Not Even Close

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I went into some detail in the latest episode of The Josh Marshall Podcast on my thoughts on efforts to bar Trump from appearing on the 2024 presidential ballot. My general view remains one of well-wishing disinterest. The 2024 election is going to be decided not by eligibility challenges but by results of the election as mediated by the electoral college. But I found this perspective from TPM Reader JS very interesting.

There really is no good legal argument against Trump being disqualified by the 14th Amendment. He’s not eligible under it. But as you argued there’s more to it. I also think the “law” is pretty clear on the platinum coin, but it was the economists who said it wouldn’t actually solve the problem. Here I just think the Supremes will bullshit their way through it, like you said.

By virtue of having been a JAG in a dual state/federal setup like the National Guard makes all of the insurrection stuff something you deal with more routinely. Think sending in the 101st to integrate Little Rock. That was—had to be—an “insurrection” or else it would have been the Arkansas National Guard because of posse comitatus.

Insurrection is in the Constitution elsewhere also. It’s in the list of Congress’s powers to call forth the militia to “suppress Insurrections.” You could tell me better than I could tell you about the miscellaneous insurrections that occurred around the time of the founding and since. The Civil War wasn’t the only one. Governors also have this power. So there’s actually a fair amount of law on this topic. This is really what the Second Amendment is about, by the way.

It’s just clear from the language that it was intended to be broad (sequences of disjunctive list items: insurrection *or* rebellion *or* given aid *or* comfort). I haven’t looked at the papers of the debates on the 14th in a very long time, but my memory is that there was never any restriction of Constitutional “insurrection” to the Civil War and since then the term as it is used to define what domestic military may be used and so on is mature, and current.

If a school in Little Rock not following a court order to integrate and the locals not helping is an insurrection, trying to murder the Vice President and end the count of the electoral votes is safely inside the four corners of the present legal meaning.

I do think it’s important that there’s no real good argument here. Kate was making the point that you can’t worry about what they will say and that’s true, but it actually does help when there’s no truth to it. You can get so cynical that you don’t see the difference, but there is one.

They will probably have to make some kind of structural democratic argument to save Trump, just like how they had to make a lefty equal protection argument to save Bush. I’m sure they’ll do it, but they will have to clown themselves in the process.

So if the Supreme Court needs to demonstrate its corruption once more to save Republicans and Trump, that’s fine with me. I think the 11-d chess here works backwards from what the bedwetters think. I think this is another brick in the Court Reform wall

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