152 search results for ""14th amendment""

For now…

The Colorado Supreme Court threw Trump off the ballot because they say he’s disqualified under the `4th Amendment for stoking an insurrection on January 6th:

The 4-3 ruling, which rests on an interpretation of the 14th Amendment, will almost certainly force the issue to the U.S. Supreme Court to resolve whether Trump, the leading candidate for the Republican nomination, is eligible to hold future public office.

“We do not reach these conclusions lightly,” the Colorado majority opinion reads. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

The court, which consists entirely of Democratic appointees, is the first in the nation to side with activists and voters who have filed numerous lawsuits claiming that Trump is barred from office under the 14th Amendment’s “insurrection clause.” That clause states that anyone who “engaged in insurrection or rebellion” after taking an oath of office to support the Constitution is forbidden from holding any public office.

The divided decision, issued just two weeks after the court heard oral arguments in the case, reverses a Denver judge’s ruling that found that while Trump had engaged in insurrection, the Constitution’s ambiguity on the matter left Trump eligible to remain on the ballot. The four-justice majority of the Colorado high court agreed with the lower-court judge that Trump engaged in insurrection — and found that he is disqualified from the ballot as a result.

Moments after the ruling, Trump vowed to appeal the decision to the Supreme Court.

The Court issued a stay allowing Trump to appeal before January 4th, the day before the ballots are scheduled to be printed. There is every reason to believe they will do it.

I would imagine that the court is going to go Trump’s way on this. They do not want to open Pandora’s box on this, creating ballot chaos in a number of states. But you never know.

Biden may have no choice

There’s a lot of talk these days about Biden citing the 14th amendment to unilaterally lift the debt ceiling if it comes down to that. (Actually it’s just him directing the treasury dept. to pay the bills the government has incurred.) I thought you might be interested in this analysis of the subject by legal expert Garret Epps:

John Perry, a wealthy patriot, boosted the American war effort in 1918 by subscribing to the Fourth Liberty Loan. For $10,000, he bought a bond payable in 1934 “in United States gold coin of the present standard of value.” By Perry’s calculation of the price of gold, that meant that in 1934 he was entitled to a payback in the value of $16,931.25.  

Unfortunately for Perry, U.S. dollars were no longer backed by gold in 1934, and there were no legal gold coins. Among the effects of the Great Depression was radical deflation—as money got scarcer, those who still had dollars could buy more goods and services than before the crash. So, on June 5, 1933, Congress passed a Joint Resolution declaring such “gold clauses” invalid. Congress resolved that from 1933 on, “gold clause” or not, U.S. bonds were repayable only by legal tender. Perry thus would get $10,000 in paper money.  

Perry did what any self-respecting wealthy patriot would do when his country is in extremis—he sued the government. When his case reached the Court, an opinion by Chief Justice Charles Evans Hughes stated that, sure enough, the government was obliged to pay the bond: 

The Fourteenth Amendment, in its fourth section, explicitly declares: ‘The validity of the public debt of the United States, authorized by law, * * * shall not be questioned.’ . . . We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the amendment was adopted. Nor can we perceive any reason for not considering the expression ‘the validity of the public debt’ as embracing whatever concerns the integrity of the public obligations. 

Great news for Perry—except that the Court then went on to hold that the debt owed Perry was, in fact, payable in 1934 paper dollars, not the value it would have in gold coins. Legal tender is legal tender, and gold wasn’t it anymore. 

We can draw two lessons from this now-obscure case. From the opinion, we glean that, even seven decades after the enactment of the Fourteenth Amendment, its requirement that the public debt “not be questioned” bound the government in all its obligations.  

From the larger circumstances of the case, however, we can glean another. As constitutional historian Gerard Magliocca laid out in a fascinating 2012 article, a contrary decision by the Court—requiring repayment in the value of gold—might have been a near-death experience for the Court and the Constitution. That’s because President Franklin Roosevelt, convinced that returning to the gold standard would plunge the economy even further into depression, had already determined that he would not follow a Supreme Court decision reaffirming the gold clause.  

Roosevelt and his staff had prepared a “fireside chat” script that would have said, “To stand idly by and to permit the decision of the Supreme Court to be carried through to its logical, inescapable conclusion would so imperil the economic and political security of this nation that the legislative and executive officers of the Government must look beyond the narrow letter of contractual obligations, so that they may sustain the substance of the promise originally made in accord with the actual intention of the parties.” In effect, he said that however the courts read the Constitution, a conscientious president would not carry through any decision that would wreck the nation.  

As the clock ticks off the remaining minutes before the United States suffers a politically engineered default on its debt, I desperately hope that the Biden administration has learned both lessons of Perry. First, default on the debt (which would occur if Congress does not raise the “debt ceiling” provided by statute) is flatly forbidden by the Constitution. Second, a President must sometimes contemplate defying the other branches to save the country from disaster.  

I have been writing about the debt ceiling for the past 12 years, and my position, once dismissed as a fringe theory, has now gone mainstream. (Just this week, the redoubtable Laurence Tribe of Harvard, who scorned the argument in 2011, has clambered aboard the anti-repudiation bandwagon. I am now awaiting an apology from former Representative Barney Frank, who in 2011 accused me of believing Elvis is still alive.) For those who just tuned in, I’ll explain quickly: the interest due on U.S. bonds does not come from new spending but from money already appropriated by Congress and spent by the executive branch. Failure to raise the “debt ceiling” will not reduce the national debt by one penny; it will force a default on existing debt, the first ever. That will, in turn, decimate the credit of the U.S. government, tank the domestic economy, boost interest rates worldwide as investors demand guarantees against future defaults, and, because the dollar is the world’s reserve currency, spark a worldwide financial crisis like that of 2008 and even perhaps a downturn like that of the 1930s. It will also violate Section Four of the Fourteenth Amendment, which (as the Perry Court noted) provides that “The validity of the public debt of the United States, authorized by law, . . . shall not be questioned.” 

If, that is, the president obeys the debt ceiling. I hope that he is following Roosevelt’s example—that the executive order setting it aside has already been written for signature if needed, along with a speech explaining it to the nation. Congressional fecklessness—caused by an extreme Republican caucus with the slimmest majority in only one house—cannot supersede the Constitution. The case for presidential authority in the face of actual default is much stronger than Roosevelt’s would have been. Biden has a constitutional text he can cite.  

In the current case, there’s some reason to hope that the Supreme Court would choose to stay out of any dispute over the lawfulness of repaying the debt. To begin with, who would have what the courts call “standing to sue”? Standing is supposed to arise from an “injury in fact,” meaning some harm the challenged action is having that is particular to this particular plaintiff or plaintiffs. “I don’t agree with this,” “I think it’s unconstitutional,” or even “Let’s go, Brandon!” are not supposed to be enough to generate standing.  

But as with so much else, all bets are off in the aggressive post-Trump Supreme Court. The majority has shown that “standing” can be manufactured when they don’t like something the government is doing. In West Virginia v. Environmental Protection Agency, the climate policy case, red states were allowed to challenge a 2015 climate policy that had never gone into effect and could not ever go into effect because of changes in the energy industry. (The majority reasoned that those sneaky bureaucrats at the EPA might at some point start to think about doing something in some way similar, so the case was on.) In a current case pending this term, 303 Creative v. Elenis, the Court has permitted a Christian web designer to challenge a state civil rights law on the grounds that, at some point, she might decide to offer wedding website design services. If she did decide to offer them, a same-sex couple might ask her to do one, and if they did ask her, and if she refused because designing pages for same-sex couples would violate her faith, and if the law were then applied to her, this would provide an injury. So, it is quite possible the conservative supermajority could decide that Brandon needed a good slap across the face and thus manufacture standing for some red state attorney general or right-wing advocacy group to challenge Biden’s upholding the full faith and credit of the United States.  

That brings us to the next somber contingency: The rise of Republican extremists is forcing the nation into a crisis not paralleled at least since 1937. If the Court becomes a party to this high crime, Biden should be prepared to defy its order to default.  

Those are foreboding words to type. For someone like me who has spent a career studying the workings of the Constitution, contemplating a step outside it is a bit like trying to imagine one’s own death. Would one, in good conscience, advise a president in this situation to refuse to obey the Court?  

I discussed the question in general terms with Louis Michael Seidman, the Carmack Waterhouse Professor of Law at Georgetown Law Center. In 2013, Seidman published a small book, On Constitutional Disobedience, which steps outside the ordinary framework and assesses the argument for and against regarding the Constitution as binding on present-day actors. Seidman didn’t offer any opinion on my Section 4 theory. But for a president who agrees with me, paying the debt would not be disobeying the Constitution—it would be obeying it and insisting that doing so supersedes the intervention of any other branch. “If you believe in obeying the Constitution,” he said, “obeying the Supreme Court might be constitutional disobedience.”  

The debt ceiling should be eliminated. The bills will be paid, period. If the Republicans want to blow up the world economy I’m sure they can find a way to do it but there’s not reason to make it easy for them.

This little ditty popped onto the Asheville Politics FB group on Monday (Associated Press):

RALEIGH, N.C. (AP) — A group of North Carolina voters urged state officials Monday to disqualify U.S. Rep. Madison Cawthorn as a congressional candidate, citing his participation in a rally last January in Washington that questioned the presidential election outcome and preceded the Capitol riot.

Cawthorn’s office quickly condemned the candidacy challenge, filed on behalf of 11 voters before the State Board of Elections, which oversees the scrutiny of candidates’ qualifications. The voters contend that Cawthorn, a Republican who formally filed as a candidate for the 13th District seat last month, can’t run because he fails to comply with an amendment in the U.S. Constitution ratified shortly after the Civil War.

In addition to confirming that everyone born in this country is a citizen entitled to all the rights pertaining thereto, Section 3 of the 14th Amendment passed during Reconstruction states:

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.

Those of us in the newly renamed and redrawn 14th Congressional District (including more than a few Republicans) don’t want Cawthorn back. It would be sweet irony if he is disqualified from running elsewhere by the 14th Amendment. That is just what Cawthorn’s challengers contend:

The written challenge says events on Jan. 6, 2021 “amounted to an insurrection” and that Cawthorn’s speech at the rally supporting then-President Donald Trump, his other comments and information in published reports provide a “reasonable suspicion or belief” that he helped facilitate the insurrection.

Their filing is here. In it, challengers state:

7. In 1869, the North Carolina Supreme Court issued the leading national precedent on the meaning of “engage” under Section Three. The Court held that a candidate “engages” in a rebellion or insurrection for the purposes of the Disqualification Clause by “[v]oluntarily aiding the rebellion, by personal service, or by contributions, other than charitable, of any thing that was useful or necessary.” Worthy v. Barrett, 63 N.C. 199, 203 (1869).

8. Planning or helping plan an insurrection or rebellion satisfies that definition. So does planning a demonstration or march upon a government building that the planner knows is substantially likely to (and does) result in insurrection or rebellion, as it constitutes taking voluntary steps to contribute, “by personal service,” a “thing that was useful or necessary” to the insurrection or rebellion. And knowing that insurrection or rebellion was likely makes that aid voluntary.

There is nothing I’ve seen to suggest Cawthorn planned or helped plan the rally. He was probably beside himself just to be asked to speak. Egging on the crowd to march on the Capitol is another matter. But it is not clear he did that.

AP continues:

The state board scheduled a meeting Wednesday to create a five-member panel or panels from counties within the proposed 13th District required to hear the challenge. The ruling by such a panel can be appealed to the state board and later to an appeals court. Three of the five state board members are Democrats.

Rep. Mo Brooks of Alabama (R-Kevlar) is another matter. He is already being sued over helping inciting the riot. “Today is the day American patriots start taking down names and kicking ass!” Brooks told the crowd on Jan. 6. “Now, our ancestors sacrificed their blood, their sweat, their tears, their fortunes and sometimes their lives … Are you willing to do the same? My answer is yes. Louder! Are you willing to do what it takes to fight for America?”

And fight they did. Many, anyway. Not only at Brooks’ urging, but at Trump’s. Perhaps he’ll feel a cold, 14th breeze down his neck.

Gonna drop Charlie Pierce right here:

As the months go on, we may find reasons to drop Section 3 on the heads of a number of Cawthorn’s colleagues, so this action in North Carolina is more than welcome. After all, as Garrett Epps writes in his admirably lucid history of the 14th Amendment and its ratification, Democracy Reborn, nobody in that Congress had any doubt about what Section 3 was aimed at. The majority report from the joint congressional committee on the amendment stated quite clearly that, as Epps puts it:

Southerners had taken advantage of the president’s [Andrew Johnson] leniency to elect “notorious and unpardoned rebels” as prospective members of Congress, and the committee’s interviews with Southeners and federal officials produced “no evidence whatever” among white Southerners “of repentance for their crime” or any real regret “except that they had no longer the power to continue the desperate struggle.”

The entire brief public career of Rep. Madison Cawthorn makes the authors of that report look like Nostradamus. However, there has been a powerful undertow against the Reconstruction Amendments ever since their passage, and it’s become increasingly powerful as the prion disease spread within the conservative collective mind. Which is why I hope this action in North Carolina proceeds steadily upwards.

Speaking for Free Speech for People, the group supporting the Cawthorn challenge, legal director Ron Fein told AP its North Carolina filing will be the first of many qualification challenges it plans to file in states against members of Congress and Trump.

Does the 14th Amendment bite? Or is it simply empty rhetoric?

14th Amendment personhood

by digby

In today’s Focus on the Theocrats presidential debate (led by an over-the-top lugubrious Frank Luntz) some fellow asked if, in the event that Roe vs Wade was overturned, would they propose a federal ban on abortion? Newt said that he agreed with Robert George’s proposal to apply the 14th Amendment to fetuses.(And would also insist that the courts have no jurisdiction to boot.)

Here’s George’s question on the subject at a recent GOP presidential forum:

Many believe that we need a constitutional amendment to overturn Roe v. Wade. However, Section Five of the Fourteenth Amendment expressly empowers the Congress, by appropriate legislation, to enforce the guarantees of due process and equal protection contained in the Amendment’s first section. As someone who believes in the inherent and equal dignity of all members of the human family, including the child in the womb, would you propose to Congress appropriate legislation, pursuant to the Fourteenth Amendment, to protect human life in all stages and conditions?

Newt, Bachman and Cain all said yes. Perry wasn’t in yet. Ron Paul said no at that time. Today he said that he was for it but that the states should enforce it, whatever that means. Romeny hedged, but basically said no. (He wasn’t at this debate today.)

Here’s the thing I find odd about all this. This has been a part of the GOP platform for a long time:

GOP platform

Maintaining The Sanctity and Dignity of Human Life

Faithful to the first guarantee of the Declaration of Independence, we assert the inherent dignity and sanctity of all human life and affirm that the unborn child has a fundamental individual right to life which cannot be infringed. We support a human life amendment to the Constitution, and we endorse legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children.

Granted, George is saying they can skip that whole inconvenient amendment thing. But the essential question is the same.

Here’s the pertinent passage of the 14th amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It’s “personhood” along the lines of that failed Mississippi initiative.Fetuses are to be given equal protection.

I wonder whose property the uterus really is?

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Writing it Right This Time

by digby

So Arizona is going to introduce a bill to pressure Israel to deport the children and grandchildren of European Jews to Poland and Germany. You’d think there would be some kind of outcry, wouldn’t you?

Oh, wait. They just want to revoke the citizenship of the children of Mexicans so they can be deported to Mexico (and other ocuntries “down there.”) Not a problem. My bad:

Buoyed by recent public opinion polls suggesting they’re on the right track with illegal immigration, Arizona Republicans will likely introduce legislation this fall that would deny birth certificates to children born in Arizona – and thus American citizens according to the U.S. Constitution – to parents who are not legal U.S. citizens. The law largely is the brainchild of state Sen. Russell Pearce, a Republican whose suburban district, Mesa, is considered the conservative bastion of the Phoenix political scene. He is a leading architect of the Arizona law that sparked outrage throughout the country: Senate Bill 1070, which allows law enforcement officers to ask about someone’s immigration status during a traffic stop, detainment or arrest if reasonable suspicion exists – things like poor English skills, acting nervous or avoiding eye contact during a traffic stop. (See the battle for Arizona: will a border crackdown work?)

But the likely new bill is for the kids. While SB 1070 essentially requires of-age migrants to have the proper citizenship paperwork, the potential “anchor baby” bill blocks the next generation from ever being able to obtain it. The idea is to make the citizenship process so difficult that illegal immigrants pull up the “anchor” and leave. (See pictures of the Great Wall of America.)

The question is whether that would violate the U.S. Constitution. The 14th Amendment states that “all persons, born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” It was intended to provide citizenship for freed slaves and served as a final answer to the Dred Scott case, cementing the federal government’s control over citizenship.

But that was 1868. Today, Pearce says the 14th Amendment has been “hijacked” by illegal immigrants. “They use it as a wedge,” Pearce says. “This is an orchestrated effort by them to come here and have children to gain access to the great welfare state we’ve created.” Pearce says he is aware of the constitutional issues involved with the bill and vows to introduce it nevertheless. “We will write it right.” He and other Republicans in the red state Arizona point to popular sympathy: 58% of Americans polled by Rasmussen think illegal immigrants whose children are born here should not receive citizenship; support for that stance is 76% among Republicans.

This is just righting a long ago wrong. After all, if you’d have polled the country before they passed the 14th amendment, I have no doubt that 76% of racist confederates were against it, along with a bunch of other ignorant fools who have no idea what they are saying, just as they are today.

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Look Who’s Talking

by digby

Helen Thomas expressed a truly ugly point of view and there’s no defending it except to chalk it up to the lack of filter most 90 year olds seem to develop. But please, please spare me the outrage from people who have been telling me my whole life to “love it or leave it” and are in the process of trying to revoke the citizenship of people who were born in this country to “send them back” to where their parents come from. And please don’t try to tell me that there hasn’t been many a discussion among the wingnuts that ended with the statement that we “should round up all the ragheads and send them back to the desert” and the like. Just because they want to pretend to like Jews for the moment (the enemy of my enemy etc) doesn’t mean they don’t have exactly the same impulse as Thomas when it comes to the idea of “repatriation” of all sorts of people they don’t like.

But hey, they got an 89 year old woman’s scalp, so I’m sure they feel very morally superior. Wake me when they introduce the bill to revoke the 14th amendment.

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You asked for it, America

President-elect Donald Trump signaled in a Truth Social post on Monday that he means to declare a national emergency as a component of his plans for mass deportations (CNN):

CNN reported over the weekend that Trump’s team is evaluating a national emergency declaration to unlock Pentagon resources and tailoring that declaration to pave the way for expanding detention space.

In his first term, Trump declared a national emergency on the border with Mexico to circumvent Congress and use Pentagon funds for his border wall—a move that was faced with numerous lawsuits.

The incoming administration’s sweeping immigration plans are beginning to come into focus, sources previously told CNN, including implementing strict border measures, striking down Biden-era policies and kicking off the detention and deportation of migrants at large scale.

People close to the president-elect and his aides are laying the groundwork for expanding detention facilities to fulfill his mass deportation campaign promise, including reviewing metropolitan areas where capabilities exist.

But they are also preparing executive actions that are a call back to his first term in office and could be rolled out as soon as Trump takes office, the sources said.

I remember when the right-wing panic of the day was mythical Obama FEMA camps. Digby reminded readers last February that the huge conspiracy theory died off as soon as Trump took office (like the stolen-election conspiracy this year). Also, detaining vast numbers of “undocumented Central American residents and 4000 American citizens whom the US Attorney General had designated as ‘national security threats’” was originally a Reagan-administration idea:

It’s a Republican thing.

Trump’s top henchman Steven Miller has been floating the idea of “deportation camps” and one of Trump’s big plans is to do sweeps in American cities and put the homeless into camps as well.

Camps are on the GOP agenda.

The camps idea gets Discount Goebbels hot and bothered. But that’s not all, reports The New York Times:

[Trump’s] team plans to stop issuing citizenship-affirming documents, like passports and Social Security cards, to infants born on domestic soil to undocumented migrant parents in a bid to end birthright citizenship.

David Badash, founder and editor of The New Civil Rights Movement, writes:

Constitutional law professor and political scientist Anthony Michael Kreis last week said, “Birthright citizenship is a foundational concept in American constitutional law. It is a betrayal of the 14th Amendment to suggest otherwise or that it can be discarded with ease. We settled any doubt about this in Wong Kim Ark in 1898. We should not budge one solitary inch.”

But Trump himself has declared, “going forward, the future children of illegal aliens will not receive automatic U.S. citizenship.”

That would, as Professor Kreis notes, directly contradicts the 14th Amendment to the U.S. Constitution, which also bans Americans who “have engaged in insurrection” from holding office.

If Trump is allowed to revoke the citizenship of some people born in the United States, what’s to stop him from expanding dispossession to anyone he deems insufficiently servile, including Black Americans for whom the post-Civil War amendment was principally written? What other amendments or clauses might Trump dismiss with a wave of his stubby fingers?

Defiance of the 14th Amendment regarding U.S.-born citizens sets up a showdown (or not) between the U.S. Supreme Court and Dear Leader. We’ve already established that if a Republican Senate confirms Matt Gaetz, Pete Hegseth, Tulsi Gabbard, and RFK Jr. to Cabinet positions, an utterly cowed GOP caucus will do anything their liege lord asks. (Trump made new health czar RFK Jr. eat McDonald’s, observes late-night host Jimmy Kimmel. “That’s what he does, these are subservience tests.”) Trump’s open defiance of the Constitution would leave the Court with an unsolvable problem once His Lordship’s actions are challenged in court.

JV Last writes:

They have immunized a man whose administration is openly toying with the idea of defying their authority.

Let’s think through this dynamic together.

If Trump were to pursue a case all the way to the Supreme Court, and the Court were to rule against him, and Trump were to decide not to abide by that ruling . . .

What happens next?

Sorry, wait: What happens next if the attorney general, the head of the FBI, the secretary of defense, and the Joint Chiefs and their general staffs are all personally loyal to Trump and Trump has both (a) blanket criminal liability for himself and (b) the power to pardon anyone who commits a crime he orders?

There’s your worst-case scenario.

So here’s the logic chain:

1. SCOTUS must understand that it has put itself in this box.
2. It also must understand that if it ruled against Trump on a matter of sufficient importance, then Trump might be inclined to defy its ruling.
3. And if the president exhibited such defiance, then the high court’s position in American politics would be utterly, irrevocably exposed.
4. Ergo, the chief justice would not—under any circumstances—allow the Court to rule against Trump if he believed that Trump might attempt to defy the ruling.

And that, my friends, is the sum of all fears. A system of government so fully perverted that it is not possible to chart a path back to liberalism and the rule of law.

Is this scenario likely? No.

Is it possible? Let’s call it 1-in-100 odds.

Then again, what were the odds you’d see a losing presidential candidate attempt to overthrow the election? What were the odds you’d witness a violent mob storm and sack the U.S. Capitol after battling police for hours while said loser watched on TV and did nothing? For that matter, what were the odds that a sitting president would threaten this little blog?

“If we assumed—just for the sake of argument—that Trump was trying to bring about this worst-case scenario . . . what would he be doing differently?” asks Last. “Nothing.”

Which is to say: Trump’s actions to date are entirely consistent with a man looking to remake our system of government. If he was intent on the worst-case scenario, there is nothing he’d be doing differently.

Should Trump attempt to revoke birthright citizenship, he will set up the nine SCOTUS justices to somehow accede his demand or else become legal eunuchs.

I’ve watched too many unimaginable scenarios play out in my life not to worry.

Extreme right meets extreme past

Did Republicans build a time machine out of a DeLorean? It seems they’re pining for the time of slavery (Alternet):

A prominent Republican group is citing one of the most reviled Supreme Court (SCOTUS) decisions in American history to justify its case that Vice President Kamala Harris should be deemed ineligible to run under the U.S. Constitution.

In an official resolution, the National Federation of Republican Assemblies (NFRA) – a 90 year-old GOP-aligned organization that counted former President Ronald Reagan among its membership — took the position that Harris should not be allowed to hold the office of president, citing several “precedent-setting U.S. Supreme Court cases.” Among the six cases the NFRA cited was the Dred Scott v. Sandford decision of 1857, which is regarded as one of the worst SCOTUS decisions of all time, if not the worst ever.

“Several states, candidates, and major political parties have ignored this fundamental Presidential qualification, including candidates Nikki Haley, Vivek Ramaswamy and Kamala Harris whose parents were not American citizens at the time of their birth,” the NFRA’s resolution read.

The resolution — which attorney Andrew Fleischman posted to the social media platform Bluesky — cited Article II, Section 1, Paragraph 5 of the Constitution, which pertains to only natural-born U.S. citizens being eligible to serve as president. The NFRA argued that the phrase “natural born citizen” is defined as “a person born on American soil of parents who are both citizens of the United States at the time of the child’s birth.”

However, as numerous Bluesky users observed, applying the NFRA’s interpretation of that clause would have made multiple U.S. presidents ineligible to hold office, including George Washington, John Adams, Thomas Jefferson and James Madison, among others. Dallas-based attorney Santiago Reich pointed out that because those presidents’ parents were born on land classified as British colonies at the time, they would not meet the standard the NFRA set to define natural-born citizenship.

One of the other SCOTUS decisions the NFRA cited in its resolution was the 1939 Perkins v. Elg case, which states: “A child born here of alien parentage becomes a citizen of the United States.” Reich called the NFRA “pretty f—ing bold” to cite a decision that undermines their core argument.

Other Bluesky users responding to Fleischman’s post further argued that the mere existence of the 13th Amendment (the abolition of slavery), the 14th Amendment (equal protection for formerly enslaved Americans) and the 19th Amendment (universal women’s suffrage) make the cases the NFRA cited in its resolution invalid.

“All of these cases except Perkins v. Elg have been abrogated or are completely unrelated,” one user wrote. “Dredd[sic] Scott was overturned entirely by the 14th and its text cannot be meaningfully cited for any reason whatsof—ingever.”

The Dred Scott case concerned a slave from Missouri who then lived in the free states of Illinois — which sided with the Union in the Civil War — and Wisconsin (which was initially a part of the Louisiana Territory that did not have slavery due to the 1820 Missouri Compromise). When Dred Scott sued for his freedom, the Supreme Court denied his petition stating that he lacked the standing to sue in federal court.

In the decision, Chief Justice Roger Taney asserted that Article III of the U.S. Constitution made it impossible for the descendants of slaves to have the rights of citizenship. The Supreme Court’s own website has since referred to Dred Scott v. Sandford as “a legal and practical mistake.”

Donald J. Trump is a legal and practical mistake too. Not that it matters when defending white Christian nationalists from having to share this country with people not like themselves.

A quick perusal of the NFRA document reveals it advocates the constitutional sheriff movement-adjacent “Doctrine of the Lesser Magistrates,” “Holy Scripture,” and “natural and revealed laws of God” as the basis for governance. Oh, and the upholding of “natural societal order of submission to legitimate authority, parents and children, employers and employees, coaches and athletes, teachers and students, etc.” Guess who’s legitimate and natural and who’s not?

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No, not you either

Women across the U.S. learned in 2022 that they’d lost control of their bodies when the conservative majority on the Supreme Court overturned Roe. Remember when the prospective justices pledged fealty to stare decisis in their Senate confirmation hearings? Right? Their statements under oath were and are worthless. Because the ends that justify the means with this crowd.

Since Donald Trump lost the presidency in 2020, conservative reactionaries have dropped the coy act. They’re saying out loud what they plan to do to America — to you — when they regain control of the White House. SCOTUS just promised Trump king-like immunity for whatever crimes he commits under the color of official acts. He’s drooling.

The Lincoln Project is made up of former Republicans. They know their former allies. They created a primer on what’s ahead. Yes, they mean to scare you straight. Straight to the voting booth.

Donald Trump’s plan for America is no secret. Beating Trump this November is the only mission. The Lincoln Project invites you to take a peek at the terrible future Donald Trump would impose on America. pic.twitter.com/XyynK48FG6

— The Lincoln Project (@ProjectLincoln) July 8, 2024

John Yoo authored the infamous Bush administration memos that justified torture of prisoners in violation of the Geneva Conventions. Torture wasn’t about the mythical ticking time-bomb scenario. It was about exacting revenge on suspected terrorists in the wake of the September 11 attacks. In the conservative Matrix, laws are bent to justify criminal acts, revenge, and retribution.

Jonathan Chait wrote recently about Yoo’s concern for norms and his vision for twisting the laws to exact Republican revenge on Democratic enemies:

John Yoo, the former Bush administration lawyer (who himself escaped prosecution for his role in constructing legal justifications to torture detainees, many of whom turned out to be held wrongfully in the first place), has an essay in National Review arguing for revenge prosecutions. The imprimatur of Yoo, a Berkeley law professor and fellow at two of the conservative movement’s least-insane think tanks (the American Enterprise Institute and the Hoover Institution), underscores the progression of “lock her up” from wild seriously-not-literally Trump-campaign demagoguery in 2016 to party doctrine in 2024.

“Repairing this breach of constitutional norms will require Republicans to follow the age-old maxim: Do unto others as they have done unto you,” urges Yoo. “In order to prevent the case against Trump from assuming a permanent place in the American political system, Republicans will have to bring charges against Democratic officers, even presidents.”

Like allegations of stolen elections and voter fraud, no evidence required. Republicans will lock up opponents for unspecified “crimes.”

Trump operatives say their plan is to jail and execute those who don’t support Trump if he wins, echoing Project 2025

(They have since scrubbed this video from YouTube) pic.twitter.com/MBwNRbTIpS

— Biden-Harris HQ (@BidenHQ) July 9, 2024

These guys are not just cranks with a podcast, like Tim Pool (above). These guys are serious. “Some folks need killing”? Guess who?

Mark Robinson, GOP candidate for North Carolina Governor: “Some folks need killing. It's time for somebody to say it… It's a matter of necessity” pic.twitter.com/QvXuJczQ9P

— DNC War Room (@DNCWarRoom) July 5, 2024

They are state figures, national figures.

"Some will say now that I am calling America a Christian Nation. So I am.

And some will say that I am advocating Christian Nationalism. And so I do."

-Senator @HawleyMO at NatCon 4 pic.twitter.com/yyJsA0BIkf

— National Conservatism (@NatConTalk) July 9, 2024

Conservative reactionaries are being egged on by Trump’s growing thirst for blood:

Trump’s suggestion that there should be a migrant fighting league is dehumanizing and part of a much larger pattern of racism, white supremacy, and nativism against Black and brown people. Channeling Adolf Hitler, Donald Trump has repeatedly described non-white migrants and refugees as “vermin” and “poison” in the blood of the nation. A migrant fight club is the logical next step in such beliefs.

Oh, but those people are not like me? Think again.

And women? Roe was just the beginning. They’re coming for birth control and more.

Had seen the headlines on softening gop platform language on abortion. Jesus, how did people fall for this? I thought it maybe said leave it to the states. No it goes full fetal personhood under 14th. Any news org that fell for this shld be drawn and quartered. Good grief.

— Josh Marshall (@joshtpm) July 9, 2024

Jamelle Bouie:

Where the 2016 and 2020 Republican platforms called for a national abortion ban, demanded a constitutional amendment to establish due-process rights for embryos and fetuses and stated that “the unborn child has a fundamental right to life which cannot be infringed,” the 2024 platform simply states the Republican Party’s belief that “the 14th Amendment to the Constitution of the United States guarantees that no person can be denied life or liberty without due process and that the states are, therefore, free to pass laws protecting those rights.”

Read “fetal personhood,” couched euphemistically.

Lest I start quoting “First they came for,” recall, we here at Hullabaloo in 2019 got threatened with a defamation suit brought by Trump and the Trump Organization. We treated it as a joke. It’s a fun anecdote to tell at parties. (Like, join the club of people Trump’s threatened to sue.) But under Project 2025 in a second Trump administration, who knows how low down the food chain these fascists will go? Who have you pissed off?

So. Find your local Democrats and donate, volunteer, stat! Local Dems are useless and have no “game”? (Yup, that happens.) Try the local Indivisible or the League of Women Voters. How about Field Team 6? There are lots of ways to impact the trajectory of this election even in a solidly blue state.

My advice? Don’t wind up as political roadkill. Or actual kill.

Zelensky in Washington says “let’s be candid and frank”

“Everyone is waiting for November”: the Americans, the Europeans and the Russians. “The whole world is looking to November” pic.twitter.com/3HmtjqetjJ

— John Hudson (@John_Hudson) July 10, 2024

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Will SCOTUS now revisit Dobbs and Heller?

Need I repeat that conservatives principles always seem to be a mile wide and an inch deep? Democracy, the rule of law, the peaceful transfer of power, peace through strength, the sacredness of the Constitution, etc.

“If you ask me what the biggest problem in America is, I’m not going to tell you debt, deficits, statistics, economics—I’ll tell you it’s moral relativism,” Congressman Paul Ryan insisted four years before becoming House Speaker. Relativism was for years a charge conservatives levied against liberals. Until it was no longer useful.

My memorable first introduction to Rick Perlstein in 2005 included something Richard Nixon once told a staffer, “Flexibility is the first principle of politics.” Expediency conservatives hold sacrosanct.

Jill Lepore asks in The New Yorker whether, having sacrificed the 14th Amendment in pursuit of political expediency, “originalists” on the Supreme Court now feel free to rexamine other amendments:

There’s more than one way to skin a Constitution. Here are two: a court might base a decision on the original intention, meaning, and public understanding, the “history and tradition,” of a constitutional provision, or it might base a decision on a consideration of the consequences. Ordinarily, a judge might apply both these and other methods, but a strict originalist might argue that the jurisprudence of originalism is fundamentally opposed to the jurisprudence of consequentialism—that it’s best to heed the past and damn the consequences. During oral arguments at the Supreme Court in Dobbs v. Jackson Women’s Health Organization, for instance, Justice Samuel Alito asked about origins (“Can it be said that the right to abortion is deeply rooted in the history and traditions of the American people?”), and Justice Sonia Sotomayor inquired after consequences (“When does the life of a woman and putting her at risk enter the calculus?”). Alito wrote the majority opinion, declaring that no right to an abortion can be found in the Constitution’s history and tradition, and that therefore “the Fourteenth Amendment does not protect the right to an abortion.” Sotomayor joined a dissent that denounced “the majority’s refusal even to consider the life-altering consequences” of its decision.

This term, the tables turned. In Trump v. Anderson, the Court agreed to review a decision by the Colorado Supreme Court to strike the former President’s name from that state’s Republican primary ballot. That court had found that Donald Trump, owing to his role in the events of January 6th, had been disqualified under Section 3 of the Fourteenth Amendment, which prohibits people who have sworn an oath to the Constitution and then engaged in an insurrection against it from holding office. Maine and Illinois also determined that Trump had disqualified himself.

There are strong arguments against disqualifying Trump, but none involve the historical record: the evidence of history supported affirming the Colorado Supreme Court’s decision. (I and the historians David Blight, Drew Gilpin Faust, and John Fabian Witt made this argument in an amicus brief.) During oral arguments, Justice Sotomayor asked about origins: “History proves a lot to me.” Justice Alito worried about outcomes: “The consequences of what the Colorado Supreme Court did, some people claim, would be quite severe.” So did Chief Justice John Roberts, who asked Jason Murray, the lawyer representing Colorado voters, what he’d do with what “would seem to me to be plain consequences of your position?” Alito asked Murray “to grapple with what some people have seen as the consequences of the argument that you’re advancing.” Posing one hypothetical after another, Alito asked, “Then what would we do?”

Whether to err on the side with tradition or consequences, like other political debates, depends not on principle, but on whose ox is being gored. It’s not that both liberals and conservatives aren’t flexible in their principles. It’s that conservatives are utterly shameless in Texas-two-stepping around theirs when convenient.

Until very recently, the Second Amendment, known as “the lost amendment,” hardly ever came up. In a unanimous opinion in 1939, the Court ruled that it protected the right to bear arms only as part of a well-regulated militia. Then, beginning with D.C. v. Heller, in 2008, and continuing down through New York State Rifle & Pistol Association v. Bruen, in 2022, the Court codified a new, individual-rights reading that it described as “original,” and devised history tests (including a “historical-analogy” test) that any effort to curtail gun violence must pass in order to be deemed constitutional. Without the fealty to originalism that these cases demanded, there could be no Dobbs—no impossible test for abortion to fail.

Historians protested that the Court’s interpretation of the Second Amendment was wrong and its tests preposterous. In Bruen, a case involving the question of where New Yorkers can and cannot carry guns, which was argued four weeks before Dobbs, oral arguments included groping for an eighteenth-century equivalent of a football stadium. Pressed by Justice Elena Kagan, the lawyer for the petitioner admitted the limits of historical analogies, given that, for instance, you can’t base denying felons the right to own guns on any eighteenth-century law, since, at the time, many crimes were capital crimes. Felons weren’t banned from carrying guns; they were executed. Justice Stephen Breyer later tried to intervene: “Even following Heller and following the history, which I thought was wrong,” he said, he wondered which way the Court could possibly rule that would not result in “a kind of gun-related chaos.” But why should anyone follow Heller or Bruen, whose reasoning attempts to defy the very passage of time? By that logic, the constitutionality of I.V.F. turns on identifying the eighteenth-century equivalent of a frozen embryo.

If the Court is now interested in consequentialist arguments, here’s one: in the past quarter century, more than three hundred thousand American children have experienced armed civilians attacking their schools. Last year, there were six hundred and fifty-six mass shootings in the United States. Four out of five murders and more than half of all suicides in this country involve a gun. Gun ownership is rising, and so is political violence. For nearly a century, beginning with the earliest public-opinion surveys, Americans have consistently supported safety measures and curbs on gun ownership. Since 2008, the Court has thwarted them.

And the Court will until gun violence reaches reaches their families. Consequences. Miraculously, the scales will fall from their eyes.

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