Here’s what SCOTUS should do with the Trump ballot cases

The US Supreme Court must understand that the disqualification of former President Donald J. Trump under Section 3 of 14th The recovery from running again for President of the United States is going exactly as it should. Maine’s secretary of state ruled in an administrative proceeding that Trump was disqualified, and the Colorado Supreme Court issued a similar ruling.

Both states follow the law set forth in the U.S. Constitution that anyone who has once taken an oath to support the Constitution, but has since “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies of the same,” does not may serve our country again. But four other states (Florida, Michigan, Minnesota, California) came out on the other side, while fourteen other states (Alaska, Arizona, Nevada, New Jersey, New Mexico, New York, Oregon, South Carolina, Texas, Vermont, Virginia, West Virginia, Wisconsin and Wyoming) still have pending disqualification cases. This makes for a potentially crazy map of states where Trump is on the ballot in some states but not others. There is nothing wrong with this. This is federalism at work.

Under the Constitution, the states have the primary authority to administer federal elections, with Congress also having the power to regulate how elections are conducted — such as voter registration. So the fact that who can run for office, who can vote, and the “time, place, and manner” of voting varies from state to state is normal — and perhaps the high court shouldn’t concern itself with those questions.

That being said, SCOTUS should not take up the final appeal of any of these cases. His discretion to hear the cases is complete and letting the various cases go to trial would be a non-reviewable decision on their part that would prevent them from repeating their gross interference in the 2000 presidential election where the Supreme Court, not the people, took George W. Bush 43rd president, and perhaps stem the drain on their confidence. But the justices — both liberal and conservative — will hardly be able to resist the glamor of taking on a case that could decide who will be president in 2024, and most legal experts think they will take the case.

If judges take the cases, then they should limit the questions they decide to those that most clearly bear on constitutional interpretation. Chief among these is the question of whether the President of the United States is an “employee” of the United States, as some, including Trump, argue that the President is not an employee of the United States and therefore the disqualification provision does not apply.

The justices must decide this question by assuming that the President is an officer of the United States. If we conclude otherwise, the question arises, what then is the president? Trump would like the answer to be that the president is an emperor or a king, not just an officer serving the constitution, and that’s what SCOTUS will anoint him if it concludes that presidents do not hold office.

Another question appropriate for resolution by the high court would be the question of what kind of process is required to disqualify Trump under the 14th Amendment. The provision — as argued by Professor Lawrence Tribe and former federal judge Michael Lustig — is self-executing, but “self-executing” still requires some action by someone. That someone is the state applying whatever process is required by its laws. If, as in Maine, the law requires the Secretary of State to make a determination, then that is the proper process in that state.

Disqualification is not a penalty or sanction and does not need the kind of due process protection in criminal law that is intended to protect the accused from unjust punishment.

SCOTUS should reject any argument that a criminal conviction is necessary for sedition. Conservative SCOTUS originalists should note that the plain language of the Disqualification Clause says nothing about criminal charges or convictions, so it would be an abuse of power for the Supreme Court to write this requirement into the Constitution.

Disqualification is not a penalty or sanction and does not need the kind of due process protection in criminal law that is intended to protect the accused from unjust punishment. per New York TimesProfessor William Baud – one of two conservative law professors who wrote a law review article concluding that Trump should be disqualified – put it this way: “The question of whether Donald Trump should go to prison is criminal trial officer,…

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