Mr. Baron is an attorney who has represented many institutions involved in the international markets and advised various parts of the federal government on economic issues.
The Supreme Court’s majority would be more accurately described as “Trump’s Majority.” They started the year with a holding that perverted the Constitution to hold that only Congress, and not the states, may bar a candidate from running under the disqualifications listed in Section 3 of the 14th Amendment, which disqualifies anyone who’s engaged in insurrection. The holding degraded disqualification under Section 3 to a political decision. Now, any insurrectionist whose party can raise a majority vote in Congress can be President. The more rational holding legally would have been to affirm Colorado’s decision that Trump is an insurrectionist and thus ineligible to be President. The court blew an opportunity to mitigate the anxiety and distrust infecting the country.
The justices noted but didn’t disagree with two Colorado courts’ factual findings that Trump had “engaged in insurrection.” SCOTUS had previously held that a state court’s factual findings must be accepted by federal courts unless they’re clearly erroneous. No factual error was found. Yet SCOTUS chose to let a judicially determined insurrectionist run for President.
To justify this decision, the majority relied on Section 5 of the 14th Amendment, which provides “Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” which Congress has not done. But it is Section 3, not Section 5, of the 14th Amendment of that gives Congress the power to ban from or restore candidates to state ballots by a two-thirds vote by removing a disqualification. Inexplicably, the majority held that Section 3 merely “reinforces” Section 5, which empowers Congress to “prescribe” how determinations of eligibility should be made.
Curiously, the word “prescribe” is nowhere in Section 5. The majority opinion’s focus on Section 5 constitutes an end-run around Section 3. It’s common sense that the more demanding exercise of power (a two-thirds vote) would replace — not “reinforce” — the easier one (a simple majority). As the Court’s minority’s opinion put it, “It is hard to understand why the Constitution would require a Congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation.”
Although there was no dissent, the minority accused the majority of being gratuitous in an attempt to insulate Trump and all other insurrectionists from future challenges to their eligibility for federal office.
This was just one Supreme Court holding that stretched the Constitution to protect Trump. Here are others that are equally or more egregious
Why We Need to Recuse the Whole Supreme Court Majority
The Manipulated Path of Conservative Justices to the Supreme Court
For Donald Trump, Undue Delay Is the Name of the Game | Opinion
