The podcast discusses the oral argument in the Trump v. Anderson case, highlighting mistaken representations and key lines of argument. It analyzes various topics including state offices, term limits, voting against longevity in office, and complexities of enforcing rules for sitting officers. The potential consequences of Jonathan Mitchell's statements and the role of the Supreme Court in presidential elections are also explored.
States have the power to enforce Section 3 of the 14th Amendment on their own.
Ballot access rules for state elections should be considered separate from rulings against sitting officers.
Legislation is necessary to enforce the prohibition of holding office under the 14th Amendment.
Deep dives
Main ideas: 14th Amendment Section 3 and the oral arguments
The podcast episode discusses the oral arguments in the Trump versus Anderson case, which considered the disqualification of Donald Trump from the Colorado primary ballot due to 14th Amendment Section 3. The episode highlights the importance of the self-execution concept and debates whether states can enforce Section 3 on their own. The argument revolves around Griffin's case, congressional enacting statutes, and the practical considerations of enforcing Section 3 on sitting officers. The hosts also address the issue of preemption, state court jurisdiction, and ballot access rules for state and presidential elections.
Inconsistencies in arguments on self-execution and enforcement
The host dissects the arguments made by attorney Mitchell regarding self-execution and enforcement of 14th Amendment Section 3. They critique the reliance on Griffin's case, a non-presidential decision, as the backdrop for subsequent legislation and assert that it does not preclude states from enforcing Section 3. Additionally, they point out the lack of relevance of term limits precedent and question the argument's complexity when it comes to sitting officers versus candidates. The hosts emphasize that ballot access rules should be considered within the conventional domain of state authority and are distinct from rulings against sitting officers. They challenge the idea that Section 3 requires federal execution and address Justice Kagan's point on the preemption of state jurisdiction.
Historical context and legislative intent of the 14th Amendment
The hosts delve into the historical context and legislative intent of the 14th Amendment Section 3. They highlight the unique concerns and motive behind the Amendment's adoption, such as preventing individuals like Jeff Davis from running for president. They argue that the timing and dynamics of the Amendment's ratification and subsequent events, including vetoing possibilities by President Andrew Johnson, support the claim that implementing legislation was not required. They also discuss the significance of early implementation of Section 3 in several states and the lack of parliamentary measures in the Constitution for state elections and presidential elections. The hosts counter the notion that states are constrained by Griffin's case and contend that the greater power of states to exclude ineligible candidates from the ballot overrides the perceived lesser power requiring a congressional statute.
Challenges to the logic and consistency of arguments
Throughout the podcast episode, the hosts challenge the logic and consistency of the arguments presented regarding self-execution, preemption, and enforcement of 14th Amendment Section 3. They dissect the blend of originalist and precedent-based claims made by attorney Mitchell and question their application to ballot access rules and state elections. The hosts critique the reliance on the Griffin's case, the Thornton case, and the McClong and Tarble cases, highlighting the mismatches and the peculiarities of each. They conclude that the arguments presented fail to support the claim that states cannot enforce Section 3 on their own and emphasize the need for a thorough and accurate judicial opinion.
Chase's opinion in Griffin's case and the need for legislation
Chief Justice Chase opined in Griffin's case that the prohibition to hold office under the 40th amendment did not directly remove individuals in office, but required legislation by Congress for their removal. This distinction shows the need for legislation to enforce the prohibition.
The importance of Grant's support for Section 3 of the 14th Amendment
While Chief Justice Chase's opinion is significant, the podcast highlights the importance of President Grant's support for Section 3 of the 14th Amendment. Grant's backing, along with figures like Canby and Sherman, holds weight in understanding the historical context and the intent behind the amendment. However, the podcast criticizes Murray for not emphasizing Grant's support and historical significance.
EARLY UPLOAD - The Supreme Court heard oral arguments in Trump v. Anderson on Thursday, and we were so alarmed by the errant direction they took that we decided to take to the air early. Here are key clips from the argument dissected - exposed, really - to reveal the mistaken representations of the meaning of certain cases; the ignoring of key facts which then distort others; the absence of key lines of argument; and the danger that the Court may be headed for another debacle on the scale of Bush v. Gore. Professor Amar “slows everything down” so the sometimes subtle misdirection that a fast-paced oral argument can induce is neutralized, creating clarity that we can only hope some Justice or some clerk sees in time. This episode is posted 4 days early for this reason, and next week’s will follow later this week as well. CLE credit is available from podcast.njsba.com beginning Monday, February 12.
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