151 search results for ""14th amendment""

The new first principle of politics

The Games of the XXXIII Olympiad take place in Paris in July 2024. The organizers periodically add new events and remove others from sports that have fallen out of use/favor. Not having checked to see if that’s happened for the upcoming Olympics, I have a suggestion for a new event. Credit where due, David Frum inspired the idea.

Frum (indirectly) identifies in The Atlantic the dominant principle held by the Party of Trump: flexibility. “Flexibility is the first principle of politics,” Richard Nixon once advised a staffer and, hoo-boy, are Republicans flexible.* Frum provides a few examples where the Trump faithful nimbly pivot whenever it suits them. There’s a new first principle on the block.

Point out where Republicans benefit from and leverage our system’s anti-majoritarian features to engineer for themselves permanent minority rule? We’re a republic, not a democracy.

States rule that Donald Trump, post-insurrection, is ineligible under the 14th Amendment to hold public office in any capacity? Let the people decide!

Frum summarizes what we know of the Trump era — the lies, the hypocrisy, the attempts to rig the 2020 election, the attempts to rig the post-election. There’s no need to recount it all here. The point is this:

Trump and his supporters have conjured a series of self-serving rules. Where antique anti-majoritarian devices work for them, the antique anti-majoritarian devices prevail. Where crude gaming of filibusters and gerrymandering works for them, the crude gaming must prevail. Where fraud and violence work for them, fraud and violence must prevail. And where invoking democratic ideas works for them—well, you can complete the sentence.

How should people who are serious about democratic principles respond to this avalanche of bad faith? Democratic ideals don’t cease to be true just because they can be exploited by dishonest actors. Yet democracy also cannot become an optional principle that authoritarians can use when it suits them and then discard without consequences when it becomes an obstacle to their goals. Democratic systems have constitutions and constitutional remedies precisely to protect themselves against those who toggle in this way between breaking inconvenient rules and demanding the benefit of favorable ones.

Frank Wilhoit provided the most biting, class-based formulation of bad faith politics:

Conservatism consists of exactly one proposition, to wit:

There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.

Even shorter: Heads, I win, tails, you lose.

Those of us living under minority rule know that one well.

Frum, once skeptical of disqualifying Trump under the 14th Amendment, is now “disqualification-curious.”

Maybe prudence genuinely does recommend leaving Trump’s disgraced name on primary and general-election ballots. But remember that old joke about the man who murdered both of his parents and then asked for mercy as an orphan? It needs to be replaced by a new joke about the ex-president who trashed democracy when he had the power, and then pleaded for the protection of democracy so he could have one more chance to trash democracy again.

As popular as public displays of conservative bad faith have become since the 2008 election, perhaps they deserve their own Bad Faith Olympic games event. Perhaps Donald Trump will compete. No one knows more about bad faith than Trump. Just ask him. He and his retinue already possess the necessary Nixonian flexibility.

* Read up on the Nixon renaissance at Politico Magazine.

Pwnallthethings lampoons 14th Amendment punditry

I’m ripping this off wholesale for the reading enjoyment of those not on Blue Sky.

First replace Trump with Obama and the 14th Amendment with the 22nd, says Pwnallthethings:

Now do it everywhere:

If you know, you know:

Naturally The Wall Street Journal gets in on the act:

One Connor Lynch comments: These rewrites really capture the solipsistic pedantry of the highly implausible counter arguments that keep popping up in editorial pages.

Pwnallthethings replies:

It’s fun applying their “ah, yes, the constitution says X, but they mean X in a special secret way that only I with this decoder triangle can parse for you” logic to similarly basic provisions elsewhere

When the 22nd Amendment says “elected only twice” the etymology of the latin prefix “bi” means “two”, but “biannual” might mean every two years, or twice per year, up to a total amount of four, and for that reason, “twice” here should be understood to permit “three”, a number less than “four” …

Imagine the remaining dialogue read as a Monty Python skit:

Connor Lynch: The 22nd Amendment’s use of “shall” here is not a mandate for courts and legislatures but merely predictive. It is guidance for voters, its enforcement and interpretation left exclusively to them.

Pwnallthethings: While the 22nd Amendment says that “No person shall be elected to the office of the President more than twice”, it is not clear that the Presidency is an office at all; and consequently nobody has ever been elected president even once, and Obama can be elected a third time. In this essay I shall

Connor Lynch: “The 22nd amendment isn’t self-executing” would be a fun one. Being elected three times isn’t a crime, so it must be permitted

Pwnallthethings: No jury has convicted president Obama of having held two terms, nor has any prosecutor indicted him for it. Consequently denying him the ballot on 22nd Amendment grounds would be a gross violation of both his and our due process rights. As Professor of Law for the University of Tesla, I will show

And so on.

Real pundits get paid to write this. Remember that.

Update:

Trump barred from 2024 primary ballot

First Colorado. Now Maine.

Maine on Thursday became the second state to bar Donald Trump from the 2024 primary ballot over his actions related to the Jan. 6 insurrection. Several Maine citizens challenged Trump’s eligibility for the presidency under the Constitution’s 14th Amendment. Secretary of State Shenna Bellows (D) reviewed the Jan. 6 record and found the reasoning of the Colorado Supreme Court to strike Trump from the primary ballot there “compelling.”

“The U.S. Constitution does not tolerate an assault on the foundations of our government, and Section 336 [Maine statutes] requires me to act in response,” Bellows writes. “I am mindful that no secretary of state has ever deprived a presidential candidate of ballot access based on Section 3 of the 14th Amendment. I am also mindful, however, that no presidential candidate has ever before engaged in insurrection.”

Live shot of Maine's secretary of state striking Trump from the ballot pic.twitter.com/TTjZo5Qwa2

— Will Bunch (@Will_Bunch) December 29, 2023

Trump will appeal both the Maine and Colorado decisions.

So many court cases, so little time

California gets in on the action, says nope (New York Times):

Hours later, her counterpart in California announced that Mr. Trump would remain on the ballot in the nation’s most populous state, where election officials have limited power to remove candidates.

The Michigan Supreme Court ruled on Wednesday that Michigan’s secretary of state lacks the authority to remove Trump from the primary ballot, writing, “At the moment, the only event about to occur is the presidential primary election. But as explained, whether Trump is disqualified is irrelevant to his placement on that particular ballot.”

New York Times:

Ron Fein, the legal director of Free Speech For People, which filed the lawsuit seeking to disqualify Mr. Trump, said the Michigan Supreme Court ruled narrowly, sidestepping the core questions at the heart of the case.

But, he noted in a statement, “The Michigan Supreme Court did not rule out that the question of Donald Trump’s disqualification for engaging in insurrection against the U.S. Constitution may be resolved at a later stage.”

“Oregon Secretary of State LaVonne Griffin-Valade announced on Nov. 30 that she does not have the legal authority to remove Trump from the primary ballot,” reported the Central Oregon Daily News on Thursday.

“I understand that people want to skip to the end of this story. But right now, we don’t even know who the nominee will be,” said Secretary Griffin-Valade in the statement. “When the general election comes, we’ll follow the law and be completely transparent with our reasoning.”

With felony charges to fend off in four jurisdictions and efforts countrywide to bar insurrectionists from state general election ballots, Donald Trump may have trouble finding time to actually campaign for president. Or one can hope.

He’ll fundraise the hell out of them all, naturally.

“Utterly bizarre”

Is this a joke?

Clarence Thomas: The Best and Most Incorruptible Supreme Court Justice in U.S. History

This Friday encomium to Clarence Thomas, is it Steven Calabresi’s or The Volokh Conspiracy’s idea of a joke?

Justice Thomas’s brilliance, and commitment to originalism shine through in all of his opinions. He is more consistent, steady, and reliable than any other justice on the Supreme Court. He almost never follows precedent, but he always follows the original public meaning of the text of the Constitution. He is the very best justice out of 116 to have ever served on the U.S. Supreme Court better even than my old boss Justice Antonin Scalia. Justice Thomas not only talks about the importance of being an originalist; he practices originalism in every majority opinion, concurrence, or dissent that he writes.

That’s some bad-ass weed.

“This is utterly bizarre.” — Popehat

Left wing bias, and a disinclination to read Justice Thomas’s opinions, has so skewed our public perception of him that no-one realizes what former Second Circuit Chief Judge Ralph Winter once told me is true: “Clarence Thomas is quite simply a genius.”  Moreover, Justice Thomas has such a clear body of rules, which he consistently follows in case after case over 32 years on the bench that it is as obvious as the day is long that he is incorruptible in every sense of that word.  Justice Thomas would never “bend” the law to please Justice Scalia, his closest friend; his wife Ginni Thomas, who is active as she has every right to be in politics, or his good and close friend; the Koch brothers; Texas billionaire Harlan Crow; or anyone else.   Clarence Thomas cannot be “bought.”  He is completely and utterly incorruptible as anyone who takes the time to read the opinions, which he produces prolifically can plainly see. 

Why shouldn’t Clarence Thomas accept (and not declare) expensive gifts and luxury vacations from billionaires?

If Congress had adjusted for inflation the salary that Supreme Court justices made in 1969 at the end of the Warren Court, Justice Thomas would be being paid $500,000 a year, and he would not need to rely as much as he has on gifts from wealthy friends.

When was the last time Reason argued for cost-of-living adjustments? No matter. Thomas the Destitute is due what’s his.

“I thought the quotes from here were sarcastic paraphrases but here is one of the most important figures in the conservative legal movement articulating its fundamental principle: the rules do not apply to us because we are special” — Adam Serwer

Clarence Thomas grew up dirt poor as is made clear in his superb autobiography My Grandfather’s Son.  He has devoted his entire professional life as a lawyer to serving in government jobs in which he has been grossly underpaid.  Under these circumstances, Thomas, who again is incorruptible, as his 32 years of judicial opinions all show, has every right to accept gifts from wealthy friends.

It’s his friggin’ right, dammit! Like women’s right to bodily autonomy … except not.

So was this post by Calabresi (8/10/2023) a joke too?

Trump Is Disqualified from Being on Any Election Ballots

Don’t bother looking. A month later Professor Calabresi (Northwestern University) made “an extraordinary about-face” (New York Times, 9/18/2023):

In a letter to The Wall Street Journal, he said he had been persuaded by an opinion article in that newspaper that the provision — Section 3 of the 14th Amendment — did not apply to Mr. Trump.

That would be the “Trump is not an officer of the United States” (and the presidency not an office under the Constitution) argument soundly rejected by the Colorado Supreme Court last week.

“Let me be clear,” Akhil Reed Amar, a law professor at Yale, said [in September] on his podcast. “This is a genuinely stupid argument.”

But self-serving, so what of it? (There’s more than rum in that eggnog, ya think?)

“the crudeness of that column was something else. it’s not even really an argument so much as an assertion that clarence thomas deserves to have whatever he wants because he’s clarence thomas, which is a weird thing for a libertarian magazine to publish.”  —GOLIKEHELLMACHINE

Oh, what goodies will Justice Thomas and the the Federalist Society find under their trees tomorrow morning? A little coke … I mean Koch?

WHAT went viral?

They seemed otherwise unstoppable. Then common terrestrial bacteria felled the invading Martians in “War of the Worlds.” Put a pin in that. Could it be important?

A week or so ago, this post from Adam Kinzinger popped up and … whut? Whatever prompted that was unclear or I missed it and dismissed it.

I’m genuinely surprised how people close to Trump haven’t talked about the odor.

It’s truly something to behold. Wear a mask if you can

— Adam Kinzinger (Slava Ukraini) 🇺🇸🇺🇦🇮🇱 (@AdamKinzinger) December 16, 2023

Then last night this pops up:

#TrumpSmells Becomes Top Trend
in U.S. As Claims of Putrid Odor Go Viral

The hashtag #TrumpSmells quickly skyrocketed to the top trending topic in the United States on X after Donald Trump’s team threw a stink over claims that the ex-president and criminal defendant has an “odor” that is “truly something to behold.”

The story on MeidasTouch includes video “testimony” from former The Apprentice staffer Noel Casler about “Diaper Don”:

“The diapers is not a joke,” Casler began.

“He would often soil himself on The Apprentice set. He’s incontinent from all the speed, all the Adderall he does, all the cocaine that he’s done for decades…His [bowels] are uncontrollable.”

Casler claimed that Trump has been wearing diapers since the 1990s and the he had a chance to witness it firsthand in the late 2000s, while working on the set of The Apprentice.

One hellsite user Xitted, “Wonder why Trump hasn’t sued Noel Casler for defamation yet? Prob cause discovery would be wild”

“It’s true. Many people are saying,” quipped another X user.

The net filled up with snide comments and images of Trump “panty lines,” some photoshopped, others not. Team Trump was not amused.

Yet another netizen postulated:

Team Trump is desperately pushing a narrative about @RonDeSantis supposedly being gross when he eats as a distraction from the growing #TrumpSmells scandal as the Orange Emperor is found to be a putrid diaper-soiling scent machine.

That DeSantis video is here.

So, hold your nose but not your breath at the prospect of something as primitive as smell stopping Trump’s nascent fascist movement. We’ve held out so many hopes for stopping a second Trump presidency. He faces a raft of criminal charges. He could be convicted before 2024 voting starts. He faces 14th Amendment challenges in court. He could be declared disaqualified.

Or.

“One consistent finding is that conservatives show higher disgust sensitivity than liberals,” finds one of many studies. “To a surprising degree, our political beliefs may derive from a specific aspect of our biological makeup: our propensity to feel physical revulsion,” Kathleen McAuliffe recounted inThe Atlantic.

The ultimate irony would be smell being what lodges in the lizard brains of MAGA cult members and finally stops Diaper Don.

Happy Hollandaise!

No, not a Tom Hanks sequel

The Colorado Supreme Court on Tuesday ruled 4-3 that Section 3 of the Fourteenth Amendment is not a dead letter. The court found Donald J. Trump ineligible to appear on the 2024 Colorado primary ballot. The Jan. 6 violence was consciously encouraged by Trump, that the violence constituted an insurrection, that his actions are disqualifying, and that no legislative action is required to make it so. The provision is self-executing.

The case brought by several Republicans and one independent voter charged that it would violate state election law if Secretary of State Jena Griswold placed an ineligible candidate on the Colorado primary ballot. Specifically, that Trump is ineligible (Washington Post):

“A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution,” the decision reads. “Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot.”

[…]

“We do not reach these conclusions lightly,” the majority wrote. “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.”

Don’t be absurd

The Colorado court’s decision (between the lines) includes numerous FUs to the former president and his hapless attorneys.

The amendment’s other sections require no enabling legislation, the court found. Section 3 adds a disqualification to the constitution’s existing qualification for the presidency, no different from the age and citizenship requirements. The court cites multiple cases where states held those provisions to be self-executing (pg. 31). California refused to place a twenty-seven-year-old on the presidential ballot; Colorado (in the Hassan case involving then-Judge Neil Gorsuch) excluded a naturalized citizen from the presidential ballot; Illinois found a thirty-one-year-old candidate disqualified from its presidential ballot.

Now-Justice Gorsuch wrote in the Hassan decision he surely must remember:

… it is “a state’s legitimate interest in protecting the integrity and practical functioning of the political process” that “permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”

The court brushed aside Trump’s arguments that in exercising its right to free association a political party has the right to nominate whomever it chooses. Could it then nominate that twenty-seven-year-old or someone not a natural-born citizen? No. Don’t be absurd, the court did not add.

The argument that Section 3 does not apply to the presidency the court also found absurd (CNN):

Section 3 of the 14th Amendment says oath-breaking insurrectionists can’t serve as senators, representatives, presidential electors, “or hold any office, civil or military, under the United States, or under any State.” But it doesn’t mention the presidency.

This textual vagueness is why the trial judge kept Trump on the 2024 ballot. But the high court disagreed. And this was the linchpin of their decision to disqualify Trump.

Trump argued that as mentioned in Section 3 the presidency is not an “office” under the Constitution. But the court finds 25 times elsewhere in the Constitution where the presidency is referred to as an “Office” (i.e., you’re wasting our time).

The court concludes (pg. 127):

Our independent review of the record in this case brings us to the same conclusion: President Trump incited and encouraged the use of violence and lawless action to disrupt the peaceful transfer of power. The tenor of President Trump’s messages to his supporters in exhorting them to travel to Washington, D.C. on January 6 was obvious and unmistakable: the allegedly rigged election was an act of war and those victimized by it had an obligation to fight back and to fight aggressively. And President Trump’s supporters did not miss or misunderstand the message: the cavalry was coming to fight.

The decision itself is “unassailable” in the opinion of retired conservative appellate judge J. Michael Luttig (CNN):

“The individual justices of the Colorado Supreme Court brought honor to their court as well to the state and federal judiciaries with their opinion tonight in this historic case,” Luttig told CNN’s Pamela Brown on “AC360” Tuesday, describing their “meticulous” efforts to address all the issues involved in the case.

“Their opinion is unassailable under the objective law of the federal constitution and section 3 of the 14th Amendment. The Supreme Court of the United States ought to affirm this decision today,” he added.

The unprecedented decision opens a can of worms and raises too many questions to answer this morning.

What will SCOTUS decide? Will John Roberts find a way to “not mix in” and/or let the Colorado decision stand? Will other states follow if that happens or if the Supremes uphold Colorado? Will Republicans nominate someone else if they do? (Can RNC members afford the private security?) Will Justice Clarence Thomas, wife of Ginny of Insurrection, recuse? Will the outcome help Joe Biden or hurt him?

Amanda Marcotte worries what happens if Trump gets stripped off several state ballots (Salon):

All of those never-Trumpers we thought were our buddies will abandon the #Resistance so fast it will make Democratic heads spin. And the MAGA types could be so angry about losing Dear Leader they will rush the polls to vote as hard against Biden as possible. 

David Frum admits his predictions about the case were wrong and believes it more likely Trump will not be the GOP nominee. SCOTUS now has an opportunity to save itself and the republic on which Clarence Thomas‘ paycheck stands (The Atlantic):

The U.S. Supreme Court now has the opportunity to offer Republicans an exit from their Trump predicament, in time to let some non-insurrectionist candidate win the Republican nomination and contest the presidency.

The Colorado court has invited the U.S. political system away from authoritarian disaster back to normal politics—back to a race where the Biden-Harris ticket faces more or less normal opponents, rather than an ex-president who openly yearns to be a dictator.

Naturally, MAGA Republicans are not amused (CNN):

Republican National Committee Chairwoman Ronna McDaniel attacked the Colorado Supreme Court’s decision to remove former President Donald Trump from the state’s 2024 ballot

She called it “election interference” in a post to X, and said the RNC’s legal team “looks forward to helping fight for a victory.”

House Speaker Mike Johnson said the ruling was “nothing but a thinly veiled partisan attack.” He said voters should be able to decide the nominee.

“Regardless of political affiliation, every citizen registered to vote should not be denied the right to support our former president and the individual who is the leader in every poll of the Republican primary,” Johnson said.

The decision is on hold until January 4, one day before Griswold is required to set the March 5 primary ballot candidate list in stone. This will allow the U.S. Supreme Court time to decide whether it will review the case. Which it almost certainly will. Trump will insist.

Happy Hollandaise to all y’all!

And these are just for starters

Judd Legum came up with a good Top 10 Trump dictatorial promises. I might have put invading Mexico and destroying NATO in the top 10 but that’s just me.

Anyway, the first is his explicit promise to be a dictator on Day One. The following are the other nine:

Trump says election fraud in 2020 gives him the power to “terminate” the Constitution

On December 3, 2022, Trump posted the following message about the 2020 presidential election on his social media platform, Truth Social:

A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution. Our great “Founders” did not want, and would not condone, False & Fraudulent Elections!

Following a backlash from some Republican elected officials, Trump later claimed reports that he was open to terminating the Constitution were “fake news.”

Trump says he will issue “full pardons” to January 6 insurrectionists

Trump has promised to issue pardons to those involved in the January 6, 2021 Capitol insurrection. In September 2022, in an interview with Wendy Bell, Trump said, “I will look very, very favorably about full pardons… with an apology to many.”

In May 2023, during a town hall with CNN, Trump again said that he would likely pardon “a large portion of” insurrectionists, stating that “it’ll be very early on.” Trump said, “They’re living in hell… and they’re great people. Many of them are just great people.” Trump added that while he was “inclined to pardon many of them,” he couldn’t “say for every single one because a couple of them, probably, they got out of control.” 

Among those convicted for their actions on January 6 are Thomas Webster, who was sentenced in September 2022 to “10 years in prison for assaulting police” during the Capitol attack, and Henry “Enrique” Tarrio, the former chairman of the Proud Boys, who was sentenced in September to 22 years in prison for “seditious conspiracy and other charges related to the breach of the U.S. Capitol.” 

Trump says he will cut funding to schools that cover subjects he believes are “inappropriate”

Trump has vowed to cut funding for schools that teach about aspects of race and gender. In a campaign video released in January, Trump promised to “cut federal funding for any school or program pushing Critical Race Theory, gender ideology, or other inappropriate racial, sexual, or political content onto our children,” stating that “[w]e are not going to allow it to happen.” 

Critical Race Theory is a complex legal theory that is not taught in K-12 schools. Despite this, the right has dubbed many books that simply discuss racism as Critical Race Theory. Because of this, if Trump is reelected, any school that does not implement an ideological purge of its curricular materials could be at risk of losing federal funding.

Trump says he will legally erase trans people and ban them from military service

In a video posted to his social media platform Truth Social, Trump said he would “ask Congress to pass a bill establishing that the only genders recognized by the United States government are male and female, and they are assigned at birth” if reelected in 2024. At the Turning Point Action conference in July, Trump additionally promised to “restore the Trump ban on transgender in the military.” 

“No serious country should be telling its children that they were born with the wrong gender,” Trump said in the video. Trump falsely claimed that it is a concept “never heard of in all of human history” before “the radical left invented it just a few years ago.” According to the Human Rights Campaign, however, “transgender and non-binary communities” have existed for centuries.

Trump says he will end birthright citizenship by executive order

Trump has pledged, on his first day back in office, to “sign an Executive Order to stop federal agencies from granting automatic U.S. citizenship to the children of illegal aliens.” The Executive Order would “make clear that going forward, the children of illegal aliens will not be granted automatic citizenship, and should not be issued passports, Social Security numbers, or be eligible for certain taxpayer funded welfare benefits.” Moving forward, “at least one parent be a U.S. citizen or lawful permanent resident for their future children to become automatic U.S. citizens.” 

Such an order would defy 125 years of legal precedent and the text of the 14th Amendment: “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.” The 14th Amendment was adopted in response to the Supreme Court’s Dred Scott decision, which denied citizenship to people of African descent born in the United States. 

Trump says he will impose a new 10% tax on all imported goods

In an appearance on Fox Business on August 17, 2023, Trump pledged to impose a new 10% tariff on all imported goods. “When companies come in and they dump their products in the United States, they should pay, automatically, let’s say, a 10 percent tax,” Trump said. “I do like the 10 percent for everybody.”

This tariff would be passed on to consumers, who would be pushed “into buying higher-cost, lower-quality goods, because that’s what protectionism does, making America as a whole poorer.” It could also spark a wave of retaliatory tariffs, harming U.S. businesses and the global economy.

Trump says he will investigate NBC and MSNBC for treason and potentially remove the company from public airwaves

Trump has proposed investigating media publications for treason. In a post on Truth Social, Trump said that “Comcast, with its one-side and vicious coverage by NBC NEWS, and in particular MSNBC… should be investigated for its ‘Country Threatening Treason.” Trump promised that when he “WIN[S] the Presidency of the United States” the media “will be thoroughly scrutinized.”

Trump also questioned whether media companies should be potentially removed from the airwaves. “Why should NBC, or any other of the corrupt & dishonest media companies, be entitled to use the very valuable Airwaves of the USA, FREE?” Trump called NBC a “true threat to Democracy” and “THE ENEMY OF THE PEOPLE,” stating that the “Fake News Media should pay a big price for what they have done to our once great country.” 

Trump says he will demand anyone convicted of selling drugs get the death penalty

In May, during a CNN town hall in New Hampshire, Trump said, “We’re going to be asking everyone who sells drugs, gets caught selling drugs, to receive the death penalty for their heinous acts,” adding that “it’s the only way.” According to Drug Policy Facts, there were 110,771 arrests in the United States “for sale or manufacture of a drug” in 2022.

According to NPR, expanding the death penalty as Trump suggests for drug offenses “would be a violation of the United Nations’ International Covenant on Civil and Political Rights (ICCPR),” which states that the death penalty should only be used for “the most serious crimes.”

Trump says he will order the arrest of all urban homeless and relocate them to federally-run tent cities

In August, Trump posted a video to his website announcing his plan to combat homelessness by “BAN[NING] urban camping wherever possible.” Trump promised that the “[v]iolators of these bans will be arrested, but they will be given the option to accept treatment and services if they are willing to be rehabilitated,” adding that “[m]any of them don’t want that, but we will give them the option.” 

Trump says he will “open up large parcels of inexpensive land, bring in doctors, psychiatrists, social workers, and drug rehab specialists, and create tent cities where the homeless can be relocated and their problems identified.”

According to the National Alliance to End Homelessness, “[t]here were nearly 600,000 Americans experiencing homelessness last year.” Ann Oliva, the CEO of the organization, told Newsweek that Trump’s plan was “alarming and dangerous in numerous ways,” stating that “[t]he way to end homelessness is not to arrest people and move them out of sight into internment camps.” 

By the way, he has also said that if the homeless refuse to be moved to these alledgly utopian prison camps probably in the desert he will have them arrested. I suspect he’ll put his old pal Sheriff Joe Arpaio or one of his heirs to do that job, as he used to do in Maricopa county where he housed inmates in desert tents with 100 degree heat. He liked to make them wear pink underwear too for some reason.

I realize that some of this reflects legitimate concerns and fear that way too many people will see his “solutions” as attractive in their simplicity. (Also there’s a clear desire to punish somebody for something among too many of our fellow Americans right now, and there are a number of vulnerable populations in the cross hairs.)

If you believe that we are still a nation of laws and constitutional rights then this stuff is as daft as Trump’s plan to build an impenetrable nuclear dome over the whole country. With out those safeguards, he can probably build as many camps as he wants and put all us vermin in them whenever he wants to. Who’s going to stop him?

Some are gospel, others mere suggestions

It helps that the Second Amendment has a powerful manufacturing lobby behind it. It helps that the press, churches, and the ACLU stand behind the First. Case after case has reached the U.S. Supreme Court about those. The problem, of course, is that other, better-funded conservative advocacy groups exist to make application of the Constitution’s provisions as selective as possible as Frank Wilhoit so adroitly observed, if only by implication.

Poor little 14th Amendment. It’s long as amendments go (the longest). Maybe that’s why its application has been so contested and/or ignored. Too long to read? Or perhaps too radical to enforce.

Sherrilyn Ifill writes in the Washington Post:

I use the word “radical” deliberately. The 14th Amendment was conceived of and pushed by the “Radical Republicans” in Congress after the Civil War. They were so named because of their commitment to eradicating slavery and its vestiges from American political life. A number had been abolitionists, and all had seen the threat that white supremacist ideology and the spirit of insurrection posed to the survival of the United States as a republic. Although the South had been soundly defeated on the battlefield, the belief among most Southerners that insurrection was a worthy and noble cause, and that Black people — even if no longer enslaved — were meant to be subjugated to the demands of Whites, was still firmly held.

The 14th Amendment was meant to protect Black people against that belief, and the nation against insurrection, which was understood to constitute an ongoing threat to the future of our country. Frederick Douglass, the formerly enslaved abolitionist who rose to become one of the most prominent voices of the Reconstruction period, had no illusions about the persistence of the “malignant spirit” of the “traitors.” He predicted that it would be passed “from sire to son.” It “will not die out in a year,” he foretold, “it will not die out in an age.”

Depends on your definition of age.

States of the former Confederacy and others saw fit not to apply Section 1 for nearly 100 years after its passage. And the Supreme Court let them, Ifill wants us to remember. It’s still contested nearly 60 years after passage of the Civil Rights and Voting Rights Acts.

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.

Section 3 is even more an orphan. No lobbying groups, powerful or otherwise, to fight for it. And that provision in Section 2 about reducing states’ representation for disenfranchising its citizens? It may as well not be there.

Section 3
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.

Ifill reflects on the reluctance of courts to enforce the 14th Amerndment even now in the wake of the January 6 insurrection, and after a Colorado judge found that Donald J. Trump incited an insurrection, BUT:

The 14th Amendment is treated as a suggestion but rarely imposed in full measure when the status quo will be upended. This was perhaps most famously on display in 1955, in the case of Brown II, when the Supreme Court undercut its majestic decision of a year earlier in Brown v. Board of Education,by hedging on the immediate end to segregated schools and counseling instead that local officials should move with “all deliberate speed.”

The Colorado court’s approach to Section 3 continues this tradition. To find that a president incited a violent insurrection against the United States but hold that such a president can still run for public office — indeed to return to the presidency itself — could not stand in starker opposition to the words and spirit of Section 3.

The 14th Amendment has once again proved too bold for the judges empowered to interpret it. Political forces are at play again, this time fearful of a backlash if Trump is removed from the ballot. As this case makes its way through the appellate process and, most likely, to the Supreme Court, it should be understood in the context of how the timidity and unwillingness of judges to acquiesce to the judgment of the 14th Amendment’s framers effectively derailed our democracy’s promise after Reconstruction and until the mid-20th century. We must ensure that it does not do the same in the 21st.

We hold these truths to be self-evident, that Americans are better at spouting phrases from their founding and governing documents than they are at living by them.

Remember when conservatives accused liberals of moral relativism? Yeah.

Timidity and irresolution and menace

After a Colorado court ruled against barring Donald Trump from the ballot there, I commented on the atmosphere of menace Trump has created around any attempts to hold him accountable before the law for any of his actions. This includes attempts to disqualify him from holding elected office via the 14th Amendment. I focused on the fact that three different judges had cited three different reasons for not giving Trump the boot. That’s not so say (and I did not mean to suggest) the rulings were in error. But I did not address what the ruling did or did not do for Trump cases on appeal. Kim Wehle does so this morning at The Bulwark.

The 102-page ruling contains findings of fact that Colorado District Judge Sarah B. Wallace clearly wrote “with an expectation that judges at higher state courts and likely even the U.S. Supreme Court would wind up studying her analysis on an appeal petition,” Wehle writes.

Notably:

Wallace ruled, as a matter of proven fact, that:

• Donald Trump “put forth no evidence at the Hearing that he believed his claims of voter fraud despite the overwhelming evidence there was none.”
• “Trump knew his claims of voter fraud were false.”
• Trump “sought to corruptly overturn the election results through direct pressure on Republican officeholders in various states both before and after the Electoral College met and voted in their respective state.”
• “Trump knew that his supporters were angry and prepared to use violence to ‘stop the steal’ including physically preventing Vice President Pence from certifying the election.”
• “Despite knowing of the risk of violence and knowing that crowd members were angry and armed, Trump still attended the rally and directed the crowd to march to the Capitol.”
• “Trump’s Ellipse speech incited imminent lawless violence.”
• Trump’s “call to ‘fight’ and ‘fight like hell’ was intended as, and was understood by a portion of the crowd as, a call to arms.”
• “Trump’s conduct and words were the factual cause of, and a substantial contributing factor to, the January 6, 2021 attack on the United States Capitol.”
• Trump’s 2:24 p.m. tweet on January 6th that “‘Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!’ . . . caused further violence at the Capitol.”
• “Trump had the authority to call in reinforcements on January 6, 2021, and chose not to exercise it thereby recklessly endangering the lives of law enforcement, Congress, and the attackers on January 6, 2021.”
• And “the Court heard no evidence that Trump did not support the mob’s common purpose of disrupting the constitutional transfer of power.”

We’ve addressed the 14th Amendment’s Section 3 multiple times and Wehle does so again, in light of the Colorado ruling, but also summarizes where the other cases stand:

Here’s what other courts have ruled thus far about Trump and Section 3:

• Earlier this month, the Minnesota Supreme Court rejected a bid to keep Trump off the state’s primary ballot, but for a different reason than Wallace’s: that “there is no state statute that prohibits a major political party from placing on the presidential nomination primary ballot . . . a candidate who is ineligible to hold office.” Translated, the Republican party is fully in charge of who gets on the primary ballot. Yet Minnesota Chief Justice Natalie Hudson noted that the plaintiffs could file another suit later to keep Trump off the general election ballot should he win the Republican primary in Minnesota.
• In Michigan, Court of Claims Judge James Redford took a different route altogether, ruling that courts have no business deciding what Section 3 means because it’s a “political question” that exclusively belongs to Congress. (The political question doctrine is a made-up rule the Supreme Court uses if it just doesn’t want to wade into sticky political issues like crafting the technical rules governing an impeachment trial, for example.) However, if Trump wins the general election, Redford added, his eligibility under Section 3 could be revisited, and if he’s then determined ineligible, the Twentieth Amendment—which provides for the vice president-elect to become president if a president-elect dies before taking the oath of office—could somehow kick in.
• In New Hampshire, a federal judge ruled in October that John Anthony Castro, an unknown presidential candidate from Texas who has initiated over two dozen Section 3 lawsuits across the country, did not have standing to sue under Article III of the U.S. Constitution—meaning he lacked a sufficient injury to bring the matter within Article III’s “case” or “controversy” requirement that gives federal courts jurisdiction in the first place. The judge wrote: “Castro has not established that he has or will suffer a political competitive injury arising from Trump’s participation in the New Hampshire Republican presidential primary.” In addition, he agreed with the Michigan state court judge that the matter is probably a “political question” that’s for elected politicians—not judges—to decide.
• Finally, in Florida, another federal judge dismissed a case for lack of standing in September. The plaintiff in that case was an individual citizen who, the judge ruled, had no legal basis to complain about another person’s running for office. A “generalized interest” in the election outcome is not enough of an injury to invoke the power of the courts.

There is a pattern in the reluctance of lower courts (or anyone in Congress or the elections machinery) to take a stand on Section 3. Brian Beutler chalks it up to (as I suggested) the “timidity and irresolution of the judiciary.” Wallace found “a (tortured) way to construe the 14th amendment that exempted Trump,” and thus “felt compelled to adopt it,” Beutler writes (subscription req’d for full access):

The judiciary is essentially split between judges, like Aileen Cannon, who are thrilled to protect Trump from the rule of law, and more impartial jurists who are scared to apply it to him. The latter behave as though holding Trump to a more lenient set of rules is worth it to avoid some civil strife they’ve conjured in their minds, or the death threats they know will follow any significant adverse rulings. I suspect these kinds of considerations influenced Judge Wallace. They also seem to influence Arthur Engoron, the New York judge in Trump’s civil-fraud case who barks loudly about Trump’s flagrant contempt of court, but can never bring himself to bite.

Same with Chutkan, who early on signaled she’d be reluctant to jail Trump for violating the terms of his bond, and would only deter him with the threat of a speedier trial. “The more a party makes inflammatory statements about this case which could taint the jury pool,” she stated, “the greater the urgency will be that we proceed to trial quickly.”

Um, yeah, well.

If Trump stands federally convicted early-mid 2024 of conspiring to overturn the 2020 election, Beutler asks, then what? Would he remain free on (endless) appeal? Would the Roberts Supreme Court quickly overturn his conviction (something Trump would obviously bet on)?

All Americans—and that sincerely includes Trump and all of his supporters—deserve for him to be tried for his crimes before the GOP selects his nominee; if convicted, for him to be jailed immediately; if jailed, for his party to have time to make a considered decision about whether to nominate him; and for the election to proceed from there. 

That seems unlikely to happen. Trump is making a mockery of the very law judges swore to uphold. Delays by the Justice Department and Fulton County District Attorney Fani Willis in bringing cases may be justified (“You come at the king, you best not miss”), yet the timing plays right into Trump’s tiny hands. It all makes the possibility of Trump winning a second term “as an unimprisoned convict” that much more real, Beutler believes.

But that’s not merely because our justice system moves slowly and methodically — timidly, irresolutely in Beutler’s telling — but also because of the atmosphere of menace Trump and his supporters have created in the country through violence, threats, and intimidation reinforced with tactical gear and AR-15s. We’ve moved on from heads, we win, tails, you lose to heads, we win, tails, you die.

Either way, the country could die.

Kicking the 14th Amendment down the road

Whistling past a graveyard. Tiptoeing through a minefield. Neither the courts nor election officials nor Congress want to touch ruling Donald Trump ineligible to serve as president.

Colorado Politics:

A Denver judge on Friday found Donald Trump remains eligible for the state’s 2024 presidential ballot even though he engaged in an insurrection, joining courts elsewhere that have rejected attempts to disqualify the leading Republican candidate.

District Court Judge Sarah B. Wallace determined the provision of the 14th Amendment barring insurrectionists from holding office does not apply to presidents and, therefore, does not disqualify Trump.

“While the Court agrees that there are persuasive arguments on both sides, the Court holds that the absence of the President from the list of positions to which the Amendment applies combined with the fact that Section Three specifies that the disqualifying oath is one to ‘support’ the Constitution whereas the Presidential oath is to ‘preserve, protect and defend’ the Constitution,” Wallace wrote.

‘Tis the season for reluctance

“To be clear, part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent,” she wrote in a Nov. 17 order.

Nonetheless, the 102-page order offered a damning critique of Trump’s conduct leading up to the Jan. 6, 2021 assault on the U.S. Capitol, and Wallace concluded Trump did, in fact, incite an insurrection to halt the certification of President Joe Biden’s victory.

Associated Press:

The decision by District Judge Sarah B. Wallace is the third ruling in a little over a week against lawsuits seeking to knock Trump off the ballot by citing Section 3 of the amendment. The Minnesota Supreme Court last week said Trump could remain on the primary ballot because political parties have sole choice over who appears, while a Michigan judge ruled that Congress is the proper forum for deciding whether Section 3 applies to Trump.

Three judges. Three different explanations for why they could not rule Donald Trump disqualified under the 14th Amendment from serving again in elected office.

Ruby Freeman knows well what it’s like to draw the wrath of the Trump cult. As do other election workers. Members of Congress and Secret Service members who sheltered in place during the January 6th attack on the Capitol by Trump supporters do too. Prosecutors involved in Trump cases in New York, Atlanta, and Washington, D.C. face a flood of threats and require beefed-up security details. Sen. Mitt Romney has spent $5,000/day on personal and family security since the Jan. 6 insurrection.

As we head into holiday season, we’ll repeatedly see Hans Gruber fall from the 30th floor of the Nakatomi Tower. But not before he ruins Joe Takagi’s London-made suit by splattering it with Takagi’s brains and blood. The priciest judge’s robes I found online are not nearly that expensive. Still, if I were wearing one I’d rather not see it ruined that way either.

How much of a factor in a judge’s decision-making in a Trump case is the deepening fog of threats, menace, and intimidation from Trump and his followers over Trump’s prosecutions and his attempts to return to the White House he called “a real dump“?

I don’t know. But I do know we put up with this shit. And I’m sick of it.