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What will (should) the Supreme Court do about Trump Bans?

What will (should) the Supreme Court do about Trump Bans?

It was recently reported that the Supreme Court will take up the Colorado Supreme Court decision that removed President Trump from the ballot in the Centennial State.  That comes as no surprise.  Various state courts and officials looking at the Fourteenth Amendment are arriving at opposite decisions regarding Trump’s eligibility to appear on the November ballots.  The crosscurrent of decisions has created political chaos and a constitutional crisis.  Only the U.S. Supreme Court can resolve the various issues.

The progressive establishment is proffering a narrative claiming that Section 3 of the Amendment clearly and definitively bans Trump from holding the office of President.   That sort of simplistic certainty may hold sway in the court-of-public-opinion in banning any person … 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.”

The ineligibility of a person to hold office after “engaging in insurrection or rebellion” is a provision of the FEDERAL Constitution. No state can nullify that provision.  Only Congress, by two-thirds vote, can “remove such ineligibility.”  

In the case of federal candidates, the Constitution and federal laws apply.  No state can override the federal ban on candidates for President who are younger than 35 years of age or a born citizen.   No state can elect U.S. senators younger than 30 years old or U.S. House members who are less than 25.  No state can elect as U.S. senator or House member who is not a legal resident of the state.  In the case of House members, states can create congressional districts for voting, but the states cannot require that members of Congress reside in the districts.

In terms of the qualifications and disqualifications of FEDERAL candidates, it is clearly the purview of the FEDERAL government.

In terms of the President of the United States, it is again the Constitution and federal laws that govern eligibility and ineligibility.  That strongly suggests that in terms of enforcing the insurrection ineligibility, it would require FEDERAL action and federal laws based on the Constitution. 

That would suggest that state courts play no role other than the management of elections in accordance with FEDERAL laws as they pertain to federal candidates.  And there is a federal law – 18 U.S. Code 2383, which states:

“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”

The problem remains.  It is as vague as Section 3, itself. There is no specific definition of an insurrection in the legal codes.  And it does not resolve the question as to whether state courts can enforce it.  We can look to the past to see how courts may have defined insurrection in real cases – and there are a few.

  1. In 1859, on the eve of the Civil War, John Brown was convicted of insurrection for an armed attack on Harper’s Ferry Arsenal as part of a plan to launch a slave uprising.
  2. Jefferson Davis was indicted for treason and insurrection in 1866 because of the Civil War.  He was never tried.  He was pardoned by President Andrew Johnson.
  3. Puerto Rican nationalists were convicted of insurrection in 1950 for armed attacks on a governor’s mansion and the U.S. Capitol and sentenced to prison.  There were eventually pardoned by President Carter in 1979, just prior to leaving office.
  4. Eugene Debs was convicted of espionage in 1919 by encouraging young men to resist the draft.  He was sentenced to 10 years in prison but was pardoned by President Harding in 1921.

With the possible exception of Debs, all the other cases were clearly armed actions designed to overthrow the government of the United States – even if for noble reasons as in the case of John Brown.  Also, these were all cases handled in the federal court system.

Since 1919, the legal threshold for criminal insurrection has been lowered – if not effectively eliminated.    None of the violent revolutionary activities of the 1960s – such as those engaged in by the Weathermen leaders Bill Ayers and Bernadette Dohrn or the occupation of Portland by a group holding a zone declared to be autonomous from the American government — were ever tried for insurrection.  And those convicted of armed insurrection were granted presidential pardons.

Throughout all the past cases, there has never been a clear definition of insurrection.  That seems to be the challenge of the current Supreme Court.

The Trump case is unique, of course.  He was the President of the United States, elected by the people through the Electoral College.  It is a national election carried out by Electors from the several states.

What the folks in Colorado and Maine – so far – are saying is that one court, one person in one state can essentially defeat a presidential candidate nationally by denying him or her both popular and electoral votes.  That simply cannot be allowed to stand.

What the Supreme Court should – and I hope will – do is declare that Section 3 of the Fourteenth Amendment can only be addressed by the federal government – Congress and the federal courts.  That means the possibility of Congress passing a law to define criminal insurrection more clearly — that a person so accused would have to be found guilty in a federal court before the insurrection clause of the Constitution can be invoked. It should clearly decide that states have no jurisdiction in the matter.

Since the eligibility to hold public office is exclusively determined by the federal government, it is reasonable to assume that only the federal government would be charged with determining ineligibility. So, there ‘tis.

About The Author

Larry Horist

So,there‘tis… The opinions, perspectives and analyses of Larry Horist Larry Horist is a businessman, conservative writer and political strategist with an extensive background in economics and public policy. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman. He has served as a consultant to the Nixon White House and travelled the country as a spokesman for President Reagan’s economic reforms. He has testified as an expert witness before numerous legislative bodies, including the U. S. Congress. Horist has lectured and taught courses at numerous colleges and universities, including Harvard, Northwestern, DePaul universities, Hope College and his alma mater, Knox College. He has been a guest on hundreds of public affairs talk shows, and hosted his own program, “Chicago In Sight,” on WIND radio. Horist was a one-time candidate for mayor of Chicago and served as Executive Director of the City Club of Chicago, where he led a successful two-year campaign to save the historic Chicago Theatre from the wrecking ball. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He is praised by readers for his style, substance and sense of humor. According to one reader, Horist is the “new Charles Krauthammer.” He is actively semi-retired in Boca Raton, Florida where he devotes his time to writing. So, there ‘tis is Horist’s signature sign off.

28 Comments

  1. Dan tyree

    He hasn’t been proven guilty yet. And might not. Sorry Frank. It’s the rules of law

    • Phyllis belcher

      Frank only wants the laws enforced if it doesn’t harm demoncrats.

      • Frank stetson

        Philless, that’s not true. I always say follow the law and take them all to court. Could care less about party.

  2. FRANK STETSON

    “In terms of the President of the United States, it is again the Constitution and federal laws that govern eligibility and ineligibility” and therefore State laws, some perhaps from 1779, have no bearing apparently according to Law expert Horist. Where was SCOTUS all this time? I mean there’s a hell of a lot more State Laws regarding eligibility than the 14th including all sorts of stuff. Each State requires filing fees, signatures of like 500 to 30,000 supporters. Some states bar candidates who sought and failed to secure the nomination of a political party from running as independents in the general election. All sorts of State Laws that Hoirst want the SCOTUS to mandate FED control. And 50 different versions no doubt.

    The appeal is much more about the applicability of the 14th, section 3, that it is of Colorado Election laws determining eligibility. They touch on nothing outside of the 14th, Section 3. And Colorado election laws may have little to do with the other 49 State versions. And EVEN if they shot Colorado down, and did what Larry suggests, take election laws away from the State to give them to the Fed because “In terms of the qualifications and disqualifications of FEDERAL candidates, it is clearly the purview of the FEDERAL government,” then they gonna need a much bigger boat to fix that at the State level.

    Here’s the appeal they will settle, note the two questions on the 14th, and one on the State’s ability to determine eligibility. And while the 14th could torch most of these bans, I am not sure Q3 even affects the Maine SoS decision, beyond the 14th and not just Colorado’s specific eligibility laws. IOW — if the Fed wants to step in and MANDATE State elections laws to the point of taking over for all 50 States, destroying this aspect of State’s rights, I think they may need a bigger boat. *https://www.supremecourt.gov/DocketPDF/23/23-719/294892/20240104135300932_20240103_Trump_v_Anderson__Cert_Petition%20FINAL.pdf*

    That said, Dan states: “He hasn’t been proven guilty yet. And might not. Sorry Frank. It’s the rules of law.” There is no rule of law that says the States cannot set their own election laws and act upon said law. They have practiced State’s Rights in this regard since the founding. So far, no one has said they have taken illegal actions. The question is the interpretation of the 14.3, not that someone broke the law. No one broke any laws. Period. After they shoot down, or clarify the 14th, chances are it would be breaking the law going forward but they cannot go backwards with new laws for existing non-crimes.

    In terms of Trump guilt, he is guilty of a number of things, liable for others, adjudicated in court. On insurrection, he is impeached for it, but not convicted, but this is Congress that impeaches, and not a court of law. That’s comes in what looks like April, May, stay tuned. And in regards to the 14th, that’s where SCOTUS comes in and can’t wait to see their results, especially after turning down Smith for his SCOTUS fast track request on THE INSURRECTION. They demurred on that one that could take Trump off the ticket nationally, but jump shift for the one that could add Trump to a State ballot. Gonna be a fun 2024.

    • Jim wampler

      Who hit you in the ass with a law book? You’re blabbing about shit that you know nothing about. Dumbass!!!!

      • Frank stetson

        Of course, he’s so busy wampling himself, he forgot facts, evidence, proof, or mentioning my fictional daughter.

        There’s nothing I said that requires a law degree to know. Perhaps if you has a HS degree, you would know that.

        Can’t wait to discuss. Or just continue the crap.

        • Jim wampler

          I have a college degree dumbass. That’s way above high school

      • bill

        Thank you! Took the words right as I was thinking them.,

    • larry Horist

      Frank Stetson … I known you are obsessed with being the counterpoint to everything I say, but you should care about looking stupid. You just do not get important distinctions. States are empowered to manage the methodology of elections. However, in the case of federal candidates, that cannot set the general eligibility requirements. As long as the state administrative requirements are legal and constitutional, the federal government stands aside. The FEDERAL government is the ultimate power, however. The federal government stepped in when Democrats in southern states established whites-only primaries. Again over poll taxes and literacy tests. Again over various means Democrats used to thwart black registration. Federal marshalls have been called in to monitor individual polling places in Chicago due to a history of vote fraud. Etc. Etc. Etc. The 14th Amendment — what it means and how it applies — is a federal issue and should be handled by the federal courts so that there is national unity in presidential eligibility or ineligibility. That is the point. Your lame opinions and long, repetitious, off the subject, braggadocious and childish rants seem to be driven by ignorance or obsessive animosity. Your obsession to be the constant critic of me and PBP is leading you to becoming more mendacious, more foolish and more unhinged. At least that is my opinion. But you do serve as one of the better examples of the looney left. Thanks for that.

      • bill

        You may want to give him the dictionary to look up some of those big words you used. I’m pretty sure he has no idea what mendacious means. Good come back by the way!

      • FRANK STETSON

        Horist: in all that dubious dialog marked by demeaning demagoguery versus actual discussion, you didn’t answer a simple question: “Where was SCOTUS all this time?” But you did step into the gutter and have the time to say: “obsessed, looking stupid, lame opinions, long, repetitious, off the subject, braggadocious and childish rants, ignorance, obsessive animosity, obsession, constant critic of me and PBP, more mendacious, more foolish, more unhinged, looney left. At least that is my opinion.”

        There is not one demeaning part of my tome, no names, no cat calls. I realize Horist must wallow in the gutter to get paid, but to lower one’s self is uncalled for. I am beginning to question his character. For the hundredth time, enough with the ad hominem. You can be better than that.

        What I stated was that I expect this appeal to be more about the 14th than it is about Colorado eligibility process regulations and laws because the IS a national issue and the Colorado voting eligibility process is not national and may even be unique to Colorado. The text of the appeal seems to confirm that. And IF the Fed IS responsible for State eligibility rules and laws as Horist concludes, without support, where have they been?

        From CRS, Library of Congress think tank: “Congress does not have general legislative authority to regulate the manner and procedures used for elections at the state and local level. Nor, as noted above, does it appear to have complete authority to regulate presidential elections. Congress does, however, have extensive authority to prevent voter disenfranchisement by a state or locality. For instance, the Civil War Amendments,35 the Nineteenth Amendment,36 the Twenty-fourth Amendment,37 and the Twenty-sixth Amendment38 all seek to prevent discrimination in access to voting, and authorize Congress to exercise power over federal, state, and local elections to implement these protections.39 The most significant of these provisions is Congress’s enforcement authority under the Fourteenth Amendment to provide for equal protection and under the Fifteenth Amendment to prevent disenfranchisement based on race.”

        The article responds to Horist’s assertion that the FED controls elections as: “There are also a variety of other constitutional provisions that provide Congress the power to regulate all elections. This includes Congress’s authority under the Civil War Amendments—Thirteenth, Fourteenth, and Fifteenth—and the Nineteenth, Twenty-fourth, and the Twenty-sixth Amendments, which provide Congress the power to prevent various types of discrimination in access to voting. Further, to the extent that there are gaps in Congress’s power to regulate federal, state, or local elections, Congress might use the Spending Clause to condition the receipt of federal monies upon compliance with federal requirements. This power would extend to nonfederal elections, over which Congress has little textual authority.” Generally, it gets involved over civil rights, which actually could come into play with the 14th, section 3. But not in State eligibility rules of which I noted a number in my original post.
        The are plenty of other expert opinions mirroring the CRS.

        Hoirst says that States “in the case of federal candidates, that cannot set the general eligibility requirements” which I have shown that they already set them, and appear to have the right to do so for no other reason that they already do and neither the SCOTUS nor anyone else has said differently, and this case, IMO, will not change that. It will change how the 14th, Section 3 is interpreted. Which is what my post indicated to begin with.

        As far as Dems subverting the process in history: red herring having nothing to do with either Horist’s or my arguments.

        As far as Horist’s point that it’s about clarifying the 14th, Section 3, for that nation, seems redundant with my conclusion, but yeah, spot on Mr. Horist.

        And then I also answered Dan which you found boring or directed to you perhaps. I did indicate it was a Dan response. Sorry, Dan.

        As far as you seeing me as the looney left. Thanks. However, you have to know on the money, the economy, law, finance that I am to the right of you who represents the tax-cut-and-spend debt-ridden Republicans and loves the policies and pardons of Donald J. Trump and while planning to vote for retribution, revenge, being dictator for a day (sure, a day), and cleansing America’s blood for purity. Unlike you, I even know how Social Security and Medicare are structured, financed, etc. And remember, 1,000 kids still have not found their parents from Horist’s last vote for this man.

        Hope that clarifies. Hope any future response will skip the vitriol and the overuse of the word: mendacious.

        • FRANK STETSON

          Hoirst, sorry for the delay, but I was censored for including a link bracketed by “*”s. Tried everything, that’s why the CRS story link is excluded.

    • gary hein

      Impeachment is a political process for the GOP.

  3. Frank stetson

    Well, that’s some great college level discussion. Thanks for the meaningful input stated so constructively. College: where you learned 4 year’s education is “way above” and couldn’t wampler a woman for love nor money.

  4. Andrew Gutterman

    14th was passed after the CW to prevent former people from the Confederacy from being elected to the US. Virtually none of them were convicted of any crime, they just were not allowed to run for office or get elected. Based on everything we know about Trump he qualifies as an insurrectionist by any common sense interpretation of what the word means.

  5. AC

    Larry, Frank, Dan, and others, you ‘ll only need patience. SCOTUS will rule on the question. How it rules will be debated/argued for long into the future, no doubt. Either way it decides that event may set in motion more chaos.
    May the chips fall where they may. And, may those who act on this, do so with mature adult calm and that wisdom will prevail.
    History is not encouraging on this score

    Once upon a time people knew what “Good Form” was, back then, and they practiced it. Present time, good form happens to be a phenomena that was and then it isn’t.

  6. JoeyP

    INNOCENT until PROVEN GUILTY (This AIN’T the (former – get that?) U.S.S.R.) . . . leave him ON the BALLOT. Democrats – you LOSE!

    • Andrew Gutterman

      Does not apply to the 14th. Very few of the Confederates were even tried, the fact that they were Confederates disqualified them from office. Ditto for Trump.

      • Jim wampler

        Trump wasn’t a confederate you idiot. Where the hell did you learn to ?. Your sisters tampon box?

  7. Darren

    TOO many people care to much about what Frank thinks!
    Thank you Larry for the article and the facts you addressed.
    Its all ( Sticks and Stones my friends ).

  8. Andrew Gutterman

    Why is it that everyone on the right can ONLY communicate by insulting people? (I never had a sister, but that does not matter to right-winger’s)

    I was not saying that Trump was a Confederate, especially since Trump would never get caught dead in a soldier’s uniform. He detests anything to do with military life. I was just pointing out that the 14th was designed to prevent Confederates or anyone else engaging in insurrection from holding public office, irrespective of having been convicted or not.

    • FRANK STETSON

      And he’s college-educated too. Wampler gets off fantasizing about fictional young women for people he considers his adversaries. Someday we hope that he will figure out that all Americans are in this together and demeaning each other over issues versus discussion and learning, is a fool’s mission.

      • Dan tyree

        I can read music. Does that count?

  9. bill

    Here we have a President that has not in 9 years been convicted of a single crime and yet there are people out there claiming he is guilty. What kind of world do we live in now where a person is guilty without proof beyond a shadow of a doubt? Sounds like the old west when people couldn’t even read so I guess that makes sense since the Federal government took over education. I read a lot of comments, and it certainly shows how many people calling for a Trump to be charged without proof for an insurrection have a fifth-grade education at best. Kinda brings back memories of the “Beverly Hillbillies” and the cement pond. At least they were kind and trusted people giving them the benefit of doubt.

    • Mike f

      Bill, I have and will not say trump is guilty of insurrection. However, so many of his actions make it clear that he is totally unworthy to be president of the US, that I have to wonder about the fools that continue to support him-when did the populace of the United States become so ignorant (reaching out to a foreign power to dig up dirt on his political opponent, stealing classified documents to do who knows what with, bringing a mass of people to the nation’s capital to disrupt congress after he knew he lost-oh, I forgot-he didn’t know he lost, he just lost 60 court cases he brought regarding the election, all the way to the Supreme Court-can you say ignorant?)

      • Harold blankenship

        I can say courts being bribed or threatened. The election was stolen. Ballots delivered by unguarded trucks and strong evidence of dead people voting. The list is long. But if the courts and law enforcement refusing to enforce the law I don’t blame the January 6 patriots. Just don’t try it again.

        • FRANK STETSON

          Blakenbrain: You cannot prove the election was stolen with any relevant facts, evidence, or even a good story. Although the Italian satellite one never gets old. Most of the other REPUBLICAN candidates proclaimed it is not stolen. The court refuted your claims over 65 times. A half dozen recounts, conducted by YOUR people, said you are full of shit. And Georgia announced someone did try to rig the election and those 19, including Trump are on trial. Four have already said: “yup, I did it,” and three of them were Trump’s own lawyers.

          You are pissing away your time and money idolizing this schmuck who is a sexual abuser who defames others, cheats at business, cheats at taxes, cheats on his pregnant communist wife, lives with communists under his own roof, and many other last names. His speech to the judge yesterday was an unhinged rant of no value except shilling to folks like you to ante up more money for his other legal cases, not his campaign even. He disobeyed every judicial order on his speaking, said nothing of value to the case, and at the end of the month will receive his penalty as he is already deemed liable in the case at his own stupid request for a bench trial. Guess after Carroll he thought the judge would punish him less than his peers.

          On Tuesday, the second EJ Carroll defamation case starts. Trump is toast. The judge aims to rule on the Trump NY civil fraud case by end of January. He is liable, this ruling is about punishment with $370M and the right to do business in NY at stake for the Trump family. March 25, the NY election case might start, May 20 Mar A Loser Doc case may start. Expect April May start for DC. Should be a hot 2024. You’re gonna get burned for backing this loser.

  10. Charles

    It is a clear Constitutional issue. Since there was no insurrection in 2020 or 2021 unless Democrat election cheating is an insurrection then there no Constitutional reason to bar Trump. A riot that was not planned by Trump and infact was opposed by Trumps failed efforts to get troops that resulted in efforts of Pelosi and General Miley to keep troop from being there to prevent riot would indicate any insurrection was fermented by those two.