by Joseph DeMaio, ©2024
(Mar. 4, 2024) — Thank you…, thank you…, yes, your humble servant was right. The Colorado Supreme Court’s dumb decision upholding the Colorado Secretary of State’s determination to exclude President Trump from the primary ballot was stupid when rendered, as discussed here, and has now been reversed – ahem…, 9-zip – by the Supreme Court in Trump v. Anderson.
Reduced to its essence, the per curiam (i.e., no single Justice claims authorship) holds that under principles of federalism and the historical relationship between the states and the federal government – including the Congress – Colorado, as a single state of the union, lacked the power or authority to ban from the ballot under the “insurrection” clause of the 14th Amendment a candidate for a federal office such as the presidency. While states retain the power to ban state candidates and officials from their ballot, that power cannot – and now, clearly does not – extend to candidates for federal offices.
The ruling is refreshingly candid, straightforward and easily understood…, even by a brain-dead Neanderthal such as the slug at 1600, although perhaps Dr. Jill will need to read it to him slowly, while he licks his bed-time ice cream cone…., with his adult drip bib in place.
That reality aside, of course, other knuckle-dragging Democrats who may be not quite as brain-dead as Brandon (e.g., Representative Jamie Raskin (D. Md.)) vow to “work on” legislation to accomplish via Congress that which the USSC has said the State of Colorado cannot unilaterally do itself. Even Raskin concedes any bill he sponsored would be DOA in the House, but “we have to try and do it.” Your servant awaits any mainstream media outlet labeling Raskin as resembling “Don Quixote.”
People like Raskin are not that much different than the Japanese kamikaze pilots at the end of World War II: prepared to keep “45” from again becoming president or die trying. Memo to Raskin: knock yourself out…, and take some of your pals with you.
Turning to one interesting aspect of the USSC Trump v. Anderson decision, although it was “unanimous” in the sense that all nine Justices concurred in the “judgment” – i.e., that the Colorado Supreme Court’s judgment barring President Trump from that state’s primary ballot must be reversed – several Justices filed “conditioning” statements.
Justice Barrett filed one “concurring in part” and “concurring in the judgment” and called for calm. She notes that “this is not the time to amplify disagreement with stridency.” Apparently Raskin did not read that part. On the other hand, the three Democrat-appointed Justices – Sotomayor, Kagan and Jackson – concurring only in “the judgment,” complain that the main opinion goes “too far” in addressing the issue and purports to decide “momentous and difficult issues unnecessarily.”
Right. Perish the thought that the USSC should try to explain how in its view – the main one that counts – the Constitution and its amendments work in order to give guidance to the nation (and its lawyers) on appropriate, and inappropriate, future decisions regarding proper courses of action to be followed.
Significantly, the Sotomayor/Kagan/Jackson “concurring in judgment [only]” statement sounds a lot like a formal dissent. But in order to pay “lip service” to the goal of issuing a unanimous decision in an attempt to “calm the waters,” as Justice Barrett suggested, they characterize their statement as a “protest.” Specifically, they state that they “protest the majority’s effort to use this case to define the limits of federal enforcement of … [Clause 3 of the 14th Amendment].”
First, the issue in the case was not the limitation of federal enforcement: it was the usurpation of federal enforcement by Colorado that was wrong. The “protesting” Justices (or their Ivy-league law clerks) may have misread the record from the court below.
Second, a “per curiam” opinion does not normally involve a “majority” view or, for that matter, a “minority” view. The term “per curiam” means “by the court,” meaning the entire court. A “majority” opinion is normally a signal that one or more “dissenting” opinions exist. While isolated exceptions exist, the Sotomayor/Kagan/Jackson statement, again, reads more like a dissent than anything else.
Finally, the Sotomayor/Kagan/Jackson statement violates its own claim that the “majority” opinion “went too far.” Specifically, in addressing whether Cl. 3 of the 14th Amendment is “self-executing,” i.e., operational without the need for implementing congressional legislation, their statement elaborates on other examples of self-executing provisions of the Constitution. This is done seemingly in further opining that self-executing provisions in contexts other than the 14th Amendment and in future controversies are relevant. While those observations may be dictum, they are nonetheless set forth in their statement as being material to their “protest” of the “majority” (i.e., per curiam) opinion.
That’s right, Virginia: they specifically reference Art. 2, § 1, Cl. 5 of the Constitution, viz., the “Eligibility Clause” (see p. 4, “protest” statement) which has been exhaustively addressed by your humble servant and others here at The P&E for many years. While their statement carelessly labels it as the “Presidential Qualifications” clause (addressed here), they specifically recognize it as being an example of the primacy of self-executing constitutional provisions.
And while the USSC has thus far displayed spectacular indifference to addressing and resolving the issue of what the Founders intended and meant when adopting the “natural born Citizen” (“nbC”) restriction in the Constitution, the fact that even Sotomayor, Kagan and Jackson recognize the self-executing nature of the Eligibility Clause is a significant step in the right direction. If and/or when the Court decides it can no longer “evade” the nbC issue and actually accepts a case involving the issue, rest assured, the “Sotomayor/Kagan/Jackson protest” statement will be referenced.
In the meantime, President Trump will lawfully appear on the Colorado primary election ballots. And if the election officials and judges in Maine and Illinois can read plain English – a rebuttable presumption in Democrat-controlled jurisdictions – the same result will obtain in those states as well.
Is that a glimmer of hope and rational thought to be seen peeking over the horizon?
IMO if there ever was a chance of the Supreme Court making a logical decision on Natural Born Citizen that chance disappeared in 2009 when Chief Justice John Roberts sworn-in the ineligible, identity fraud con-artist Barack Hussein Obama. If NBC were to be addressed now the conclusion will be Obama is eligible……..That is reason number one why the Supreme Court is “avoiding” that issue………….
SCOTUS can’t hear an eligibility challenge if no one files one.
Are you up to the task?
From the author:
—————-
If Johnathan J has litigant standing (unknown) and believes that VP Kamala Harris is ineligible, he should indeed file a challenge.
One person who does possess litigant standing today is Speaker of the House Michael Johnson. But it is not known if he even understands the nbC issue beyond reading the misinforming gruel pumped out on the topic by the Congressional Research Service.
Many states have nominal standing requirements for eligibility challenges. Dozens of state-level eligibility challenges have filed over the years, especially in 2008, 2012, and 2016.
From the author:
——————
Apart from the flawed (and goofy) 2009 opinion of the Indiana Court of Appeals in the Ankeny case, virtually all of the cases coming before state courts, even with varying or different “standing” criteria, have been dismissed.
And if they escaped from a state court on a certiorari petition to the U.S. Supreme Court, the door got slammed on them there too, and for the same reason: lack of litigant standing.
In 2016, for example, the Pennsylvania state courts ruled on the merits that Cruz was a natural-born citizen. When SCOTUS denied certiorari in that case, it didn’t cite “litigant standing” as the basis for its denial.
Response from Joseph DeMaio:
—————————–
When the Supreme Court denies certiorari in any case, it is rare for the denial to state the basis for the order of denial unless a Justice decides to file a separate “opinion relating to orders.” Such an opinion would set forth that Justice’s view as to whether certiorari should have been granted or why, in particular, it was properly denied. In the Cruz case, neither happened.
Note that your servant’s prior response included the caveat that “virtually” all of the “eligibility” cases were dismissed in the lower courts for lack of standing. That is an accurate statement.
But even in Cruz, where the Pennsylvania Supreme Court merely “affirmed,” without an opinion, trial court Judge Pellegrini’s substantive decision that Senator Cruz was, purportedly, an nbC, the U.S. Supreme Court’s denial of certiorari – without comment or any “opinion relating to orders” — does not constitute a precedential ruling of the USSC on the nbC issue.
A denial of certiorari makes the Pellegrini decision final and binding in Pennsylvania alone, and nowhere else. It might be cited elsewhere as being purportedly persuasive, but it is not binding anywhere but in Pennsylvania unless it is adopted by the highest court of that “elsewhere” state. If such an adoption — not merely a reference or citation – has occurred elsewhere, your servant invites Johnathan J. to provide a citation to it.
The “standing” issue aside, unless and until the USSC renders a decision on the merits in a case directly involving the nbC issue, it will remain unresolved. If such a USSC decision were to hold that a “natural born Citizen,” as used by the Founders in the Constitution, means merely a “citizen at/by birth” no matter where born and regardless of the U.S. citizenship of both parents, then the debate may be at an end…, for the time being.
At the present time, that is not the case…, which is why these exchanges at The P&E continue. Hopefully, a fully-informed USSC would not reach that “citizen at/by birth” conclusion.
Standing isn’t a concern, as there have been many on-the-merits rulings in various states (Arizona being yet another example). SCOTUS had an opportunity to address the issue on the merits in the Pennsylvania, and there’s no indication it didn’t because it believed the Pennsylvania litigant somehow didn’t have standing. The real problem is no one filed eligibility challenges against Haley or Ramaswamy, to press the matter to SCOTUS.
From Joseph DeMaio:
——————–
There are many factors entering into a decision to grant (or deny) a certiorari petition. One reason, as summarized here, is that unless four of the nine Justices agree that a certiorari petition should be granted, it will be denied. Stated otherwise, even if three Justices agree that the petition should be granted, it will most likely be denied.
To quote from the summary source linked above: “A decision to deny certiorari does not necessarily imply that the higher court agrees with the lower court’s ruling; instead, it simply means that fewer than four justices determined that the circumstances of the decision of the lower court warrant a review by the Supreme Court.”
Translation: a denial of certiorari does not equate to binding USSC precedent. Full stop.
And SCOTUS can’t grant or deny certiorari until someone files an eligibility challenge and then pursues appellate review. “Litigant standing” isn’t the issue, lack of litigants is.
From the author:
——————–
A litigant with standing existed in former Speaker of the House Kevin McCarthy, discussed here: A Modest Proposal 4.0 – The Post & Email (thepostemail.com). Substitute the name of current Speaker Michael Johnson into the calculus, and the same conclusion emerges…, but the same result will likely follow: indifference and no action.
But much like the denial of certiorari by the USSC, indifference does not mean that the substantive merit of the proposed course of action is in error. It only means that no Speaker has yet shown the backbone to start walking down that path.
The Speaker of the House doesn’t presently have federal standing: If the vice presidency is vacant, the president nominates a new vice president, subject to congressional confirmation. The Speaker does not automatically become the vice president. Once the current vice president is formally the vice president nominee, state eligibility challenges then could be filed to preclude her from appearing on ballots, but will anyone actually do so?
Reply from the author:
————————–
The Speaker does not [upon a vacancy in the vice presidency] automatically become the vice president. Once the current vice president is formally the vice president nominee, state eligibility challenges then could be filed….”
Huh?
Of course the Speaker does not “automatically become the vice president.” That result has never been posited. The issue instead is who becomes president upon his/her death or incapacity.
Because under federal law the Speaker is second in line to the presidency after the vice president, if the president dies — as opposed to becoming merely incapacitated — the 25th Amendment immediately elevates the vice president to the presidency. If a president is merely incapacitated and unable to perform his/her duties, the vice president then becomes only the “Acting President.”
Because there is substantial evidence that Kamala Harris is not constitutionally-eligible to either the presidency or the vice presidency, if the Speaker waited too long to bring an action challenging her purported eligibility, the president’s demise – as opposed to incapacitation — would instantly moot his challenge.
Accordingly, the Speaker has present “litigant standing” – a “particularized stake in the outcome” of the challenge – to bring an action today. If he waits, he could be out of luck. Rocket science, this is not.
As the current president is presently neither dead nor disabled, the Speaker presently has no standing to challenge the vice president’s eligibility.
From the author:
——————-
At least the commenter now sees the issue. However, the commenter could benefit by doing some additional research on the distinction between “litigant standing” and “controversy ripeness.”
Today, litigant standing in Speaker Johnson plainly exists, but ripeness is another question. However, if the slug at 1600 takes another tumble, both principles could come to a front burner immediately. And on full boil.