly pointing out SCotUS’s composition as an unelected, politically appointed technocracy.
What changed and grew was the inconsistency of the conservative members at respecting that separation of powers whilst also not shying from their role as final legal arbiter. Trump v Anderson was correctly decided that states cannot deny candidates federal ballot access without due process, but they completely neglected to affirm or deny the lower courts ruling of what counts as attempted insurrection, kicking that to Congress.
This is political cowardice, not good and proper separated powers keeping each other in check. A legal case is the correct route to determine facts surrounding a candidates eligibility - not a political disqualification process without precedent nor established rules regarding evidentiary eligibility, rights of the accused, composition of the adjudicators, etc. any attempt to disqualify via US Congress will spurn a host of new legal challenges based on procedural questions
deleted by creator
That is democracy, they have to rule based on the law, and they err on the side of innocence. I think a court that prefers for the elected people to make policy decisions instead of them is better than a court that sets its own policy.
I have to disagree. Under the Marbury v. Madison precedent and the centuries of case law supporting it, the legislature writes the laws while the courts interpret any ambiguity (because lawyers and judges abhor ambiguity) and apply the law as interpreted.
A Federal circuit court had to decide if a newly threatened species of toad does, or does not get the protections given “endangered” as specified in the primary legislation… the highest court in the land is capable of answering what insurrection is, and if it was committed.
That is a pretty clearly different form of ambiguity, the ambiguity here is that the 14th amendment does not state how to enforce the law, and does not delegate that enforcement to the states.
But they do agree, that Section 3 provides no other method for enforcement, that is the ambiguity. But the ambiguity is easily resolved by section 5 of the 14th amendment:
This is the minority then saying that’s not clear enough, because while section 3 prescribes no means of enforcement and then section 5 explicitly says congress has the power to enforce it- they say it is ambiguous because it doesn’t say only congress has the power to enforce it explicitly. I personally prefer to agree with the majority and say since it doesn’t give random people the right to depose the president- then they probably don’t have the right unless new legislation by Congress who does explicitly have the power says they do.
But that’s my point exactly about the law as written leaving open ambiguity. The courts have generally either affirmed the law as written/upheld in case law, struck down parts or entire portions of the law, or bounced lesser issues back to the lower courts.
There already is a political process for individual, case by case disqualification - impeachment. Congress has already adopted a law regarding disqualification for insurrection, and the courts did not strike down that law in part or whole, despite gutting the enforcement mechanism.
It’s also not a small group of people deciding to capriciously allow or disqualify people the chance at office. Congress determined that insurrection is a disqualifying offense, as is being too young, or not a citizen. We don’t kick disqualifications for those categories back to Congress for a ‘trial’ but this is being treated differently, because the court is shirking from its traditionally assumed role
Congress wrote laws specifying the process specifically of getting on the ballot, those laws preclude age and require citizenship, but I don’t think specify the process for removing an insurrectionist. And I think that because if they did someone would have opened a federal suit of the election commission by now.
There is no side of innocence in determining eligibility for office. The requirements laid out in the main body of the Constitution already make it clear that holding the office of President is not an inalienable right.
The Constitution does however err on limiting impedances to popular democracy, especially post-Civil War